McKinney v. Colvin

Filing 21

RULING (see attached) ADOPTING AND SUPPLEMENTING Judge Merriam's 20 Recommended Ruling. The Court thereby GRANTS IN PART Plaintiff's 13 Motion for Judgment on the Pleadings, and DENIES Defendant's 16 Motion to A ffirm the Decision of the Commissioner. The Court directs that this case be remanded to the Commissioner for further proceedings consistent with Judge Merriam's Recommended Ruling as supplemented by the attached Ruling. The Clerk is directed to close the case. Signed by Judge Charles S. Haight, Jr. on March 25, 2016. (White, B.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
KATRINA R. McKINNEY,
Plaintiff,
v.

3:14-cv-01127 (CSH)

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.

RULING ADOPTING AND SUPPLEMENTING RECOMMENDED RULING
HAIGHT, Senior District Judge:
Plaintiff Katrina R. McKinney applied to the Social Security Administration (the "SSA") for
supplemental security income on December 8, 2011.1 The SSA denied McKinney's application in
a written decision on July 26, 2013 (Ronald J. Thomas, Administrative Law Judge), which the
Defendant Commissioner affirmed on appeal. McKinney brought the instant action under Section
205(g) of the Social Security Act as amended, 42 U.S.C. § 405(g), to obtain a review of the
Commissioner's decision. McKinney moved for an order reversing the Commissioner's decision,
[Doc. 13], and the Commissioner cross-moved for an order of affirmance, [Doc. 16]. On August 24,
2015, Magistrate Judge Sarah A. L. Merriam issued a Recommended Ruling granting McKinney's
motion, and denying the Commissioner's, in light of the ALJ's failure to adhere to 20 C.F.R. §
404.1527(c)(2), commonly known as the "treating physician rule." Doc. 20.2 In consequence, Judge

1

As discussed in the Recommended Ruling, the ALJ's decision erroneously states the
application date to have been October 24, 2011. Doc. 20, at 8 n.8.
2

Familiarity with the Recommended Ruling, [Doc. 20], is assumed.

Merriam recommended remanding the case for "the ALJ [to] reweigh the medical opinion evidence
and reevaulate plaintiff's credibility and RFC." Doc. 20, at 27.
I.

Standard of Review
Defendant elected not to file an objection to Judge Merriam's ruling, which means that this

Court reviews her decision only for "clear error." See 28 U.S.C. § 636(b)(2); Bandhan v. Lab. Corp.
of Am., 234 F. Supp.2d 313, 316 (S.D.N.Y. 2002) (a "district court evaluating a Magistrate's report
may adopt those portions of the report to which no 'specific, written objection' is made, as long as
those sections are not clearly erroneous" (quoting Fed. R. Civ. P. 72(b)).
II.

Discussion
Judge Merriam concluded that for a number of reasons, "the ALJ erred in his application of

the treating physician rule to Dr. Zachmann's opinion." Doc. 20, at 26. Dr. Zachmann was
McKinney's treating psychiatrist. Not only was Judge Merriam's conclusion "not clearly erroneous,"
it was manifestly correct. The case must accordingly be remanded to the Commissioner, as Judge
Merriam recommended.
This Court's review of the case indicates that it is necessary to supplement the order for
remand in certain respects. Judge Merriam held that, "[i]n light of [the] finding [that the "treating
physician rule" was not followed], the Court need not reach the merits of plaintiff's remaining
arguments." Doc. 20, at 26. Judge Merriam came to that conclusion in light of the standard of
review for an SSA appeal in federal district court, which she correctly summarized as follows:
First, the court must decide whether the Commissioner applied the
correct legal principles in making the determination. Second, the
court must decide whether the determination is supported by
substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.
1998). The Court does not reach the second stage of review –
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evaluating whether substantial evidence supports the ALJ's
conclusion – if the Court determines that the ALJ failed to apply
the law correctly.
Doc. 20, at 3-4 (emphases provided by Judge Merriam).
Judge Merriam is correct that a federal district court should not address arguments as to
whether "substantial evidence" supports an ALJ's decision where that court finds the ALJ's decision,
in the first instance, to be legally defective. See, e.g., Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir.
1999) ("the Court must first review the ALJ's decision for correct legal principles before applying
the substantial evidence standard to uphold a finding of no disability."); Meadors v. Astrue, 370 F.
App'x 179, 184 (2d Cir. 2010) ("Because the ALJ neglected to engage in the proper legal standard
we cannot subject his determination to meaningful review"). Judge Merriam was therefore also
correct in determining that, once she found a violation of the treating physician rule, she was not in
a position to resolve McKinney's allegations that the ALJ's findings were not supported by
substantial evidence. See Golden v. Sec. of Health & Human Servs., 740 F. Supp. 955, 960
(W.D.N.Y. 1990) ("Where the treating physician rule has been applied incorrectly, a decision by the
Secretary denying benefits cannot be upheld on the grounds that the denial is supported by
substantial evidence" (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)))
However, Judge Merriam's recommended ruling omits analysis as to McKinney's other
allegations of legal error, alleged legal deficiencies which are separate and apart from McKinney's
argument as to the treating physician rule. Specifically, McKinney argues that: (i) the ALJ violated
20 C.F.R. § 416.912(d) by failing to request an opinion from another treating physician in addition
to Dr. Zachmann, [Doc. 13-1, at 12-14]; and (ii) the ALJ violated 20 C.F.R. § 416.929(c)(3)(iv) by
failing to evaluate her use of medicine, [Doc. 13-1, at 14-16]. As these are both alleged violations
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of law, the Court views it as appropriate to address them now, prior to the ALJ's reevaluation on
remand.
A.

Supplementation of Record – 20 C.F.R. § 416.912(d)

McKinney argues that the ALJ failed to follow the dictates of 20 C.F.R. § 416.912(d), which
states as follows:
(d) Our responsibility. Before we make a determination that you are
not disabled, we will develop your complete medical history for at
least the 12 months preceding the month in which you file your
application unless there is a reason to believe that development of an
earlier period is necessary or unless you say that your disability began
less than 12 months before you filed your application. We will make
every reasonable effort to help you get medical reports from your own
medical sources when you give us permission to request the reports.
The Second Circuit has held that this places on the ALJ "an affirmative duty to develop the record,"
and prohibits an ALJ from "reject[ing] a treating physician's diagnosis without first attempting to fill
any clear gaps in the administrative record." Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)
(internal quotation omitted).
McKinney argues that the ALJ failed to adhere to this regulatory requirement by failing to
affirmatively seek out a medical opinion from another one of McKinney's treating physicians, Dr.
Robert Sheiman. Doc. 13-1, at 12-14. McKinney argues that it was insufficient for the ALJ to
simply rely on Dr. Sheiman's treatment notes.
Defendant argues that an ALJ is under no obligation to seek additional medical information
"'[w]here there are no obvious gaps . . . and where the ALJ already possesses a complete medical
history,'" and that here, McKinney has identified no such "obvious gap" and the ALJ had a full
medical history. Doc. 17, at 6-7 (quoting Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999)).
The current dispute is in large part affected by, and related to, the ALJ's failure to follow
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properly the treating physician rule, as Judge Merriam correctly found. This is because if the ALJ
improperly excluded (or placed insignificant weight on) McKinney's other treating physicians, there
is presently an "obvious gap" in the record. Moreover, it is unclear from the record what weight the
ALJ placed on the opinion of Dr. Sheiman. Therefore, the Court makes no determination as to
whether the ALJ failed to comply with his obligation to affirmatively develop the record as to Dr.
Sheiman. It will be for the ALJ on remand to reevaluate the record in light of Judge Merriam's
ruling, as supplemented herein, and only then to decide if further record supplementation as to Dr.
Sheiman is at that point necessary.3 If the ALJ decides such supplementation to be unnecessary, it
should state the reasons for such in its ruling.
B.

Effects of Medicine Use – 20 C.F.R. § 416.929(c)(3)(iv)

McKinney also claims that the ALJ failed to follow the directive of 20 C.F.R. §
416.929(c)(3)(iv), which states in relevant part:
Because symptoms, such as pain, are subjective and difficult to
quantify, any symptom-related functional limitations and restrictions
which you, your treating or nontreating source, or other persons
report, which can reasonably be accepted as consistent with the
objective medical evidence and other evidence, will be taken into
account . . . in reaching a conclusion as to whether you are disabled.
. . . Factors relevant to your symptoms, such as pain, which we will
consider include . . . [t]he type, dosage, effectiveness, and side effects
of any medication you take or have taken to alleviate your pain or
other symptoms.
Social Security Ruling ("SSR") 96-7p, in effect currently and at the time of the ALJ's decision (and

3

In so doing, the ALJ should also affirmatively state the weight it places on the opinion
of Dr. Sheiman. See Burgess v. Astrue, 537 F.3d 117, 132 (2d Cir. 2008) ("If the ALJ declines to
give controlling weight to Dr. Smith's MRI-supported opinion as to the nature and severity of her
impairment, Burgess is entitled to a comprehensive statement as to what weight is given and of
good reasons for the ALJ's decision.").
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Judge Merriam's Recommended Ruling)4 makes clear that the ALJ's review of the factors identified
as relevant above is obligatory. Specifically, SSR 96-7p states in relevant part: "20 CFR 416.929(c)
describe the kinds of evidence . . . that the adjudicator must consider in addition to the objective
medical evidence when assessing the credibility of an individual's statements" (emphasis added).
McKinney claims that the ALJ violated Section 416.929(c)(3) by failing "to fully evaluate
the use of or side effects from [McKinney's] medications." Doc. 13-1, at 15. Specifically, she claims
that the "ALJ did not take Plaintiff's fatigue into consideration." Doc. 13-1, at 15.
McKinney is mistaken and this argument can be quickly dispatched. The ALJ expressly
noted McKinney's claim that she "gets tired from medications," but ultimately found McKinney's
statements as to the severity of this side effect not to be entirely credible. In fact, the ALJ
specifically noted that "the record supports that the claimant's symptoms improved with
medications." AR. 21. Therefore, the ALJ complied with the directive of 20 C.F.R. 416.929(c) by
accounting for the effect of McKinney's medications on McKinney's functionality.5

4

On March 28, 2016, SSR 96-7p will be superseded by SSR 16-3p, which does appear to
soften the obligatory nature of the SSA's review of the symptoms identified in Section
416.929(c). Specifically, SSR 16-3p states that the agency "will also use the factors set forth in
20 CFR . . . 416.929(c)(3)," rather than stating that the agency must consider those factors.
Further, the revised language states that "we will not discuss [a] specific factor[] in the
determination or decision," "[i]f there is no information in the evidence of record regarding [that]
factor." Regardless, given the analysis in text, the distinctions are irrelevant because they lead to
the same outcome.
5

Whether the ALJ did so properly is a question of whether the ALJ's decision as to this
point is supported by substantial evidence, a question not reached at this point in light of the
finding that the ALJ's decision is infected with legal error. At present, it is sufficient to say that
the ALJ complied with her legal obligation to account for the effects of McKinney's medications.
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III.

Conclusion
For the foregoing reasons, the Court ADOPTS AS SUPPLEMENTED HEREIN Judge

Merriam's [20] Recommended Ruling, and thereby GRANTS IN PART Plaintiff's [13] Motion for
Judgment on the Pleadings and DENIES Defendant's [16] Motion to Affirm the Decision of the
Commissioner. In light of the above, the Court directs that this case be remanded to the
Commissioner for further proceedings consistent with Judge Merriam's Recommended Ruling as
supplemented by the instant Ruling. The Clerk is directed to close the case.

It is SO ORDERED.
Dated: New Haven, Connecticut
March 25, 2016
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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