Patrick v. Colvin

Filing 19

ORDER: Plaintiff's Motion for Order Reversing the Decision of the Commissioner or In the Alternative Motion for Remand for a Hearing (Doc. No. 15 ) is hereby GRANTED, and Defendant's Motion for an Order Affirming the Decision of the Commi ssioner (Doc. No. 18 ) is hereby DENIED for the reasons set forth in the attached document. This case is hereby REMANDED to the Commissioner for rehearing and the Clerk shall close this case. Signed by Judge Alvin W. Thompson on 3/29/17. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MARLANA PATRICK,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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: Civil No. 3:15CV1445 (AWT)
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ORDER REMANDING CASE
For the reasons set forth below, the decision of the
Commissioner is reversed and this case is remanded for
additional proceedings consistent with this order.
The court’s function when reviewing a denial of disability
benefits is first to ascertain whether the Commissioner applied
the correct legal principles in reaching a conclusion, and then
whether the decision is supported by substantial evidence.
Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).

See

Absent

legal error, this court may not set aside the decision of the
Commissioner if it is supported by substantial evidence.

See

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
The defendant argues that the ALJ properly considered the
medical opinions of record.

The ALJ’s opinion contains a

detailed analysis of the medical record that is persuasive in
all but one important respect.

The opinion states that “[i]n

finding that the claimant has the residual functional capacity
found herein, the undersigned has taken into account treating
and examining sources Drs. Cheng, McGibbon and Vanbeek, as well
as, other treating and examining sources’ findings of the
claimant’s physical functioning and given it weight.”

(Tr. 26)

The opinion then goes on to state that the ALJ gives great
weight to the statements and opinions of “treating and examining
physicians Drs. McGibbon and Vanbeek” and gives “partial weight
to Dr. Cheng’s statements and opinions, to the extent that they
support that the claimant’s overall physical function[] does not
preclude her performing all activities of daily living.”
26).

(Tr.

The opinion then states that the ALJ “has given minimal

weight to Dr. Cheng’s November 2014 report.”

(Tr. 26).

Thus it is apparent that Dr. McGibbon’s statements and
opinions have been given material weight by the ALJ in reaching
her conclusions.

However, the court cannot locate in the record

the purported statements and opinions by Dr. McGibbon.

The

opinion states that
Treating physician, Bruce McGibbon, M.D. indicated that
although the claimant had only partially met her goals, she
was expected to have continued progress and improvement,
particularly after obtaining her prescribed compression
garment.
At the time of discharge, Dr. McGibbon reported
that the claimant had mildly decreased right shoulder range
of motion of 4-5. Dr. McGibbon diagnosed the claimant with
lymphedema and shoulder joint region pain, and recommended
she continue her therapeutic exercises at home (Exhibit
17F, pgs. 146-156).

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(Tr. 24).

However, Exhibit 17F is the notes from the physical

therapist to whom Dr. McGibbon referred the plaintiff.
832 (referring physician Bruce McGibbon).)

(See Tr.

Later in the

opinion, the ALJ states “Dr. McGibbon noted that the claimant
reported experiencing no pain or swelling (Exhibit 16F, pg. 116;
and 20F, pgs. 1 and 6).”

(Tr. 25).

Again this is a statement

by the physical therapist, not by Dr. McGibbon.
“[T]he opinion of a claimant’s treating physician as to the
nature and severity of the impairment is given ‘controlling
weight’ so long as it ‘is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case
record.’”

Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)

(quoting 20 C.F.R. § 404.1527(d)(2)); see also Mariani v.
Colvin, 567 F. App’x 8, 10 (2d Cir. 2014) (“A treating
physician’s opinion need not be given controlling weight where
it is not well-supported or is not consistent with the opinions
of other medical experts” where those other opinions amount to
“substantial evidence to undermine the opinion of the treating
physician”).

“The regulations further provide that even if

controlling weight is not given to the opinions of the treating
physician, the ALJ may still assign some weight to those views,
and must specifically explain the weight that is actually given
to the opinion.”

Schrack v. Astrue, 608 F. Supp. 2d 297, 301
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(D. Conn. 2009) (citing Schupp v. Barnhart, No. Civ. 3:02CV103
(WWE), 2004 WL 1660579, at *9 (D. Conn. Mar. 12, 2004)).

It is

“within the province of the ALJ to credit portions of a treating
physician’s report while declining to accept other portions of
the same report, where the record contained conflicting opinions
on the same medical condition.”

Pavia v. Colvin, No. 6:14-cv-

06379 (MAT), 2015 WL 4644537, at *4 (W.D.N.Y. Aug. 4, 2015)
(citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)).
In determining the amount of weight to give to a medical
opinion, the ALJ must consider several factors: the examining
relationship, the treatment relationship (the length, the
frequency of examination, the nature and extent), evidence in
support of the medical opinion, consistency with the record,
specialty in the medical field, and any other relevant factors.
20 C.F.R. § 404.1527.

In the Second Circuit, “all of the

factors cited in the regulations” must be considered to avoid
legal error.

See Schaal v. Apfel 134 F.3d 496, 504 (2d Cir.

1998).
Here, because the ALJ’s opinion does not actually cite to
statements and opinions of Dr. McGibbon, the court cannot
conclude that the decision to put the greater weight on, among
other things, the statements and opinions of Drs. McGibbon and
Vanbeek than on the statements and opinions of Dr. Cheng to

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which the ALJ gave minimal or partial weight was supported by
substantial evidence.
The court notes that the defendant accurately cites to
Section E of Listing 13.10 as providing: “With secondary
lymphedema that is caused by anticancer therapy and treated by
surgery to salvage or restore the functioning of an upper
extremity.”
added).

20 C.F.R. Part 404, Subpart P, Appendix 1 (emphasis

The defendant then argues that the plaintiff admits

that she did not undergo surgery to treat lymphedema.

However,

the applicable requirement is that the plaintiff’s condition
“meet or equals” a listed impairment (20 C.F.R. §
416.920(a)(4)(iii)), and the plaintiff argues that her condition
medically equalled a listed impairment.

This point should be

addressed on remand.
For the reasons set forth above, Plaintiff’s Motion for
Order Reversing the Decision of the Commissioner or In the
Alternative Motion for Remand for a Hearing (Doc. No. 15) is
hereby GRANTED, and Defendant’s Motion for an Order Affirming
the Decision of the Commissioner (Doc. No. 18) is hereby DENIED.
This case is hereby REMANDED to the Commissioner for rehearing
consistent with this ruling.
The Clerk shall close this case.
It is so ordered.

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Dated this 29th day of March 2017, at Hartford,
Connecticut.

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/s/AWT __
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Alvin W. Thompson
United States District Judge

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