Johnson v. Colvin

Filing 17

RULING granting in part and denying in part 13 Motion for Judgment on the Pleadings; denying 16 Motion for Judgment on the Pleadings. For the reasons set forth above, Johnston's Motion for Judgment on the Pleadings (Doc. No. 13 ) is GRANT ED IN PART AND DENIED IN PART. The Commissioner's Motion to Affirm (Doc. No. 16 ) is DENIED. Notwithstanding the fact that this is the courts second reversal of the Commissioner in this case, remand to the Social Security Administration for further proceedings regarding Johnston's claim that he was disabled before April 2014 and consistent with this Ruling is appropriate. Signed by Judge Janet C. Hall on 7/7/2017. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GEORGE E. JOHNSTON,1
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.2

:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.
3:16–cv–1466 (JCH)

JULY 7, 2017

RULING RE: MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. NO. 13) &
MOTION TO AFFIRM THE COMMISSIONER’S DECISION (DOC. NO. 16)
I.

INTRODUCTION
Plaintiff George E. Johnston (“Johnston”) instituted this action pursuant to

section 405(g) of title 42 of the United States Code to challenge various aspects of a
decision of the Commissioner of the Social Security Administration (“Commissioner”).
See Compl. (Doc. No. 1) ¶¶ 1, 16, 21–22. Johnston seeks reversal, in part, of a
Decision rendered by Administrative Law Judge (“ALJ”) Ryan A. Alger, see generally
Certified Tr. of Record (“Tr.”) (Doc. Nos. 11-1 – 11-26) at 883–909, and affirmed by the
Appeals Council, see generally Tr. at 875–82. The ALJ granted Johnston’s application

Plaintiff’s name appears as “George E. Johnson” on the docket for this case in the CM/ECF
filing system, likely because that is how plaintiff’s name appears in the caption of his Complaint. See
Compl. (Doc. No. 1) at 1. It is clear, however, that this is a typographical error, and plaintiff’s last name is
properly spelled “Johnston.” See, e.g., id. at 1 (referring to plaintiff in first line of Complaint as “GEORGE
E. JOHNSTON”); Mot. for J. on Pleadings (Doc. No. 13) at 1 (spelling plaintiff’s last name with a “t”);
Def.’s Mem. in Supp. of her Mot. for an Order Affirming the Commissioner’s Decision (Doc. No. 16) at 1
(same). The Clerk is therefore directed to amend the caption of this case to set forth the proper spelling
of plaintiff’s name: “George E. Johnston.”
1

2 Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is hereby substituted as
the defendant in this case, in place of the former Acting Commissioner of the Social Security
Administration, Carolyn W. Colvin. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public
officer who is a party in an official capacity . . . resigns[ ] or otherwise ceases to hold office while the
action is pending. The officer’s successor is automatically substituted as a party.”). The Clerk of Court is
directed to correct the docket to reflect this substituted party.

1

for Supplemental Security Income (“SSI”) from April 1, 2014 forward; however, he
denied Johnston’s application for SSI prior to April 1, 2014 and denied his application
for Social Security Disability benefits (“SSD”) in all respects. See id. at 903.
Johnston filed a Motion for Judgment on the Pleadings, seeking partial reversal
of the ALJ’s Decision. See generally Mot. for J. on Pleadings (Doc. No. 13); Mem. of
Law in Supp. of Pl.’s Mot. for J. on Pleadings (“Mot. to Rev.”) (Doc. No. 14). In
response, the Commissioner filed a Motion responding to Johnston’s arguments, and
seeking affirmance of the Commissioner’s Decision. See generally Def.’s Mem. in
Supp. of her Mot. for an Order Affirming the Commissioner’s Decision (“Mot. to Affirm”)
(Doc. No. 16). The parties have also jointly filed a stipulation of agreed-upon facts. See
generally Joint Stipulation of Facts (“Joint Stip.”) (Doc. No. 15).
For the reasons set forth below, the Motion for Judgment on the Pleadings (Doc.
No. 13) is GRANTED IN PART AND DENIED IN PART, and the Motion to Affirm (Doc.
No. 16) is DENIED. The case is remanded to the Commissioner.
II.

BACKGROUND
A.

Facts3

Johnston was born on April 1, 1959. See Joint Stip. at 2. A high school
graduate, he has worked as a glass installer, a welder, an auto body repairman, and an
auto mechanic. See id.

3 The facts set forth herein are derived from the parties’ Joint Stipulation of Facts (Doc. No. 15),
unless otherwise noted, and are limited to those necessary to rule on the pending Motions. To the extent
the court relies on other material in the Record, that information will be referenced in the portions of this
Ruling, see generally infra Part IV, to which it relates.

2

In late January 2007, Johnston underwent an MRI of his lumbar spine, which
revealed: a “small L2-L3 midline disc herniation; progression of an L3-L4 disc bulge
shown on an earlier imaging study; multilevel disc degeneration; and bilateral L4-L5 and
L5-S1 foraminal narrowing caused by degenerative end-plate spurring.” Id.
Almost two years later, on January 8, 2009, Dr. Alan L. Schwarz (“Dr.
Schwarz”)—a board-certified family practitioner—evaluated Johnston for acute and
chronic lower back pain and for hypertension. See id. Johnston also reported right foot
pain and stated that he had run out of his medication. See id. at 2–3. A physical
examination suggested mild pain upon palpation of the right foot and pain upon
palpation and movement of Johnston’s lower back. Id. at 3. Dr. Schwarz diagnosed
Johnston with right foot pain and acute and chronic lower back pain, and he prescribed
Oxycodone. Id.
Johnston saw Dr. Schwarz again on January 28, 2009, and on February 23,
2009. See id. On these occasions, he reported “a lot” of low back and leg pain, as well
as mobility issues. See id. His back and leg pains were “essentially unchanged” at
later visits with Dr. Schwarz, through the end of 2009. See id.
On May 31, 2009, July 4, 2009, November 29, 2009, and December 25, 2009,
Johnston presented at the Windham Hospital emergency room with back pain and leg
pain. See id. at 3–4. Physical examinations during these visits often revealed a limited
range of motion. See id. at 3–4. At each of these ER visits, Johnston was prescribed
Oxycodone or Percocet. See id. at 3–4.
In January 2010, Johnston saw Dr. Schwarz again, complaining of ongoing
chronic low back pain, hypertension, and knee pain. See id. at 4. At this appointment,

3

Johnston was diagnosed with vocal cord polyps, hoarseness, chronic obstructive
pulmonary disease (“COPD”), chronic low back pain, joint pain, fluid retention, and atrial
fibrillation with fast ventricular response; he was also identified as a cigarette smoker.
See id. Dr. Schwarz prescribed Cardizem and Oxycodone, and again prescribed
Oxycodone at Johnston’s next visit on March 29, 2010, which came on the heels of a
hospitalization arising out of a seizure Johnston suffered. See id.
Johnston returned to the emergency room on April 18, 2010 for “mild back pain,”
and at least once a month thereafter, through November 7, 2010, for chronic back pain
and leg pain. See id. at 5. He exhibited limited range of motion in his back and was
prescribed Oxycodone, Coumadin, Quinapril, Lasix, Metoprolol, and Keppra. Id.
Dr. Schwarz observed Johnston in moderate distress at a June 4, 2010
appointment, identifying an irregular heart rhythm, tenderness to palpation in the left
and right paraspinal area, bilateral muscle spasms, and restricted and painful flexion
and extension in the lumbar spine. Id. Once again, Dr. Schwarz prescribed
Oxycodone. Id.
A different physician, pain management specialist Dr. Craig E. Foster (“Dr.
Foster”), met with Johnston on July 20, 2010 to address Johnston’s back and leg pain.
See id. Dr. Foster diagnosed Johnston with chronic back pain and recommended that
Johnston begin taking a longer-acting medication, such as Oxycontin, in addition to
Lyrica. See id. at 5–6.
Johnston returned to Dr. Schwarz on July 29, 2010, as well as on August 4,
2010, August 9, 2010, August 16, 2010, August 23, 2010, and several more times
through the end of 2010. See id. at 6–7. For much of this period, Johnston’s back and

4

leg pain remained essentially unchanged, though he did report worsening lower back
pain and extremity pain at certain points. See id. at 6–7. Johnston was prescribed
Oxycodone and Morphine. See id. at 6–7.
On January 20, 2011, Johnston reported worsening pain in his back and legs. Id.
at 7. Dr. Schwarz examined Johnston, and again prescribed Oxycodone. Id. At a
February 4, 2011 visit to Dr. Schwarz, Johnston evinced virtually identical physical
limitations and was prescribed Oxycodone. Id.
Johnston briefly interrupted this pattern of visits to the ER and with Dr. Schwarz,
when he was evaluated at Connecticut Sport and Spine Physicians (“CSPS”) on
February 10, 2011, and during the two months that followed. See id. at 11–12. At
CSPS, Johnston was diagnosed with intervertebral disc displacement of the lumbar
spine with disc degeneration and facet hypertrophy, lumbago, and thoracic or
lumbosacral neuritis or radiculitis. Id. at 11–12. Johnston was prescribed Cymbalta and
OxyContin. See id. at 12. Johnston was administered bilateral L3-L4 transforaminal
epidural injections on March 10, 2011. See id.
On March 19, 2011, Johnston went to the emergency room, seeking relief for
severe, sharp, low back pain that radiated to his legs. Id. at 7. He was noted to have
tenderness in the lumbar paraspinal muscles and decreased range of motion. Id. at 7–
8. He was diagnosed with back pain and a back spasm, and this time prescribed
Valium. See id. at 8. When Johnston was seen two days later at CSPS, he reported
that he had experienced spasms, lasting fifteen minutes, down both of his legs over the
previous several days. See id. at 12.

5

Dr. Schwarz completed a Multiple Impairment Questionnaire on March 22, 2011.
Id. at 8. He diagnosed Johnston with: “chronic low back pain, COPD, hypertension,
obesity[,] and a seizure disorder.” Id. His chronic low back and leg pains, according to
Dr. Schwarz, prevented him from sitting and from standing/walking more than one hour
per eight-hour workday. Id. Dr. Schwarz further expressed the belief that Johnston
would need breaks to rest every thirty minutes during the workday, each at least ten
minutes long, and would likely miss work more than three times per month. Id. Dr.
Schwarz opined that Johnston could “occasionally” lift or carry objects that weighed five
pounds, but that Johnston’s chronic pain resulted in significant limitations in repeatedly
reaching, handling, or lifting objects. Id. He had further moderate limitations in his
ability to use his upper extremities to grasp, twist, or turn objects and to use his arms for
reaching, including overhead. Id. Dr. Schwarz suggested that Johnston’s symptoms
were constantly so severe as to interfere with his ability to concentrate. Id. Dr. Schwarz
did not believe that Johnston was a malingerer. Id.
Johnston returned to CSPS on April 7, 2011, and stated that his back pain had
worsened after the epidural injections he had received in March; he was prescribed
Oxycodone. Id. at 12.
From late April 2011 through August 2011, Johnston went to the Windham
Hospital emergency room many times. See generally id. at 9–10. He most often
complained of lower back and leg pain at these visits, and he showed a limited range of
motion. See, e.g., id. at 9. Notably, however, Johnston’s visits to the ER in July 2011
were driven by his effort to seek treatment for right arm pain. See id. at 9–10. In fact,
an MRI on July 29, 2011 showed a partial tear in his biceps, a complete tear of the

6

lateral collateral ligament, and several other partial tears. See id. at 10. Virtually
every—if not every—time he visited the Windham Hospital emergency room, Johnston
was prescribed painkillers and/or other prescription medications. See id. at 9–10.
Johnston’s visits to the Windham Hospital emergency room overlapped with the
start of his trips to the Rockville General Hospital (“Rockville”) emergency room. See id.
at 12. Johnston frequently sought evaluation and treatment at the Rockville ER from
May 18, 2011 through February 13, 2012. See id. These visits revealed similar lower
back pain and limitations on his range of motion, among other, related abnormalities.
See id. Over the course of these visits, doctors at Rockville prescribed Oxycodone,
OxyContin, Ultracet, Clonidine, Percocet, Robaxin, Norflex, and Prednisone. See id.
at 12–13.
On October 10, 2011, Johnston underwent an MRI of his lumbar spine. Id. at 10.
The MRI revealed various disc bulges, thecal sac narrowings, and other irregularities.
See id. at 10–11. More than two months passed before, on December 23, 2011,
Johnston visited the ER once again for severe, constant back pain. Id. at 11.
Johnston began treating with Dr. Loretta Pilagin (“Dr. Pilagin”) on January 24,
2012. See id. at 13. At an appointment with Dr. Pilagin a month later, Johnston
reported that he was having a hard time finding long-term care. See id. When she
examined Johnston on March 9, 2012, Dr. Pilagin noted decreased breathing sounds,
peripheral edema, abdominal tenderness, and decreased sensation in the right lower
extremity. See id. Johnston received another prescription for Oxycodone. Id.

7

On April 13, 2012 and June 8, 2012, Johnston reported that he had increased
lower back pain which led Dr. Pilagin to prescribe Oxycodone after the first of these
visits and Oxycodone and Losartan after the second. See id.
As Dr. Schwarz had previously, Dr. Pilagin completed a Multiple Impairment
Questionnaire on August 27, 2012. Id. She diagnosed Johnston with: lumbar
degenerative disc disease status post fusion with right radicular pain, atrial fibrillation,
seizure disorder, and COPD. Id. Johnston’s primary symptoms were pain in his lower
back and right lower extremity, difficulty breathing, shortness of breath, palpitations, and
difficulty climbing stairs. See id. at 14. Dr. Pilagin expressed her belief that, in an eighthour workday, Johnston could sit for three hours total with breaks, stand/walk for three
hours total with breaks, and needed to stand and move around every thirty minutes for
five to ten minutes at a time when he was sitting. See id. Further, Dr. Pilagin stated
that Johnston could lift or carry objects that weighed ten pounds only occasionally. Id.
She did not believe that Johnston was a malingerer, noting further that Johnston would
need unscheduled fifteen-minute breaks each hour during an eight-hour workday. Id.
In a narrative she completed on August 31, 2012, Dr. Pilagin repeated
Johnston’s diagnoses, while opining that he had significant limitations and conditions
that she expected to gradually worsen over time and to prevent him from working fulltime. See id.
Johnston’s reports of back pain—on October 2, 2012—and leg pain—on March
11, 2013—continued, as did his prescriptions for Oxycodone. See id.
Dr. Pilagin prepared a report, dated March 25, 2013, in which she diagnosed
Johnston with degenerative lumbar spine disease, COPD, atrial fibrillation, and

8

seizures. See id. She opined that his symptoms were progressive and a result of a
lumbar fusion performed in 1999. See id. at 15. According to Dr. Pilagin, Johnston
remained unable to work, as he could not perform the job for which he was trained or
learn to do a different job because of his medications and chronic illnesses. See id.
This time, Dr. Pilagin suggested that Johnston could only sit for one hour or less and
stand/walk for one hour or less in an eight-hour workday. See id. He could
occasionally lift or carry ten-pound objects, could not use either foot to repeatedly push
or pull leg controls, could not bend, squat, crawl, or climb, could not drive automotive
equipment, and could never be exposed to unprotected heights, moving machinery,
significant temperature and humidity fluctuations, or dust and fumes. See id.
In follow-up doctor appointments in early May, June, July, and August 2013,
Johnston reiterated reports of pain in his back—which he said “always hurt[ ]”—and in
his legs. See id. At an October 28, 2013 appointment, Johnston indicated that he had
recently visited the emergency room for joint swelling, and was suffering from increased
chronic back pain and depression. See id. Similarly, on December 26, 2013, Johnston
said his pain was not adequately under control. Id.
B.

Procedural History and Relevant Testimony

On November 4, 2010, Johnston filed applications for SSD and SSI, claiming
disability onset as of October 31, 2008. See id. at 1. Dr. Khurshid Khan (“Dr. Khan”)—
a state agency physician—reviewed the medical evidence in this case and concluded
that Johnston could perform a range of light work. Id. at 15; see generally Tr. at 81–89.
A second state agency physician, Dr. Firooz Golkar (“Dr. Golkar”) also articulated a
view that Johnston could perform light work. See generally Joint Stip. at 16; Tr. at 102–

9

11. Johnston’s claims were initially denied, and Johnston requested a hearing before
an ALJ which was held on November 10, 2011. Joint Stip. at 1. However, by Decision
dated November 22, 2011, the ALJ denied Johnston’s claims, finding that he was not
disabled. See Joint Stip. at 1; see generally Tr. at 22–39. Though Johnston requested
review from the Appeals Council, it denied review on November 20, 2012. See Joint
Stip. at 1; see generally Tr. at 1–7.
Johnston then filed suit in this court, seeking reversal of the Commissioner’s
decision.4 See Joint Stip. at 1. The court issued a Ruling, see generally Tr. at 939–48,5
affirming and adopting a Recommended Ruling prepared by Judge Fitzsimmons, see
generally Tr. at 949–1017. Johnston’s claims were remanded to the Commissioner for
further proceedings. See Joint Stip. at 1. Shortly thereafter, on June 16, 2014, the
Appeals Council remanded the claim for a new hearing and decision consistent with this
court’s Ruling. See id.; see generally Tr. at 935–38.
ALJ Ryan A. Alger held another hearing in this case on December 4, 2014, see
Joint Stip. at 2; see generally Tr. at 910–34, at which Johnston testified. Johnston’s
testimony at this Hearing overlapped, to some extent, with his testimony before the first
ALJ in November 2011. Johnston testified that, in October 2008, he stopped working
because certain items he needed to lift or carry in the course of his work had become
too heavy. See Joint Stip. at 16. Thigh pain radiating down to his ankle, lower back
pain, and burning pain and spasms in both shoulders also caused Johnston difficulty in

4

The docket number for that case was 3:13–cv–73 (JCH).

This court’s Ruling is also available at the following citation: Johnston v. Colvin, No. 3:13–cv–
73 (JCH), 2014 WL 1304715 (D. Conn. Mar. 31, 2014). However, the court will cite to the pagination of
the Ruling reflected in this case’s administrative record, for ease of reference.
5

10

working. Id. Twisting, bending, and certain other movements exacerbate his shoulder
pain. Id. The consistent pain in his lower back is made worse by lifting, twisting, and
bending, and his leg pain is made worse by lifting certain objects. Id.
Johnston guessed that he can hold two gallons of milk for approximately fifteen
to twenty minutes before the pain in his shoulders and back prevents him from doing so.
Johnston said he is able to walk approximately three blocks and to stand for twenty to
thirty minutes at a time. Id. Climbing stairs in the house—which he shares with his
girlfriend and her son—presents a challenge three days a week, at which times
Johnston’s COPD manifests itself. See id. Johnston frequently goes for a walk outside,
either to walk the dog or just to get some fresh air. See id. Johnston testified that he
lies flat for a “couple of hours a day” to minimize his pain. See id. He spoke about his
efforts to restore an old truck, a project that took him three years instead of the three to
six months he says it should have taken. See id. This delay was attributed to his
inability to work for more than thirty minutes at a time, every two days. See id.
Johnston’s medicines induce drowsiness, and though he has difficulty sleeping at night
due to the pain, he naps for one to two hours nearly every day. See id. at 16–17.
Notwithstanding his years of treatment—including surgery, injections, and physical
therapy—Johnston reported that his back pain has not improved. Id.
The ALJ issued his Decision on January 26, 2015, see generally Tr. at 883–909,
concluding that Johnston was disabled beginning on April 1, 2014, but at no time before
that date, see id. at 902. Specifically, he found that despite the severe impairments of
degenerative disc disease, obesity, COPD, and epilepsy, Johnston maintained sufficient
residual functional capacity (“RFC”) to perform “light work.” See id. at 893–900. The

11

ALJ modified this general RFC to acknowledge that Johnston: should avoid exposure to
hazardous machinery and unprotected heights; could occasionally climb ramps and
stairs, but never ladders, ropes, or scaffolds; should be permitted to switch between
sitting and standing throughout the workday; could stand and walk a total of four hours
in an eight-hour workday; and could tolerate only occasional exposure to high
concentrations of airway irritants. See id. at 893. Though Johnston could not perform
any of his past work, the ALJ found that he could perform other work, as a receptionist,
general officer clerk, or production inspector, prior to April 1, 2014. See id. at 901–02.
On April 1, 2014, Johnston turned 55 and his age category changed. Id. at 902. The
ALJ found that, beginning on April 1, 2014, there were no jobs in sufficient numbers in
the national economy that Johnston was capable of performing. See id.
Johnston asked the Appeals Council to review the portion of the ALJ’s Decision
that determined he was not disabled from October 31, 2008 through March 31, 2014.
See id. at 2. The Appeals Council denied Johnston’s request on May 2, 2016. See id.;
see generally Tr. at 875–82. Following this final act of the Commissioner, see Joint
Stip. at 2, Johnston filed this case.
III.

LEGAL STANDARDS
The court will only set aside an ALJ’s Social Security disability determination if “it

is based upon legal error or is not supported by substantial evidence.” Balsamo v.
Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d
Cir. 1982) (per curiam)). “Substantial evidence is ‘more than a mere scintilla.’” Brault v.
Soc. Sec. Admin., Comm’r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). This “very deferential standard of

12

review” requires only “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” See id. at 447–48 (quotation marks, citations, and
emphases omitted).
The court may reject an ALJ’s factual findings “only if a reasonable factfinder
would have to conclude otherwise.” Id. at 448 (quoting Warren v. Shalala, 29 F.3d
1287, 1290 (8th Cir. 1994)). Moreover, “[t]he substantial evidence rule also applies to
inferences and conclusions that are drawn from findings of fact.” Gonzalez v. Apfel, 23
F. Supp. 2d 179, 189 (D. Conn. 1998) (citing Rodriguez v. Califano, 431 F. Supp. 421,
423 (S.D.N.Y. 1977)). At base, when “an administrative decision rests on adequate
findings sustained by evidence having rational probative force, the court should not
substitute its judgment for that of the Commissioner.” Yancey v. Apfel, 145 F.3d 106,
111 (2d Cir. 1998) (citing Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)); see
also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982) (“We would be derelict in
our duties if we simply paid lip service to this rule [that Commissioner’s factual findings
shall be conclusive if supported by substantial evidence], while shaping our holding to
conform to our own interpretation of the evidence.” (citation omitted)).
IV.

DISCUSSION
In evaluating an individual’s claim for either SSI or DIB, he:
shall be considered to be disabled . . . if he is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve months.

42 U.S.C. § 1382c(a)(3)(a); see also 42 U.S.C. § 423(d)(1)(A). Claims for Social
Security benefits are evaluated by reference to a familiar, five-step analysis:

13

First, the Commissioner of Social Security considers whether the claimant is
currently engaged in “substantial gainful activity.” If he is not, the Commissioner
proceeds to the second step and determines whether the claimant has a “severe
medically determinable physical or mental impairment,” that “significantly limits
his physical or mental ability to do work activities.” If the claimant does suffer
such an impairment, the third step is “whether, based solely on medical
evidence, the claimant has an impairment which is listed in Appendix 1 of the
regulations.” If so, the claimant is per se “disabled” and thus presumptively
qualified for benefits. If not, the Commissioner proceeds to the fourth step and
examines whether, “despite the claimant's severe impairment, he has the
residual functional capacity to perform his past work.” If the claimant is unable to
perform his past work, the Commissioner finally determines whether there is
other work the claimant can perform, taking into consideration the claimant's
RFC, age, education, and work experience.
Petrie v. Astrue, 412 F. App’x 401, 404 (2d Cir. 2011) (summary order) (citations
omitted); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)).
In this case, Johnston offers two arguments as to why the Commissioner’s
decision should be reversed or remanded. First, he argues that the ALJ did not properly
weigh the medical opinion evidence in determining Johnston’s RFC. See Mot. to Rev.
at 1. Johnston takes issue with the ALJ’s consideration (or lack thereof) of opinions
rendered by his treating physicians, see generally id. at 1–6, and with the ALJ’s decision
to afford great weight to opinions rendered by non-treating state agency medical
consultants, see generally id. at 6–8. Second, Johnston contends that the ALJ did not
properly evaluate his credibility in determining his RFC. See generally id. at 8–11.
A.

Medical Opinion Evidence
1.

Treating Physician Rule

“The [Social Security Administration] recognizes a rule of deference to the
medical views of a physician who is engaged in the primary treatment of a claimant.”
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (per curiam). “According to this rule,

14

the 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)). Even where the treating
physicians’ opinions do not have such support in the record—and so are not given
controlling weight—the ALJ must consider “several factors in determining how much
weight the opinion should receive.” See Greek, 802 F.3d at 375 (citing 20 C.F.R.
§ 404.1527(c)(2)(i), (2)(ii), (3)–(6)). “In order to override the opinion of the treating
physician, . . . the ALJ must explicitly consider, inter alia: (1) the frequen[c]y, length,
nature, and extent of treatment; (2) the amount of medical evidence supporting the
opinion; (3) the consistency of the opinion with the remaining medical evidence; and
(4) whether the physician is a specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir.
2013) (per curiam) (citing Burgess, 537 F.3d at 129).
The ALJ gave the opinions of Dr. Schwarz and Dr. Pilagin some weight in
determining Johnston’s RFC. See Tr. at 898, 900. The ALJ found certain portions of
these opinions consistent with other evidence, but others inconsistent with, inter alia,
medical reports, Johnston’s own testimony, and treatment notes in the record. See id.
at 898–900.
Notably, in her Recommended Ruling that was affirmed and adopted by this
court in Johnston’s first appeal from the Commissioner’s initial determination, Judge
Fitzsimmons explicitly rejected Johnston’s arguments that Dr. Schwarz’s opinion was
entitled to controlling weight. See Tr. at 1006–08. Here, the court again concludes that

15

the ALJ did not err in declining to give Dr. Schwarz’s and Dr. Pilagin’s opinions
controlling weight. There was substantial, inconsistent evidence in the record.
During the time period at issue, Johnston regularly described his pain as
moderate, in the course of his visits to Windham Hospital. See, e.g., Tr. at 337, 342,
400, 439, 453. On at least one hospital trip, he reported only mild pain, a “0” on a scale
from zero to ten. See id. at 376, 381. Johnston was often able to maintain a normal
gait or showed back flexion to ninety degrees, or both. See, e.g., id. at 299, 311, 325,
329. Even when he reported moderate to severe back pain, Johnston was sometimes
able to walk around the examination room without appearing to be in significant
distress. See, e.g., id. at 442–43, 484. Moreover, the October 10, 2011 MRI—
performed in the middle of the time period for which Johnston seeks benefits—revealed
only “[m]ild to moderate disc degenerative changes,” mild to moderate thecal sac
narrowing, and “[o]nly mild neural foraminal narrowing . . . at multiple levels.” See id. at
871–72. This evidence is inconsistent with the opinions offered by Drs. Schwarz and
Pilagin and is substantial, thus obviating the otherwise applicable mandate that the
opinion of Johnston’s treating physicians be given controlling weight. In declining to
give the treating physicians’ opinions controlling weight, the ALJ did “not substitute his
own layperson judgment of the medical findings . . . .” See Mot. to Rev. at 3. Rather,
he properly accounted for the substantial evidence inconsistent with the treating
physicians’ opinions.
However, this determination does not necessarily dictate a conclusion that the
ALJ properly weighed the treating physicians’ opinions. The court must also inquire as
to whether the ALJ “explicit[ly] consider[ed], inter alia: (1) the frequen[c]y, length, nature,

16

and extent of treatment; (2) the amount of medical evidence supporting the opinion;
(3) the consistency of the opinion with the remaining medical evidence; and (4) whether
the physician is a specialist.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per
curiam) (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)). If the ALJ
discounts the opinion of the claimant’s treating physician, he must give “good reasons”
for doing so. See Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008). Nevertheless,
the court does not “require [ ] slavish recitation of each and every factor where the ALJ’s
reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 F. App’x
67, 70 (2d Cir. 2013) (summary order) (citing Halloran v. Barnhart, 362 F.3d 28, 31–32
(2d Cir. 2004) (per curiam)). At the outset of this inquiry, it is important to note that the
court remains bound to uphold the ALJ’s determination so long as it is supported by
substantial evidence and reached after a consideration of the factors set forth
immediately above.
The ALJ clearly addressed “the frequen[c]y, length, nature, and extent of
treatment” in determining that each treating physician’s opinion was entitled to “some
weight.” See Tr. at 898–900. He noted that “Dr. Schwarz is a treating physician who
has treated the claimant since at least 2007 . . . and is in a position to be familiar with
the claimant’s symptoms and limitations.” See id. at 898. Similarly, the ALJ
acknowledged Dr. Pilagin’s status as “a treating source, who has treated the claimant
since January 2012, as his primary care physician.” See id. at 899–900.
Nevertheless, the ALJ appears once again, see id. at 1010 (noting first ALJ’s
failure to consider information supporting treating physician’s opinion), not to have
meaningfully considered the medical evidence supporting the treating physicians’

17

opinion. In her Recommended Ruling in Johnston’s first appeal, Judge Fitzsimmons
admonished the ALJ for failing to acknowledge “medical records from Connecticut
Spine and Sports that note, for example, that plaintiff ‘may have a significant degree of
facet joint mediated pain contributing to his discomfort in his low back’; ‘has cervical
spondylosis with stenosis’; has decreased cervical and lumbar lordosis; has
intervertebral disc displacement lumbar without myelopathy; and whose ‘body habitus
and description suggest compressed lateral femoral cutaneous nerves.’” Id. (citations
omitted). Instead of expressing recognition of this evidence, however, the ALJ focused
his analysis, of the opinions offered by Drs. Schwarz and Pilagin, on discrediting them.
See generally id. at 898–900. Nor can the court conclude with any confidence that the
ALJ elsewhere considered the evidence that would support the treating physicians’
conclusion: there is virtually no discussion of such evidence in the portions of the ALJ’s
Decision that precede his specific discussion of the treating physicians’ opinions. See
generally id. at 893–98. While the ALJ’s analysis might satisfy the requirement that he
address the “consistency of the opinion with the remaining medical evidence,” see
Selian, 708 F.3d at 418, it neither cites nor addresses information supporting the
treating physicians’ opinions.6
It is also troubling that the ALJ appears to have repeated an error that was
pointed out in Johnston’s earlier appeal. In the Recommended Ruling that was affirmed
and adopted by this court, Judge Fitzsimmons reminded the Commissioner that “the

6 The Commissioner appears to defend the ALJ’s decision by noting the points on which the ALJ
did credit the opinions of the treating physicians as consistent with the medical evidence. See, e.g., Mot.
to Affirm at 2. These acknowledgments of the accuracy of certain aspects of the treating physicians’
opinions do not, however, evince any recognition of the objective evidence in the record supporting those
portions of the treating physicians’ opinions to which the ALJ did not give credence or explain why he did
not find such corroborative evidence sufficient to give the treating physicians’ opinions greater weight.

18

opinion of the treating physician [is not] to be discounted merely because he has
recommended a conservative treatment.” See Tr. at 1010 (quoting Burgess, 537 F.3d
at 129). Yet the ALJ apparently relied, in part, on a conservative treatment regimen as
justification for rejecting Dr. Pilagin’s opinion. See id. at 900 (noting that Dr. Pilagin’s
treatment notes “routinely did not note any limitations and simply continued [Johnston]
on his medication regimen”).
An ALJ’s failure to provide “good reasons” for giving only “some weight” to the
opinion of a treating physician constitutes an independent reason to remand the case to
the Commissioner. See Burgess, 537 F.3d at 129–30 (citing Snell v. Apfel, 177 F.3d
128, 133 (2d Cir. 1999)). The failure of the ALJ to provide those “good reasons” in this
case warrants remand.
2.

Non-Examining Physicians

Johnston also contends that the ALJ improperly weighed the medical opinion
evidence by giving “great weight” to the opinions of two non-examining physicians,
Drs. Khurshid Khan and Firooz Golkar. See Mot. to Rev. at 6–8. A non-examining
physician’s opinion is “opinion evidence which can be given weight if supported by
medical evidence in the record.” Frye ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d
Cir. 2012) (summary order) (citing 20 C.F.R. § 416.927(e)(2)). “The ALJ is permitted to
conclude that the opinion of a treating source should be given less weight than that of a
non-examining source, if the opinion of the non-examining source is more consistent
with the records as a whole.” Wright v. Colvin, No. 3:16–cv–463 (JCH), 2017 WL
202171, at *6 (D. Conn. Jan. 18, 2017) (citing Camille v. Colvin, 104 F. Supp. 3d 328,
343 (W.D.N.Y. 2015), aff’d 652 F. App’x 25 (2d Cir. 2016) (summary order)).

19

Nevertheless, “[t]he general rule is that the written reports of medical advisors who have
not personally examined the claimant deserve little weight in the overall evaluation of
disability.” Vargas v. Sullivan, 898 F.2d 293, 295 (2d Cir. 1990) (quoting Allison v.
Heckler, 711 F.2d 145, 147–48 (10th Cir. 1983)).
Notably, the ALJ responded to the previously-identified defects in the prior ALJ’s
Decision, see Tr. at 945–48, 1011–14, by giving only “little weight . . . to [the nonexamining physicians’] findings regarding the claimant’s ability to stand and walk
throughout the workday, the claimant’s ability to ‘frequently’ climb stairs, as well as [his]
postural limitations,” Tr. at 898. The court did not suggest in its earlier Ruling (including
the adopted Recommended Ruling) that no aspects of the non-examining physicians’
opinions were supported by substantial evidence. Rather, the court identified several,
specific issues on which their reports appeared deficient. See Tr. at 1012–13.
In his Motion to Reverse, Johnston does not object to any specific aspects of the
non-treating physicians’ reports. And, indeed, many of the conclusions of the nonexamining physicians might find adequate support in the record. See, e.g., Joint Stip.
at 16 (“Mr. Johnston estimated that he can hold about 2 gallons of milk for
approximately 15–20 minutes before his pain increases in his lower back and
shoulders.”); Tr. at 76 (Report of Dr. Khan) (suggesting Johnston can “[o]cccasionally”
lift “20 pounds”). Nevertheless, because the ALJ improperly weighed the treating
physicians’ opinions and the case will be remanded, the court observes that it cannot
conclude that the ALJ properly determined that the opinion of the “non-examining
source is more consistent with the records as a whole” and so entitled to greater weight.
See Wright, 2017 WL 202171, at *6. Moreover, the ALJ should have acknowledged the

20

effect of the treating physicians’ longitudinal relationships with Johnston in determining
how much weight to afford their opinions relative to those of the non-examining
physicians.
In sum, the ALJ erred in weighing the medical opinion evidence. Specifically, he
did not sufficiently manifest awareness of the information in the record that supports the
treating physicians’ opinions. This error infects his decision to give only “some weight”
to the treating physicians’ opinions, which in turn prevents the court from concluding
that his assignment of “great weight” to the non-examining physicians was not error.
B.

Credibility of Johnston’s Testimony

When the ALJ determines a claimant’s RFC, he must “take the claimant’s reports
of pain and other limitations into account . . . .” See Genier v. Astrue, 606 F.3d 46, 49
(2d Cir. 2010) (per curiam) (citing, inter alia, 20 C.F.R. § 416.929). Social Security
Administration regulations “provide a two-step process for evaluating a claimant’s
assertions of pain and other limitations.” Id. More specifically:
At the first step, the ALJ must decide whether the claimant suffers from a
medically determinable impairment that could reasonably be expected to produce
the symptoms alleged. 20 C.F.R. § 404.1529(b). That requirement stems from
the fact that subjective assertions of pain alone cannot ground a finding of
disability. 20 C.F.R. § 404.1529(a). If the claimant does suffer from such an
impairment, at the second step, the ALJ must consider “the extent to which [the
claimant's] symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence” of record. Id. The ALJ must
consider “[s]tatements [the claimant] or others make about [his] impairment(s),
[his] restrictions, [his] daily activities, [his] efforts to work, or any other relevant
statements [he] make[s] to medical sources during the course of examination or
treatment, or to [the agency] during interviews, on applications, in letters, and in
testimony in [its] administrative proceedings.” 20 C.F.R. § 404.1512(b)(3); see
also 20 C.F.R. § 404.1529(a); S.S.R. 96–7p.
Genier, 606 F.3d at 49. Crucially, the ALJ need not accept “claimant’s subjective
complaints without question,” but instead “may exercise discretion in weighing the

21

credibility of the claimant’s testimony in light of the other evidence in the record.”
Campbell v. Astrue, 465 F. App’x 4, 7 (2d Cir. 2012) (summary order) (quoting Genier,
606 F.3d at 49); see also Bain v. Colvin, No. 3:13–cv–1473 (AVC), 2015 WL 12681369,
at *5 (D. Conn. Oct. 1, 2015) (citing Genier, 606 F.3d at 49). The court should be
careful not to disturb the ALJ’s evaluation of the claimant’s claims of subjective pain:
“[a]fter all, the ALJ is in a better position to decide issues of credibility.” See Snell v.
Apfel, 177 F.3d 128, 135 (2d Cir. 1999) (citing Kirkland v. R.R. Ret. Bd., 706 F.2d 99,
103–04 (2d Cir. 1983)).
Here, the ALJ determined at the first step of the requisite analysis that “the
claimant’s medically determinable impairments could reasonably be expected to cause
the alleged symptoms . . . .” See Tr. at 894. However, at the second step, the ALJ
concluded that “the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible . . . .” See id. Johnston
articulates three primary objections to the ALJ’s credibility determination: (1) that
Johnston’s “sporadic activities of daily living” are not inconsistent with disability; (2) that
the ALJ should not have found that Johnston abused narcotic medications; and (3) that
the ALJ’s reference to Johnston’s continued cigarette smoking does not support a
finding that he was not credible. See Mot. to Rev. at 10–11. The Commissioner
defends the ALJ on each ground. See Mot. to Affirm at 7–10.
First, the ALJ’s reliance on Johnston’s reported daily activities in evaluating his
credibility was proper. The ALJ carefully noted several daily activities Johnston
undertakes that appear inconsistent with the extreme pain he reported. See Tr. at 894–
95 (discussing, inter alia, claimant’s admission that he “takes his dog for a walk,

22

sometimes performs welding which entails carrying small pieces of sheet metal, and [ ]
works on restoring an old truck”). As Johnston points out, see Mot. to Rev. at 10, these
inconsistencies may not by themselves constitute substantial evidence on which the
ALJ could base his disability determination. However, the ALJ was entitled to conclude
that these inconsistencies indicate that other portions of Johnston’s testimony—namely,
his allegations of extreme pain and physical limitations—are “not entirely credible.” See
Tr. at 894; see also Calabrese v. Astrue, 358 F. App’x 274, 277–78 (2d Cir. 2009)
(summary order).
Second, the ALJ’s references to Johnston’s drug seeking behavior was not
inappropriate. To the extent Johnston claims that he was not, in fact, engaged in such
behavior, Judge Fitzsimmons previously rejected that contention—in her
Recommended Ruling that was adopted by this court—noting that “the record is rife with
statements of concern about plaintiff’s narcotic use.” See Tr. at 1016 n.52 (citing Tr. at
346, 827). That same evidence is before the court in this appeal, and the court concurs
with Judge Fitzsimmons’s evaluation. Whether “Mr. Johnston’s need for chronic
narcotic pain medication is [ ] unique,” see Mot. to Rev. at 11, there was substantial
evidence to support the ALJ’s conclusion that he exhibited drug seeking behavior. 7

The court’s discussion above addresses Johnston’s claim that the ALJ erred in finding that he
exhibited drug seeking behavior. However, the ALJ may also have referenced Johnston’s narcotic
medication dependence in order to call attention to evidence in the record suggesting that Johnston was
dishonest in the course of his efforts to obtain more prescription medication. See, e.g., Tr. at 578 (“Last
week called in for oxycodone for back pain and script wasn’t filled. (Records show that it was)”). See
generally Mot. to Affirm at 8–9. To the extent the ALJ’s reasoning rested on such duplicitousness—rather
than on the fact of Johnston’s drug dependence—the court suggests that the ALJ clarify that on remand,
if appropriate.
7

23

Finally, Johnston takes issue with a sentence in the ALJ’s discussion of his
credibility that references his continued smoking. See Tr. at 895.8 Despite Johnston’s
suggestion that “[t]he record is clear that Mr. Johnston’s disability is primarily due to his
musculoskeletal impairments rather than his COPD,” Mot. to Rev. at 11, the ALJ
certainly relied, at least in part, on the COPD in determining Johnston’s RFC, see, e.g.,
Tr. at 893 (noting Johnston is only “able to tolerate occasional exposure to concentrated
levels of airway irritants such as fumes, gases, and excessive temperatures”), 898–99
(“Dr. Schwarz’s finding that the claimant should avoid exposure to pulmonary irritants is
also consistent with a diagnosis and treatment of COPD.”). Nevertheless, the court
agrees with Johnston that his continued smoking carries almost no probative value in
assessing whether his reports of respiratory difficulties are credible. See, e.g., Hilsdorf
v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 352 n.12 (E.D.N.Y. 2010) (noting that
people often continue to smoke, “not because they do not suffer gravely from the
disease, but because other factors such as the addictive nature of the products impacts
their ability to stop” (citation and quotation marks omitted)). To the extent the ALJ
erroneously discredited Johnston’s testimony on this ground, such error is harmless. In
a similar case, the Second Circuit concluded that, because “substantial evidence
supported the ALJ’s overall credibility determination,” the ALJ’s improper evaluation of
the claimant’s failure to quit smoking was harmless. See Suttles v. Colvin, 654 F. App’x
44, 46–47 (2d Cir. 2016) (summary order). Because the ALJ’s reference to Johnston’s
smoking was so brief—just one sentence—and because his overall credibility

The relevant portion of the ALJ’s Decision reads, in its entirety, as follows: “Furthermore,
despite the alleged limitations caused by his chronic obstructive pulmonary disorder, the claimant testified
that he continues to smoke every day.” Tr. 895.
8

24

determination was supported by other substantial evidence, the court concurs with the
Commissioner that any error on this point was harmless.
Though the court rejects Johnston’s specific claims of error, it cannot conclude
that the ALJ properly evaluated his credibility. As Judge Fitzsimmons noted in the first
appeal, see Tr. at 1015–16, the ALJ’s reliance on evidence on which he placed
improper weight—here, the opinions of treating and non-examining physicians, see
supra Part IV.A—calls into question his evaluation of Johnston’s credibility. As such, “to
the extent that the ALJ’s credibility determination relied on the non-treating, nonexamining sources,” and did not rely on the treating physicians, “the ALJ should
reconsider the weight placed on such evidence on remand.” See Tr. at 1016.
V.

CONCLUSION
For the reasons set forth above, Johnston’s Motion for Judgment on the

Pleadings (Doc. No. 13) is GRANTED IN PART AND DENIED IN PART. The
Commissioner’s Motion to Affirm (Doc. No. 16) is DENIED. Notwithstanding the fact
that this is the court’s second reversal of the Commissioner in this case, remand to the
Social Security Administration for further proceedings regarding Johnston’s claim that
he was disabled before April 2014 and consistent with this Ruling is appropriate.
SO ORDERED.
Dated at New Haven, Connecticut this 7th day of July, 2017.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge

25