Milliman v. Colvin

Filing 20

MEMORANDUM ORDER re 17 REPORT AND RECOMMENDATION is ADOPTED. 10 MOTION for Summary Judgment is DENIED. 14 MOTION for Summary Judgment is GRANTED, ***Civil Case Terminated. Signed by Judge Leonard P. Stark on 1/2/18. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BARRY ROLAND MILLIMAN,
Plaintiff,

v.

C.A. No. 16-1279-LPS-MPT

NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

MEMORANDUM ORDER
WHEREAS, Chief United States,Magistrate Judg~ Mary Pat Thynge issued a 34-page
Report and Recommendation ("R&R") (D.I. 17), dated September 7, 2017, recommending that
Plaintiff Barry Roland Milliman' s ("Plaintiff' or "Milliman") motion for summary judgment
(D.I. 10) be denied and that Defendant's motion for summary judgment (D.I. 14) be granted;
WHEREAS, on September 25, 2017, Plaintiff timely objected to the R&R (D.I. 18);
·WHEREAS, on October 6, 2017; Defendant responded to Plaintiffs objections (D.I. 19);
WHEREAS, the Court has considered the motion de novo, see Masimo Corp. v. Philips

Elec. N. Am. Corp., 62 F. Supp. 3d 368, 379 (D. Del. 2014); Brown v. Astrue, 649 F.3d 193, 195
(3d Cir. 2011); 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3), and has further reviewed the
pertinent filings;
NOW THEREFORE, IT IS HEREBY ORDERED that:

1

N ancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for former
Commissioner Carolyn W. Colvin. as defendant in this suit.
1

1.

Plaintiffs objections (D.I. 18) are OVERRULED. Judge Thynge's R&R (D.I. 17)

is ADOPTED .. Consistent with Judge Thynge's recommendation, Plaintiffs motion for
summary judgment (D.I. 10) is DENIED, and Defendant's motion for summary judgment (D.I.
14) is GRANTED.
2.

Plaintiff objects to Judge Jhynge's conclusion that the ALJ reasonably gave no

weight to Dr. Feiner's opinions regarding Plaintiff's ability to sit, stand, and walk. (See D.I. 18
at 1-2; see also R&R at 27) Plaintiff contends that the ALJ' s finding, which was premised on the
lack of "objective medical evidence to support such limitations" (D.I. 6 ("Tr.") at 39) and the
omission in "[c]ontemporaneous treatment notes ... [of] [ab]normal physical examination
findings and ... complaints of difficulty" with these activities (id.), "mischaracteriz[es] the
record" and runs afoul of the Third Circuit's instruction in Brownawell v. Commisioner ofSocial
Security, 554 F.3d 352 (3d Cir. 2008). (See D.I. 18 at 1-2)
3.

When an ALJ rejects a treating physician's opinion, the ALJ must explain why

she has done so, sufficient to allow review and a "determin[ation of] whether the reasons for
rejection were improper." Cotter v. Harris, 642 F.2d 700, 707 (3d Cir. 1981). It is not for the
Court to re-weigh the medical opinions in the record. See Gonzalez v. Astrue, 53 7 F. Supp. 2d
644, 659 (D. Del. 2008). Rather, the Court must determine whether substantial evidence exists
to support the ALJ' s weighing of those opinions. See id.
4.

While the ALJ may have erred in asserting that "there is no objective medical

evidence" to support Dr. Feiner's proposed limitations (see Tr. at 39), and thus her opinion could
not have been given no weight on that basis alone, see Morales v. Apfel, 225 F .3d 310, 317 (3d
Cir. 2000) (ALJ cannot "reject evidence for no reason or for the wrong reason") (internal
2

quotation marks .omitted), the ALJ further determined that Dr. Feiner's opinions were
"inconsistent" with other record evidence (Tr. at 39), and this latter determination is supported by
substantial evidence, including omissions in contemporaneous treatment notes.
5.

Plaintiff similarly objects to Judge Thynge's conclusion that the ALJ reasonably

gave no weight to Dr. Molloy's opinions. Plaintiff's assertion that this rejection was made
"solely on the basis that the restrictions described by this source were not included in the doctor's
treatment notes" (D.I. 18 at 2-3) does not accurately reflect the record. (See generally Tr. at 40)
(ALJ giving no weight to cardiologist's limitations because treatment notes were "inconsistent"
with physical limitations and ''do not include any physical restrictions placed on the claimant,"
but also because, among other things, "the claimant denied malaise" and had normal heart rate
and rhythm, and record lacked support for opinions "regarding missing work or the effect of the
claimant's symptoms on attention and concentration")
6.

Plaintiffs objection to Judge Thynge's analysis of the ALJ's decision to afford no

weight to Plaintiffs podiatrist's impairment opinions is similarly unavailing. Among other
things, the ALJ specifically noted the inconsistency between the podiatrist's opinions and
Plaintiffs endocrinologist's assessment. (Tr. at 40; see also id. at 711-16) Plaintiff further
complains that the ALJ improperly "extrapolate[d] a finding that Mr. Milliman can perform
sedentary work out of [the endocrinologist's] report ... [which] failed to give any opinions on
his functioning whatsoever." (D.I. 18) That contention is unpersuasive; the ALJ instead gave the
endocrinologist's questionnaire "significant weight" because its findings were, in the ALJ's
view, consistent with other evidence in the record. (Tr. at 40) As Judge Thynge observed, the
endocrinologist "determined that [P]laintiffhad no clinical findings or symptoms associated with

3

his diabetes and no vascular or neuropathic complications." (R&R at 29)
7.

Nor is the Court persuaded by Plaintiffs objection to Judge Thynge's conclusion

that the ALJ reasonably gave some weight to the state agency's evaluations_. Consistent with the
Court's evaluation of the treating physician evidence above, the Court does not agree with.
Plaintiffs assertion that the ALJ "gave no reason" for departing from the general practice of
affording greater weight to opinions examining sources relative to non-examining sources. (D.I.
18 at 4) Nor is the Court persuaded that the ALJ "impermissibly interpreted the medical data
into the RFC." (D.I. 18 at 5) The ALJ weighed the evidence and found, based on the record, that
Plaintiff was "limited by the combined effects of his impairments, but ... retains the capacity to
perform a range of sedentary wbrk activity with additional non-exertional limitations." (Tr. at
41)

8.

Plaintiff also objects to Judge Thynge's treatment of the ALJ's evaluation of

Plaintiffs testimony. Specifically, Plaintiff contends that Judge Thynge improperly concluded
that the ALJ's "findings were []sufficient to find Mr. Milliman's subjective testimony
unsupported by the record and inconsistent with a finding of disability." (D.I. 18 at 6) Again, as
Judge Thynge observed, the ALJ found that Plaintiffs "impairments could reasonably be
expected to cause the alleged symptoms," but did not fully credit Plaintiffs statements as to the
"intensity, persistence, and limiting effects of these symptoms." (R&R at 32} The record.
contains substantial evidence (including evidence beyond what is identified by Plaintiff (compare
D.I. 18 at 6 with, e.g., Tr. at 38-39)) to support the ALJ's fi

January 2, 2018
Wilmington, Delaware
4