Hill v. Colvin

Filing 29

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/15/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JONATHAN JAY HILL
:
v.

:

Civil Action No. DKC 15-1027

:
CAROLYN W. COLVIN
:
MEMORANDUM OPINION
This

case

DiGirolamo

was

for

referred

pretrial

to

Magistrate

management

and

Judge
a

Thomas

Report

and

Recommendation for disposition, which Judge DiGirolamo issued on
June

8,

2016.

(“Plaintiff”)

(ECF
filed

Recommendation.
Plaintiff’s

No.

22).

Plaintiff

Jonathan

Jay

Hill

Report

and

an

(ECF

objection

objection

to

the

No.

25).

the

following

will

be

For

overruled,

and

the

reasons,

Report

and

Recommendation will be adopted.
I.

Background
Additional factual background may be found in the Report

and Recommendation.

(ECF No. 22, at 2-9).

Plaintiff suffered a

cerebrovascular accident, or a stroke, on May 19, 2012, which
Plaintiff contends prevented him from working.

(Id.

at 3).

Plaintiff protectively filed for disability insurance benefits
and supplemental security income on May 29, 2013.
application

was

denied

initially

and

on

After his

reconsideration,

Plaintiff requested a hearing before an administrative law judge
(“ALJ”).

Following

the

hearing,

the

ALJ

issued

a

decision

finding that Plaintiff was not disabled under the definitions of
the Social Security Act.

(ECF No. 11-3, at 21-31).

Plaintiff’s

request for review from the appeals council was denied, and the
ALJ’s decision became the final decision of the Commissioner.
On April 10, 2015, Plaintiff filed a complaint in this
court

seeking

review

of

the

ALJ’s

decision.

(ECF

No.

1).

Plaintiff moved for summary judgment or, in the alternative, to
remand.

(ECF

No.

17).

Defendant

Carolyn

W.

Colvin

(“Defendant”) filed a motion for summary judgment (ECF No. 18),
and Plaintiff responded (ECF No. 21).

On June 8, 2016, Judge

DiGirolamo issued a Report and Recommendation recommending that
this court grant Defendant’s motion, deny Plaintiff’s motion,
and affirm the ALJ’s decision.

(ECF No. 22).

On June 24,

Plaintiff filed an objection to the Report and Recommendation
(ECF No. 25), and Defendant responded (ECF No. 28).

Plaintiff

argues that Judge DiGirolamo did “not address at all the ALJ’s
failure

to

consider”

certain

medical

entries

in

the

record.

(ECF No. 25, at 8).
II.

Standard of Review
A.

Review of Magistrate Judge’s Report and Recommendation

Pursuant to 28 U.S.C. § 636, a district judge may designate
a

magistrate

judge

to

conduct
2

hearings

and

report

proposed

findings of fact and recommendations for action on a dispositive
motion.

Thereafter,
A
party
who
is
aggrieved
by
a
magistrate judge’s report and recommendation
as to a dispositive motion must file
“specific written objections to the proposed
findings
and
recommendations”
within
fourteen days. Fed.R.Civ.P. 72(b)(2). The
district judge must then “determine de novo
any
part
of
the
magistrate
judge’s
disposition that has been properly objected
to.” Fed.R.Civ.P. 72(b)(3).
But, the Court
“need only conduct a de novo review of those
portions of the Magistrate Judge’s Report
and Recommendation to which objection is
made.”
Chavis v. Smith, 834 F.Supp. 153,
154 (D.Md. 1993).
As to those portions of
the report for which there is no objection,
the district court “must ‘only satisfy
itself that there is no clear error on the
face of the record in order to accept the
recommendation.’”
Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 315–16 (4th
Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
committee note), cert. denied, 546 U.S. 1091
(2006).

Baltimore Line Handling Co. v. Brophy, 771 F.Supp.2d 531, 534-35
(D.Md. 2011).

Here, Plaintiff’s objection contends:

Respectfully, the Magistrate Judge’s
Report and Recommendation fails to address
Plaintiff’s primary argument that the ALJ
decision
failed
to
consider
numerous
critical pieces of medical evidence and
explain how, if at all, that evidence was
evaluated in concluding that the opinion of
treating psychiatrist Milan Joshi, M.D.’s
opinion was entitled to “no weight” and that
“the medical evidence . . . does not
substantiate disabling limitations.”
In
particular, the Magistrate Judge’s Report
and Recommendation simply addresses the
medical evidence in general terms without
3

considering any specific medical
ignored by the ALJ’s decision.
(ECF No. 25, at 1).

entries

In short, Plaintiff argues that the ALJ

impermissibly ignored pieces of material evidence regarding his
medical condition.
review

of

regarding

the
the

Thus, the undersigned will conduct a de novo

portions
ALJ’s

of

the

assessment

Report

of

and

evidence.

Recommendation
The

remaining

sections of the Report and Recommendation will be assessed for
clear error.
B.

Federal Court Review of ALJ Decision

The United States Court of Appeals for the Fourth Circuit
recently

summarized

the

standard

of

review

courts

reviewing an ALJ’s decision in a Social Security case:
Our review of the decision of the [ALJ]
in an action involving disability benefits
is quite limited. We must uphold the ALJ’s
factual findings if they are supported by
substantial evidence and reached by applying
the correct legal standard.
Hancock v.
Astrue, 667 F.3d 470, 472 (4th Cir. 2012).
“Substantial
evidence
is
such
relevant
evidence as a reasonable mind might accept
as adequate to support a conclusion.” Craig
v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)
(internal
citations
omitted)
(quotation
marks omitted). It “consists of more than a
mere scintilla of evidence but may be less
than a preponderance.”
Smith v. Chater, 99
th
F.3d 635, 638 (4 Cir. 1996).
When we review whether substantial
evidence supports the findings of the ALJ,
“we do not undertake to reweigh conflicting
evidence, make credibility determinations,
or substitute our judgment for that of the
[ALJ].”
Johnson v. Barnhart, 434 F.3d 650,
4

use

when

653 (4th Cir. 2005) (internal citations and
quotation
marks
omitted).
“Where
conflicting evidence allows reasonable minds
to differ as to whether a claimant . . . is
disabled,
the
responsibility
for
that
decision falls on [the ALJ].”
Craig, 76
F.3d at 589.
“[T]he substantial evidence
standard ‘presupposes . . . a zone of choice
within which the decisionmakers can go
either way, without interference by the
courts. An administrative decision is not
subject
to
reversal
merely
because
substantial evidence would have supported an
opposite decision.’”
Clarke v. Bowen, 843
th
F.2d 271, 272–73 (8
Cir. 1988) (quoting
Baker v. Heckler, 730 F.2d 1147, 1150 (8th
Cir. 1984)) (internal citation omitted).
Dunn v. Colvin, 607 F.App’x 264, 266 (4th Cir. 2015) (omissions
and alterations in original).
III. Analysis
Plaintiff contends that the Report and Recommendation does
not adequately address the ALJ’s alleged failure to consider
certain medical entries, which Plaintiff believes establishes he
was disabled.
objects

to

the

(See ECF No. 25, at 8).
fact

that

the

ALJ

Specifically, Plaintiff

“afford

no

weight”

to

an

assessment made by Dr. Milan Joshi, who averred that Plaintiff
was unable to function at work from January to July 2013.
at 3).

In his decision, the ALJ explained:
The undersigned afforded no
Joshi’s assessment, as it is
with the medical evidence of
Joshi’s own treatment notes.
in January 2013, Dr. Joshi
claimant a [global assessment
(“GAF”)] score of 75, which
5

weight to Dr.
not consistent
record or Dr.
For example,
assigned the
of functioning
represents no

(Id.

more than a slight impairment in social,
occupational, or school functioning, with
transient
and
expectable
reactions
to
psychological stressors if symptoms are
present.
The claimant’s score on the Minimental state examination during that time
period
was
30/30,
suggesting
normal
cognition.
Dr. Joshi’s notes from that
time-period state that the claimant was much
improved on his current medications.
In
March 2013, Dr. Joshi assigned the claimant
a GAF score of 65, which represents only
some mild symptoms or some difficulty in
social, occupational, or school functioning,
but generally functioning pretty well.
In
July 2013, Dr. Joshi assigned the claimant a
GAF score of 60, which represents moderate
symptoms or moderate difficulty in social,
occupational, or school functioning, but
this is the same month that the claimant
felt well enough to begin part-time work, as
discussed above.
(ECF

No.

11-3,

at

28

(citations

omitted)).

The

ALJ

then

discussed other medical and opinion evidence, determining that
Plaintiff

“had

the

residual

functional

capacity

to

perform

sedentary work . . . except [Plaintiff] can occasionally climb
ramps, stairs, ropes, ladders, and scaffolds, balance, stoop,
kneel, crouch, and crawl; and he is limited to simple, routine,
repetitive tasks with no production rate for pace of work.”
(Id. at 25-29).
Plaintiff

contends

that

the

“ALJ’s

decision

fails

to

mention or consider in any way” some of Dr. Joshi’s notes.

(See

ECF

that

No.

25,

at

4-5).

For

example,

Dr.

Joshi

noted

Plaintiff was depressed and asserted that he was “not back to

6

his baseline level of functioning” and did not go on a family
vacation because “he did not want to deal with people.”
5).

Moreover,

according

to

Plaintiff,

the

ALJ

(Id. at

failed

to

consider several pieces of evidence regarding Plaintiff’s mental
and cognitive difficulties, including those that indicate that
Plaintiff suffered from at least a “mild cognitive-communication
deficit.”

(Id. at 5-7).

Plaintiff argues that such pieces of

evidence “are supportive of Dr. Joshi’s assessment.

They also

weigh against the conclusion in the ALJ’s decision that ‘the
medical

evidence

limitations.’”

.

.

.

does

not

substantiate

disabling

(Id. at 7 (quoting ECF No. 11-3, at 27)).

A review of the record shows that the ALJ’s decision was
based

on

“substantial

deference.

evidence”

and

should

be

afforded

See Dunn, 607 F.App’x at 271 (“We must defer to the

ALJ’s assignments of weight unless they are not supported by
substantial evidence.”).
While
the
Commissioner’s
decision
must
“contain a statement of the case, in
understandable language, setting forth a
discussion of the evidence, and stating the
Commissioner’s determination and the reason
or reasons upon which it is based,” 42
U.S.C. § 405(b)(1), “there is no rigid
requirement that the ALJ specifically refer
to every piece of evidence in his decision.”
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th
Cir. 2005).
Reid v. Commissioner of Social Sec., 769 F.3d 861, 865 (4th Cir.
2014).

As

Judge

DiGirolamo

noted,
7

the

ALJ

described

with

particularity the reasons why he gave Dr. Joshi’s opinion no
weight, most notably that it was contradicted by more persuasive
evidence.
(“[I]f

a

evidence

(ECF No. 22, at 18-19); see Craig, 76 F.3d at 590
physician’s
or

if

it

opinion
is

is

not

inconsistent

supported
with

by

other

clinical

substantial

evidence, it should be accorded significantly less weight.”).
Plaintiff has not articulated, beyond merely listing the
pieces of evidence he believes the ALJ failed to consider, how
such

evidence

would

have

changed

the

decision.

That

is,

Plaintiff has not shown that the purported unconsidered evidence
so undermines the evidence cited in the decision as to put into
question whether the ALJ’s decision was supported by substantial
evidence.

See Dunn, 607 F.App’x at 271 (“Simply stated, there

is more than a ‘scintilla of evidence’ in the record supporting
the ALJ’s conclusion that Dr. Swing’s opinion is incongruent
with both his own treatment notes and some of the other medical
evidence in the record.”).
contends

went

unconsidered

Much of the evidence that Plaintiff
by

the

ALJ

suggests

“occasional” lapses in Plaintiff’s progress.
at 5-7).
showing

“mild”

or

(See ECF No. 25,

Such evidence is countered by substantial evidence
continued

progress

discussed by the ALJ.

and

increased

functionality,

(ECF No. 11-3, at 27-29).

as

Moreover, as

in Reid, the ALJ “stated that the whole record was considered,

8

and absent evidence to the contrary, [the court] take[s] [him]
at [his] word.”

Reid, 769 F.3d at 1211.

Finally, the two cases Plaintiff cites in his brief do not
counsel a different outcome.
751

(4th

Cir.

2015),

the

In Fox v. Colvin, 632 F.App’x 750,
Fourth

Circuit

directed

that

the

district court remand the case for further proceedings because
the ALJ’s opinion “failed to provide sufficient reasoning to
allow for meaningful judicial review.”

Unlike here, however,

the ALJ in Fox “fail[ed] to provide any explanation” for his
determination and made only “a cursory and conclusory analysis”
without providing “any reason” for his decision.

Id. at 756.

The Fourth Circuit noted:
When denying an application, “[T]he notice
of
the
determination
or
decision
must
contain specific reasons for the weight
given to the treating source’s medical
opinion, supported by the evidence in the
case
record,
and
must
be
sufficiently
specific to make clear to any subsequent
reviewers the weight the adjudicator gave to
the treating source’s medical opinion and
the reasons for that weight.”
Id.

(quoting SSR 96-2p, 61 Fed.Reg. 34,490, 34,492 (July 2,

1996)).

Similarly, in Raeke v. Commissioner, Social Sec., No.

GLR-15-1726, 2016 WL 892856, *2 (D.Md. Mar. 9, 2016), Magistrate
Judge Stephanie A. Gallagher held that the ALJ’s decision lacked
the required specificity.

In Raeke, the ALJ gave less weight to

a physician’s opinion because the opinion was contrary to his

9

treatment notes.

Judge Gallagher held that the treatment notes

actually were unclear and “could be deemed to support either
position.”

Id.

Judge Gallagher recommended remanding the case

because the ALJ failed to cite specific evidence undermining the
physician’s

opinion

treatment notes.

beyond

Id.

the

incomplete

reference

to

the

Here, on the other hand, the ALJ based

his determination not only on Dr. Joshi’s treatment notes, but
also on several pieces of other evidence that undermine Dr.
Joshi’s opinion.

Unlike in Fox and Raeke, the ALJ has put forth

numerous specific reasons for his determination.
Plaintiff’s
overruled.
is

no

objection

to

the

Report

and

Accordingly,

Recommendation

is

Because a review of the record indicates that there

clear

error

in

the

portions

of

the

Report

and

Recommendation to which Plaintiff did not object, the Report and
Recommendation will be adopted in its entirety.
IV.

Conclusion
For

the

foregoing

reasons,

the

court

will

overrule

Plaintiff’s objection and adopt the Report and Recommendation by
separate order.

/s/
DEBORAH K. CHASANOW
United States District Judge

10