Keener v. Colvin

Filing 17

ORDER ADOPTING 16 REPORT AND RECOMMENDATION GRANTING plaintiff's 10 motion for judgment on the pleadings or, in the alternative, to remand for further proceedings and denying defendant's 11 motion for judgment on the pleadings; FUR THER, the decision of the Commissioner of Social Security is reversed and the matter is remanded for further administrative proceedings. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 1/25/2017. (CMD) -CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
JONI LYNN KEENER,
Plaintiff,

16-CV-28(LJV)(HBS)
ORDER

v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
__________________________________

On June 13, 2016, the plaintiff moved for judgment on the pleadings, or, in the
alternative, to remand the matter for further development of the record. Docket Item 10.
On August 12, 2016, the defendant responded to the plaintiff’s motion and moved for
judgment on the pleadings. Docket Item 11. And on September 8, 2016, the plaintiff
filed a reply and response to the defendant’s motion. Docket Item 14.
On October 26, 2016, this Court referred this case to United States Magistrate
Judge Hugh B. Scott for all proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). Docket
Item 15. On December 6, 2016, Judge Scott issued a Report and Recommendation
finding that the plaintiff’s motion for judgment on the pleadings should be granted and
that the defendant’s motion should be denied. Docket Item 16. The parties did not
object to the Report and Recommendation, and the time to do so now has expired. See
28 U.S.C. 636(b)(1); Fed. R. Civ. P. 72(b)(2).
A district court may accept, reject, or modify, in whole or in part, the findings or
recommendation of a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

A district court must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72 requires a
district court to review the recommendation of a magistrate judge to which no objections
are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge Scott’s Report and Recommendation as well as the parties’
submissions. Based on that review and the absence of any objections, the Court
accepts and adopts Judge Scott’s recommendation to grant the plaintiff’s motion for
judgment on the pleadings and deny the defendant’s motion.
A treating physician’s findings should be given controlling weight so long as they
are “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and [are] not inconsistent with other substantial evidence.” 20 C.F.R.
§ 404.1527(c)(2). Although an Administrative Law Judge may choose not to give a
treating physician’s medical opinion controlling weight, he or she must provide “good
reasons” for doing so. Id.; Burgess v. Astrue, 537 F.3d 117, 129-30 (2d Cir. 2008).
Here, in rejecting the medical opinions of Dr. Simmons, the treating physician,
the ALJ conflated two different sets of opinions—those addressing the plaintiff’s cervical
spine problems and those addressing her lumbar spine. In doing so, he relied too
heavily on a remark by Dr. Simmons that the plaintiff was doing “quite well” after her
March 2013 cervical spine surgery. First, this comment was relative: Dr. Simmons was
comparing the plaintiff’s cervical spine issues before surgery to her recovery post

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surgery. Even more basically, Dr. Simmons was addressing the plaintiff’s cervical back
problems, not her lumbar problems.
Indeed, in the same medical evaluation as his “quite well” remark, Dr. Simmons
noted the plaintiff’s “continued . . . problems with her lower back.” And despite the
improvement in his patient’s cervical spine post surgery, Dr. Simmons had less than
rosy conclusions with respect to her lumbar condition. More specifically, both before
and after the plaintiff’s cervical spine surgery, Dr. Simmons concluded that because of
her lumbar problems, the plaintiff was unable to sit or stand for prolonged periods of
time and she might need surgery in the future. He also opined that the plaintiff’s lumbar
symptoms were “gradually worsening.”
Rather than give controlling weight to Dr. Simmons’s medical opinions on the
plaintiff’s cervical and lumbar back issues, the ALJ gave great weight to the opinion of a
medical consultant who reviewed the plaintiff’s medical record in February 2013. That
review, which occurred a month before the plaintiff underwent surgery, clearly was
stale—with respect to both the improving condition of the plaintiff’s cervical spine after
surgery and the deteriorating condition of her lumbar spine.
In light of the above, the ALJ did not provide good reasons for failing to give
controlling weight to the treating physician’s medical opinion. See 20 C.F.R.
§ 404.1527(c)(2).
For the reasons stated above and in the Report and Recommendation, the
plaintiff’s motion for judgment on the pleadings or, in the alternative, to remand for
further proceedings (Docket Item 10) is GRANTED; the defendant’s motion for judgment
on the pleadings (Docket Item 11) is DENIED; the decision of the Commissioner of

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Social Security is REVERSED; and the matter is remanded for further administrative
proceedings.
SO ORDERED.

Dated: January 25, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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