Caraballo v. Colvin
Filing
22
ORDER granting 11 Motion to Reverse, Modify or Remand Decision of the Commissioner; denying 15 Motion to Affirm the Decision of the Commissioner; and ruling on 18 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 9/30/2018. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
VIRGEN C.,
)
)
Plaintiff,
)
C.A. No. 16-480 WES
)
v.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
___________________________________)
ORDER
WILLIAM E. SMITH, Chief Judge.
Magistrate
Judge
Patricia
A.
Sullivan
filed
a
Report
and
Recommendation (“R. & R.”) (ECF No. 18) in which she called Plaintiff
Virgen C.’s case a “close call,” ultimately suggesting, however,
that the Court deny Virgen’s 1 Motion to Reverse the Decision of the
Commissioner (ECF No. 11) and grant Defendant’s Motion for an Order
Affirming the Commissioner’s Decision (ECF No. 15).
its
own
hearing,
and
reviewing
Magistrate
After holding
Judge
Sullivan’s
thoughtful and thorough R. & R., the Court makes the admittedly
difficult call presented by this case a little differently, and
remands for further administrative proceedings.
Review of a final decision in a disability claimant’s case
includes “determining whether the ALJ [Administrative Law Judge]
deployed the proper legal standards and found facts upon the proper
1
The Court uses Virgen’s first name in the interest of privacy;
no disrespect is intended.
quantum of evidence,” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.
1999), which means upholding an ALJ’s factual findings if they are
supported
by
“substantial
evidence,”
that
scintilla,” but less than a preponderance.
is,
“more
than
a
Purdy v. Berryhill, 887
F.3d 7, 13 (1st Cir. 2018) (quotation marks omitted).
The Court will skip a recapitulation of the case’s procedural
history – referring those interested to that found in the R. & R.
(see
R.
&
R.
2-6)
-
and
go
straight
to
Virgen’s
meritorious
objection, which is that the ALJ improperly discounted the opinion
of Virgen’s treating physician, 2 leaving the residual functional
capacity 3 (“RFC”) formulated for Virgen without substantial support.
Cf. Ledoux v. Acting Comm’r, Soc. Sec. Admin., Civil No. 17–cv–707–
JD, 2018 WL 2932732, at *9–10 (D.N.H. June 12, 2018) (remanding where
residual functional capacity unsupported by substantial evidence).
Dr. Laura Ofstead of Women and Infants Hospital, who had treated
Virgen for ten years, completed a “Physical Capacity Questionnaire”
(“Questionnaire”) six days before Virgen’s hearing before the ALJ.
(R. 653–56, ECF No. 7.)
There Dr. Ofstead noted that Virgen’s
“significant” hip pain “limits [her] mobility,” that one of her
diagnoses
was
“[h]ip
osteoarthritis,”
and
that
Virgen
would
2
A treating physician is someone “who provides [claimant], or
has provided [claimant], with medical treatment or evaluation and
who has, or has had, an ongoing treatment relationship with
[claimant].” 20 C.F.R. §§ 404.1527(a)(2).
3
Residual functional capacity is “the most [a claimant] can
still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1).
2
“[l]ikely . . . benefit from hip replacement.”
(Id. at 654.)
It
was Dr. Ofstead’s opinion that Virgen could rarely lift “something
as heavy as 1 gallon of milk” and would frequently “need to lie down
(Id. at 655.)
due to pain, fatigue, or the effects of medication.”
Dr. Ofstead also thought Virgen’s condition would cause her to be
frequently “off task” at work.
(Id.)
Needless to say, Dr. Ofstead’s
opinion belies the RFC found here by the ALJ – light work (R. 23) –
which would have Virgen “frequent[ly] lifting or carrying . . .
objects weighing up to 10 pounds,” and doing “a good deal of walking
or standing” or, if “sitting most of the time[,] . . . pushing and
pulling . . . arm or leg controls.”
20 C.F.R. § 416.967(b).
The law says that opinions like Dr. Ofstead’s – that is, those
of treating physicians’ – are to be given “controlling weight,” if
“well-supported
by
medically
acceptable
clinical
and
laboratory
diagnostic techniques and . . . not inconsistent with the other
substantial
evidence
in
[the]
case
record.”
20
C.F.R.
§
404.1527(c)(2) (explaining that treating physicians “are likely to
be
the
medical
professionals
most
able
to
provide
a
detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports
of individual examinations”).
And even if not controlling, the
weight given a treating physician’s opinion must be supported by
“good reasons.”
Id. §§ 404.1527(c)(2), 416.927(c)(2).
3
Here the ALJ gave Dr. Ofstead’s opinion “less probative weight”
because she is “just a primary care physician” and the assessment
she provided on the Questionnaire was “inconsistent with [her]
treating progress notes which show minimal examination/diagnostic
test findings.”
(R. 25–26.)
These are not reasons enough to
discount Dr. Ofstead’s opinion:
are not ipso facto incredible.
for one, primary-care physicians
See Meadors v. Astrue, 370 F. App’x
179, 182–83 (2d Cir. 2010) (holding that ALJ erred in affording
primary-care-physician’s opinion “little weight” where he was the
one “to whom [claimant] complained on several occasions of severe
back pain, [and he] . . . had the opportunity to review the clinical
findings
and
opinions
of
specialists
with
whom
[claimant]
did
consult.”); Lannon v. Comm’r of Soc. Sec. Admin., 234 F. Supp. 3d
951, 957 (D. Ariz. 2017) (“Although more weight generally is to be
given to the opinion of a specialist, this does not mean that the
primary
care
physician’s
opinion
should
be
given
no
weight.”
(citation omitted)).
Moreover, treating physicians are qualified to make evaluations
like Dr. Ofstead’s without first recording the results of diagnostic
tests in their patients’ files.
See Orn v. Astrue, 495 F.3d 625,
634 (9th Cir. 2007) (“The primary function of medical records is to
promote communication and recordkeeping for health care personnel –
not to provide evidence for disability determinations.”).
Their
evaluations are subject to doubt, of course, to the extent they are
4
contradicted
by
other
parts
of
an
administrative
record.
See
Bourinot v. Colvin, 95 F. Supp. 3d 161, 176–77 (D. Mass. 2015)
(finding
where
that
there
treating-physicians’
was
“a
steady,
opinions
significant
properly
discounted
disconnect
between
[claimant]’s symptoms as described in the records and the limitations
described
in
questionnaires”).
noted
on
a
the
primary
care
physicians’
impairment
In Bourinot, for example, a treating physician
physical-capacity
questionnaire
that
the
claimant’s
arthritis caused “marked limitations in her ability to grasp, turn,
and twist objects, and use her fingers,” id. at 177 – an opinion the
ALJ reasonably found to be exaggerated when the administrative record
contained statements from the claimant that her hands worked fine,
and that she in fact enjoyed bowling.
Id.
But unlike in Bourinot, where the ALJ pointed to evidence
directly contradicting the opinion of treating physicians’, the ALJ
here divined contradiction out of thin air, interpreting an absence
of evidence as evidence of absence.
(See R. 25–26.)
Not only that,
there was corroboration in the record for Dr. Ofstead’s diagnosing
Virgen with hip osteoarthritis.
(See, e.g., R. 510 (showing Dr.
Maher B. El-Khatib reporting Virgen’s diagnosis as “[b]ilateral hip
osteoarthritis”); R. 617 (showing diagnosis of “[m]ild bilateral hip
osteoarthropathy,
imaging).)
left
greater
than
right”
based
on
medical
Indeed, specialists at Blackstone Orthopedics & Sports
Medicine (“Blackstone”) reported in April 2015 that Virgen’s hips
5
showed
signs
of
osteoarthritis.
(R.
646).
A
physician
at
Blackstone, Dr. Maher B. El-Khatib, also noted that if hip injections
continued to provide Virgen minimal relief, “[s]he will be followed
up by the orthopedic surgeon for any recommendation.”
(R. 647.)
The ALJ’s rush to disregard Dr. Ofstead’s opinion, and its
corroboration, is especially puzzling given the evidence on which he
ultimately based Virgen’s RFC: the opinions of non-testifying stateagency physicians and that of testifying expert Dr. Louis Fuchs.
(See R. 25–26.)
As Magistrate Judge Sullivan pointed out in her R.
& R., the state-agency physicians formed their opinion of Virgen’s
functional capacity in 2014, before Virgen’s treatment at Blackstone
(R. & R. 14), that is, before an important part of Virgen’s medical
saga had come to pass.
The state-agency physicians did not know,
for example, that Virgen would go on to have surgery to alleviate
her carpal tunnel syndrome.
(R. 515.)
Or that she would receive
repeated injections to her hips and knees to relieve her arthritis
(see, e.g., R. 527, 529, 644, 646), treatments with limited success
as she “continu[ed] to have . . . pain” (R. 527).
That the state-agency physicians were not privy to parts of
Virgen’s medical record detracts from the weight that can be afforded
their opinions.
See Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994)
(“[T]he amount of weight that can properly be given the conclusions
of
non-testifying,
circumstances,
non-examining
including
the
physicians
nature
6
of
will
the
vary
with
the
illness
and
the
information provided the expert.” (quotation marks omitted)).
In
fact, if a state-agency physician reviews only a partial record, her
“opinion cannot provide substantial evidence to support [an] ALJ’s
residual functional capacity assessment if later evidence supports
the claimant’s limitations.”
Ledoux, 2018 WL 2932732, at *4; see
also Rosario v. Apfel, 85 F. Supp. 2d 62, 68 (D. Mass. 2000) (finding
that a non-treating physician’s opinion is only entitled to “minimal,
if any, weight” when it is based on a review of a partial record).
To be sure, medical developments occurring after a state-agencyphysicians’ review do not preclude an ALJ from partially relying on
that review, if it is found that the post-review developments do not
constitute a significant worsening of the claimant’s condition.
See
Giusti v. Astrue, No. CA 11–360ML, 2012 WL 4034512, at *10 (D.R.I.
Aug. 22, 2012), adopted, 2012 WL 4036120 (D.R.I. Sept. 12, 2012).
The ALJ in this case, however, made no such finding.
(See R. 25-
26.)
And Magistrate Judge Sullivan’s reasoning that the testimony at
the hearing by Dr. Fuchs – who was supposed to have reviewed Virgen’s
complete record – fills the gap in the state-agency review is a
bridge too far.
(R. & R. 14–15).
Dr. Fuchs testified that his
review of the record showed that besides “some pain” in Virgen’s hip
her “musculoskeletal system was okay,” and that there was no evidence
of “significant problems with the hips or knees.”
(R. 51–52.)
But
his examination by Virgen’s attorney indicated that Dr. Fuchs too
7
had reviewed an incomplete record. (See R. 52–53.) This examination
started with questions regarding the fact most at odds with Dr.
Fuchs’s sanguine opinion of Virgen’s orthopedic health, namely, her
myriad hip and knee injections.
(Id.)
What becomes clear in
reviewing his testimony, though, is that Dr. Fuchs had not been
provided the part of the record documenting these injections.
id.)
(See
For when Virgen’s attorney began by pointing Dr. Fuchs to pages
3, 20, and 22 of Exhibit 16F, Dr. Fuchs stopped the questioning at
multiple points to ask for a page number – “What page is that,
please?” – before divulging that his “CD starts at page 28.”
(Id.)
Because Dr. Fuchs’s testimony was itself premised on an incomplete
record, it cannot be used to fill the gap in the state-agencyphysicians’ review.
The RFC formulated for Virgen – buttressed neither by the
opinion of Virgen’s treating physician, nor that of adequately
informed non-treating sources – is not supported by substantial
evidence.
Therefore, the Court GRANTS Virgen’s Motion (ECF No. 11)
and DENIES Defendant’s (ECF No. 15).
This case is remanded to the
Commissioner for further proceedings consistent with the foregoing.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: September 30, 2018
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