Sanders v. Social Security Administration, Commissioner of

Filing 23

ORDER: 1. The Court ACCEPTS and ADOPTS Magistrate Judge Lee's findings of fact, conclusions of law, and recommendations (Doc. 19 ) pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b); 2. Plaintiff's Objections (Doc. [2 0]) are OVERRRULED; 3. Plaintiff's Motion for Judgment on the Pleadings (Doc. 15 ) is DENIED; 4. Defendant's Motion for Summary Judgment (Doc. 17 ) is GRANTED; 5. The decision of the Commissioner is AFFIRMED; and 6. This matter is DISMISSED WITH PREJUDICE. Signed by District Judge Harry S Mattice, Jr on 8/7/2018. (BJL,)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
DANIEL SANDERS,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Case No. 1:17-cv-64
Judge Mattice
Magistrate Judge Lee

ORDER
On June 1, 2018, United States Magistrate Judge Susan K. Lee filed her Report and
Recommendation (Doc. 19) pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil
Procedure 72(b). Magistrate Judge Lee recommended that (1) Plaintiff’s First Motion for
Judgment on the Pleadings (Doc. 15) be denied; (2) Defendant’s Motion for Summary
Judgment (Doc. 17) be granted; and (3) the decision of the Commissioner be affirmed.
(Doc. 19 at 21).
Plaintiff filed timely objections to the Magistrate Judge’s Report and
Recommendation (Doc. 20). Specifically, Plaintiff argues that: (1) the Magistrate Judge
erred in finding the ALJ’s failure to address a treating physician opinion constituted
harmless error and (2) the lack of medical records supporting a finding of Plaintiff’s
disability should be overlooked, because the destruction of Plaintiff’s medical records was
through no fault of his own. (Id.). The Court reviews Plaintiff’s objections de novo. See 28
U.S.C. § 636(b)(3).

The Court has conducted a review of the Report and Recommendation, as well as
the record, and it agrees with Magistrate Judge Lee’s well-reasoned conclusions for the
reasons stated herein.
I.

TREATING PHYSICIAN OPINION

Plaintiff first argues that the ALJ failed both to consider the treating physician
opinion of Dr. Skyhawk Fadigan and to give good reasons for not affording the opinion
controlling weight pursuant to 20 C.F.R. § 404.1527(c)(2).1
The record reflects that Dr. Fadigan treated Plaintiff at least from September 2003
through July 2005, primarily for back pain. (Doc. 8 at 251-76). On 2016, counsel for
Plaintiff wrote to Dr. Fadigan regarding Plaintiff’s disability application. Dr. Fadigan
returned the letter with handwritten answers to the letter’s queries. Dr. Fadigan states
that that she remembered seeing Plaintiff but did not recall the last time she provided
treatment. Dr. Fadigan provided conclusory assessments as to Plaintiff’s ability to
function or the outlook for improvement, giving no explanation or basis for these
opinions. (Id. at 238-40). The ALJ did not mention or discuss Dr. Fadigan’s opinion in
the order denying benefits, stating that “[t]he record shows no treating source
statements.” (Id. at 29).
The Magistrate Judge addressed this issue at length in the Report and
Recommendation, and found that the ALJ’s failure to discuss Dr. Fadigan’s opinion
constituted harmless error. As stated by the Magistrate Judge:
In this case, Dr. Fadigan’s opinion is merely answers to six yes-or-no type
questions posed by counsel, and she cites to no medical evidence or
information to support her answers. Furthermore, she admits her treatment

“If we find that a treating source’s medical opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.”
20 C.F.R. § 404.1527(c)(2).

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of Plaintiff ended well before his alleged onset date. She does not produce
and does not cite to any medical evidence or information from near the time
of Plaintiff’s alleged onset date; nor is there any in the record. . . . Her
responses were written over six years after the alleged onset date, and
apparently close to ten years after Dr. Fadigan concluded her treatment of
Plaintiff. . . . Her responses are also extremely conclusory, and describe no
functional limitations at all. For example, without even explaining the
requirements of “light work” other than describing it as “like a grocery store
cashier,” counsel asks Dr. Fadigan to opine, based on her experience with
Plaintiff nearly a decade prior, whether Plaintiff “had greater than light level
work ability.”
(Doc. 19 at 13-14). On this basis, the Magistrate Judge concluded that while “the ALJ’s
total failure to acknowledge Dr. Fadigan’s responses to counsel’s post-hearing letter is
troubling,” the failure amounted to harmless error. (Id. at 15-16).
In his objections, Plaintiff reiterates that the ALJ did not consider Dr. Fadigan’s
opinion whatsoever in the order denying benefits, and insists that the possibility that the
ALJ might not have been aware of the opinion warrants remand. As set forth below, these
arguments are without merit.
The United States Court of Appeals for the Sixth Circuit has held that, under
certain circumstances, an ALJ’s omission in acknowledging or discussing the report of a
treating physician may constitute harmless error. Heston v. Comm’r of Soc. Sec., 245 F.3d
528, 535-36 (6th Cir. 2001). In Heston, the ALJ opinion failed to mention a treating
physician’s summary of the claimant’s medical history. Id. On appeal, the Sixth Circuit
held: “Although the ALJ should have included a reference to the report in its findings, the
failure to do so, in this case, was harmless error.” Id. at 536. The Sixth Circuit reasoned
that the treating physician had “no current information” regarding the claimant, nor did
he provide any objective medical evidence or records as a “basis for his conclusions.” Id.
at 535-36. The Court finds that this case presents facts that are remarkably similar to
Heston, and therefore, it reaches the same conclusion.
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Plaintiff emphasizes the procedural importance of the treating physician rule and
argues that the Magistrate Judge’s findings regarding the veracity of Dr. Fadigan’s
opinion invades the province of the ALJ. Plaintiff cites Wilson v. Comm’r of Soc. Sec., 378
F.3d 541 (6th Cir. 2004) in support of his argument. In Wilson, the Sixth Circuit held that
procedural error, such as failure to consider a treating physician opinion “is not made
harmless simply because [the aggrieved party] appears to have had little chance of success
on the merits[.].” Id. at 546. The Sixth Circuit also held in Wilson, however, that
[This] is not to say that a violation of the procedural requirement of [the
treating physician rule] could never constitute harmless error . . . . [I]f a
treating source’s opinion is so patently deficient that the Commissioner
could not possibly credit it, a failure to observe [the treating physician rule]
may not warrant reversal.
Id. at 547; see also Bass v. McMahon, 499 F.3d 506, 514 (6th Cir.2007) (“This evidence
would not change the ALJ's decision, and remand for further consideration is not
required.”); Shkabari v. Gonzales, 427 F.3d 324, 328 (6th Cir.2005) (“No principle of
administrative law or common sense requires us to remand a case in quest of a perfect
opinion unless there is reason to believe that the remand might lead to a different result.”
(internal quotation marks and alteration omitted)).
The Magistrate Judge found that the circumstances of this case fall under the
limited exception outlined in Wilson; that is, that Dr. Fadigan’s opinion is so “patently
deficient” that the ALJ could not possibly credit it. Given the total lack of objective
evidence supporting the opinion, or in any valid basis to support Dr. Fadigan’s opinion,
the Court agrees. Accordingly, Plaintiff’s objection will be OVERRULED.

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II.

LACK OF MEDICAL RECORDS

Plaintiff reminds the Court repeatedly that the lack of medical records supporting
a finding a disability in this case exists not through lack of treatment, but because the bulk
of Plaintiff’s treatment records were destroyed on two separate occasions by floods
affecting his doctor’s office. Specifically, the record contains the following letter from the
office manager of Riverside Family Medicine:
This letter is in response to a request for medical records on a patient Danny
Sanders. Our office had a flood on May 3rd 2010 and another big one on
August 8th 2013. All medical records that were in storage were destroyed.
All the records were of patients that had been seen in the past or that had
transferred out of the practice. We are now on electronic medical records to
avoid this happening in the future. We apologize for any inconvenience to
the patients or business that need the records for legal purposes. The
insurance company should be able to pull the claims up for dates of service
needed to get the diagnosis codes.
(Doc. 8 at 627).
Both the ALJ and Magistrate Judge noted the lost treatment records. (Doc. 8 at 28;
Doc. 19 at 2). Neither the ALJ nor the Magistrate Judge, however, based their findings or
conclusions on this fact. The ALJ briefly stated that the majority of the records were lost,
but then went on to analyze the evidence that was contained in the record, and found that
the same did not support a finding of disability. (Doc. 8 at 25-30). Similarly, the
Magistrate Judge in the Report and Recommendation observed that the medical records
were destroyed, but analyzed the existing medical records and other record evidence.
(Doc. 19). While the Court agrees that the loss of the records is unfortunate, as their
presence might have shed more light on Plaintiff’s medical conditions, their contents
could not have been inferred by either the ALJ or the Magistrate Judge. Both were bound
by the actual contents of the record, as is this Court. For this reason, Plaintiff’s objection
in this regard will be OVERRULED.
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III.

CONCLUSION

For the reasons set forth above,
1.

The Court ACCEPTS and ADOPTS Magistrate Judge Lee’s findings of
fact, conclusions of law, and recommendations (Doc. 19) pursuant to 28
U.S.C. § 636(b)(1) and Rule 72(b);

2.

Plaintiff’s Objections (Doc. 20) are OVERRRULED;

3.

Plaintiff’s Motion for Judgment on the Pleadings (Doc. 15) is DENIED;

4.

Defendant’s Motion for Summary Judgment (Doc. 17) is GRANTED;

5.

The decision of the Commissioner is AFFIRMED; and

6.

This matter is DISMISSED WITH PREJUDICE.

SO ORDERED this the 7th day of August, 2017.

/s/ Harry S. Mattice, Jr._____
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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