Strickland v. Astrue
Filing
16
MEMORANDUM OPINION AND ORDER finding that the ALJ's findings are supported by substantial evidence and were reached by application of the correct legal standards. The Court overrules plaintiff's 15 Objection to Proposed Findings and Recommendation, adopts the 14 PROPOSED FINDINGS AND RECOMMENDATION, and dismisses this case from the docket. A seperate Judgment Order will enter this day. Signed by Judge Thomas E. Johnston on 9/9/2011. (cc: attys; any unrepresented party) (lca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CHARLES D. STRICKLAND,
Plaintiff,
v.
CIVIL ACTION NO. 2:10-cv-00765
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Charles D. Strickland’s Complaint seeking review of the
decision of the Commissioner of Social Security (Commissioner). [Docket 2.] By Standing Order
entered August 1, 2006, and filed in this case on May 24, 2010, this action was referred to United
States Magistrate Judge Mary E. Stanley for submission of proposed findings and a recommendation
(PF & R) (Docket 4.) Magistrate Judge Stanley filed a PF & R on May 31, 2011, recommending that
this Court affirm the final decision of the Commissioner and dismiss this matter from the Court’s
docket. (Docket 14.)
The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file timely
objections constitutes a waiver of de novo review and the Petitioner’s right to appeal this Court’s
Order. 28 U.S.C. § 636(b)(1); see also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir.1989);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not conduct
a de novo review when a party “makes general and conclusory objections that do not direct the Court
to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982). Objections to the PF & R in this case were due on June 17, 2011,
and Plaintiff filed a document styled “Plaintiff’s Objections to Proposed Report and
Recommendations” on that day. (Docket 15.) The Commissioner did not file objections.
I. Procedural Background
The facts concerning this matter are more fully set forth in the PF & R. In short, on March
1, 2007, Plaintiff filed an application for disability benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401-433 (2006).1 (Docket 10-5 at 80.) On April 15, 2007, following initial
administrative denials of his claims, Administrative Law Judge, Harry C. Taylor, II (hereinafter
“ALJ”) conducted a hearing at which Plaintiff testified and presented evidence in support of his
claim. (Docket 10-2 at 18-35.) At the hearing, the ALJ granted Plaintiff’s request for more time to
obtain additional evidence to support his claim. (Docket 10-2 at 21-22.) Despite this extension of
time, Plaintiff failed to submit any additional medical records from the period of disability onset.
(Id. at 13.)
On January 18, 2008, the ALJ concluded that Plaintiff was not entitled to disability benefits
because “the sparse objective medical evidence [did] not establish an impairment or combination
of impairments that significantly limited the claimant’s ability to perform basic work-related
activities for 12 consecutive months; therefore the claimant did not have a severe impairment or
combination of impairments (20 CFR 404.1521).” (Id. at 13-14, 17.) Plaintiff’s request for review
1
An application summary prepared by a Social Security worker states that the application was
completed on March 9, 2007. (Docket 10-5 at 2.)
2
of the ALJ’s decision was denied by the Administration’s Appeals Council and, thus, the ALJ’s
decision became the final decision of the Commissioner. (Docket 10-2 at 2-4.)
Having exhausted his administrative remedies, Plaintiff filed his Complaint in this Court on
May 23, 2010. (Docket 2.) Following briefing by the parties, Magistrate Judge Stanley filed a PF
& R on May 31, 2011, recommending that this Court affirm the final decision of the Commissioner.
(Docket 14.)
II. Objection to the PF & R
Plaintiff’s sole objection to the PF & R is: “The Decision failed to recognize the severity of
Mr. Strickland’s impairments by failing to accord adequate weight and credibility to the opinions
of treating and examining physicians as to his condition as of his date last insured.” (Id. at 1.) In
support of this contention, Plaintiff references two specific sentences in the PF & R
1.
the magistrate’s conclusion that “Dr. Rotter’s suggested total disability due to ‘bone
spurs’ is not supported by the objective evidence of record and is based on short term
treatment of less than four months.” (Docket 14 at 23); and
2.
the magistrate’s conclusion that “the ALJ has provided ‘good reasons’ for not giving
controlling weight to Dr. Rotter’s statements of total disability.” (Id.)
Plaintiff, citing 20 C.F.R. §§ 404.1527(d) & 416.927(d), argues that “the ALJ was required
to give the opinion of a treating source controlling weight if he finds the opinion well-supported and
not inconsistent with the other substantial evidence in the record” and that “[i]f the opinion is not
accorded controlling weight, the ALJ must apply certain factors” as set forth in the regulations. (Id.
at 2.) Plaintiff concludes that the
ALJ’s blank statement that the treating source’s opinion is not supported by the
objective evidence of record and is based on short term treatment of less than four
months is insufficient to satisfy the requirements of 20 C.F.R. §§ 404.1527(d) &
416.927(d). The regulations require a more in-depth discussion of the factors
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outlined. The ALJ erred in not complying with the regulations by giving his treating
physicians adequate weight.”
(Id. at 2.)2
III. Standard of Review
Pursuant to Fed. R. Civ. P. 72(b)(3), the Court must determine de novo any part of a
magistrate judge’s disposition to which a proper objection has been made. This Court is authorized
to review the Commissioner’s denial of benefits, as set forth by his designee, the ALJ, under 42
U.S.C. §§ 405(g) and 1383(c)(3). Pursuant to these provisions, the sole issue before the Court is
whether the final decision of the Commissioner denying Plaintiff’s claims for benefits is supported
by substantial evidence and was reached by application of the correct legal standard. See 42 U.S.C.
§ 405(g); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). The findings of the Commissioner as
to any fact shall be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).
“Substantial evidence is . . . such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Evidence is substantial
if “it consists of more than a mere scintilla of evidence but may be somewhat less than a
2
The Court is troubled by Plaintiff’s counsel’s oft-repeated failure to direct her objections to
the Magistrate Judge's findings and recommendations. While the heading of Plaintiff’s filing states
it is an objection to the “Proposed Report and Recommendations [sic],” Plaintiff's counsel assigns
error not to the PF & R, but rather to the “Decision” of the ALJ. It is apparent that the objection was
simply copied wholesale from Plaintiff’s administrative review filing. (Docket at 135.) Such
practice suggests a lack of comprehension by counsel of this Court’s role in reviewing Plaintiff’s
Complaint. Further muddling things, the Plaintiff’s objection faults the ALJ for failing to accord
adequate weight and credibility to the “opinions” of treating and examining “physicians,” yet here,
Plaintiff’s challenge is limited to the ALJ’s rejection of just one physician’s opinion.
Because, however, Plaintiff’s filing states that the document represents "Plaintiff’s
Objections to Proposed Report and Recommendations [sic],” and because the Plaintiff has
specifically referenced two sentences within the Magistrate’s twenty-eight page PF & R, the Court
will conduct de novo review of the record to resolve Plaintiff’s objection.
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preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966). “In reviewing for substantial
evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of the Secretary.” Craig, 76 F.3d at 589 (citing
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
IV. Discussion
Plaintiff’s objection presents issues of both fact and law. His challenge to the finding that
Dr. Rotter’s opinion was not supported by the evidence is factual in nature. His claim that erred in
complying with the regulations is a legal challenge. However, substantial evidence supports the
ALJ’s factual findings and that the ALJ applied the correct legal standards.
Plaintiff, who bore the burden of proving he was disabled and who was permitted additional
time to secure relevant medical evidence, provided scant proof in support of his claim of disability.
Contrary to Plaintiff’s characterization, the ALJ did not provide a “blank statement” in making its
determination to give Dr. Rotter’s opinion little weight. (Id. at 2.) The record shows the ALJ
provided a thorough recitation and analysis of the limited medical evidence of record, carefully
reviewed and considered the Plaintiff’s testimony, and applied the correct legal standards. (Docket
10-2 at 13-17.) In order to give a treating source’s opinion “controlling weight,” an ALJ must be able
to find: 1) that the opinion is supported by clinical and laboratory diagnostic techniques; and 2) that
it is not inconsistent with other substantial evidence. 20 C.F.R. § 404.1527(d)(2).
The ALJ correctly determined that Dr. Rotter’s opinion could not be given controlling weight
where the record contained no objective medical evidence to support a finding of a severe medically
determinable impairment expected to last for a continuous period of at least twelve months during
the date of alleged onset to the date when Plaintiff was last insured. See 20 C.F.R. §
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404.1520(a)(4)(ii). Dr. Rotter’s entire opinion, which was given two years prior to the date of
alleged onset of disability, is bare bones. (Docket 10-7 at 3.) It consists of a one page Group
Disability Form in which he handwrote “Bone Spurs” as the complete description of Plaintiff’s
injury. While the form indicates Plaintiff was first seen by Dr. Rotter on December 27, 1989, and
last seen by him in April 17, 1990, there is no evidence how often, if at all, the Plaintiff was seen by
Dr. Rotter in between these two dates; rather, the one-page form indicates that treatment was “PRN,”
that is, as needed. Id. In response to the form’s question: “On what date did the patient become
totally and continuously disabled?” Dr. Rotter wrote “12/27/89.” Id. Nowhere in this “opinion”
did Dr. Rotter support his conclusion with any objective medical evidence or any other basis. Id.
Dr. Rotter’s opinion that Plaintiff was disabled is, of course, not a medical opinion;3 but it is a
conclusion that cannot be reasonably reconciled with other evidence in the record—such as the
results of a lumbar spinal MRI scan (that was performed some ten years after Dr. Rotter saw Plaintiff
and just a few months prior to Plaintiff’s testimony before the ALJ) showing only “mild” disc
bulging. (Docket 10-7 at 25.) Simply put, while the evidence in the record established that Plaintiff
had a medical impairment, i.e. “bone spurs,” Dr. Rotter’s opinion of disability was not consistent
with other substantial evidence in the record and offered nothing to aid the inquiry as to whether that
the impairment significantly limited Plaintiff’s ability to do basic work activities. 20 C.F.R. §§
404.1520(a)(4)(ii) & 404.1521(a). For these reasons, the Court finds the ALJ’s decision to give Dr.
Rotter’s little weight is supported by substantial evidence.
3
The determination of disability is not a medical opinion, but rather a determination made by the
Commissioner as to whether a claimant meets the statutory definition of disability. 20 C.F.R. §
416.927.
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Plaintiff also challenges the ALJ’s application of the correct legal standard through his
contention that 20 C.F.R. §§ 404.1527(d) & 416.927(d) required the ALJ to provide a “more in
depth” discussion of the factors outlined in these regulations. These two regulations are identical
and provide:
(d) How we weigh medical opinions. Regardless of its source, we will evaluate every
medical opinion we receive. Unless we give a treating source's opinion controlling weight
under paragraph (d)(2) of this section, we consider all of the following factors in deciding
the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the opinion of a
source who has examined you than to the opinion of a source who has not examined
you.
(2) Treatment relationship. Generally, we give more weight to opinions from your
treating sources, since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of your 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, such
as consultative examinations or brief hospitalizations. If we find that a treating
source's 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. When we do not give the treating source's
opinion controlling weight, we apply the factors listed in paragraphs (d)(2)(i) and
(d)(2)(ii) of this section, as well as the factors in paragraphs (d)(3) through (d)(6) of
this section in determining the weight to give the opinion. We will always give good
reasons in our notice of determination or decision for the weight we give your
treating source's opinion.
(i) Length of the treatment relationship and the frequency of examination.
Generally, the longer a treating source has treated you and the more times
you have been seen by a treating source, the more weight we will give to the
source's medical opinion. When the treating source has seen you a number
of times and long enough to have obtained a longitudinal picture of your
impairment, we will give the source's opinion more weight than we would
give it if it were from a nontreating source.
(ii) Nature and extent of the treatment relationship. Generally, the more
knowledge a treating source has about your impairment(s) the more weight
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we will give to the source's medical opinion. We will look at the treatment the
source has provided and at the kinds and extent of examinations and testing
the source has performed or ordered from specialists and independent
laboratories. For example, if your ophthalmologist notices that you have
complained of neck pain during your eye examinations, we will consider his
or her opinion with respect to your neck pain, but we will give it less weight
than that of another physician who has treated you for the neck pain. When
the treating source has reasonable knowledge of your impairment(s), we will
give the source's opinion more weight than we would give it if it were from
a nontreating source.
(3) Supportability. The more a medical source presents relevant evidence to support
an opinion, particularly medical signs and laboratory findings, the more weight we
will give that opinion. The better an explanation a source provides for an opinion,
the more weight we will give that opinion. Furthermore, because nonexamining
sources have no examining or treating relationship with you, the weight we will give
their opinions will depend on the degree to which they provide supporting
explanations for their opinions. We will evaluate the degree to which these opinions
consider all of the pertinent evidence in your claim, including opinions of treating
and other examining sources.
(4) Consistency. Generally, the more consistent an opinion is with the record as a
whole, the more weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of a specialist about
medical issues related to his or her area of specialty than to the opinion of a source
who is not a specialist.
(6) Other factors. When we consider how much weight to give to a medical opinion,
we will also consider any factors you or others bring to our attention, or of which we
are aware, which tend to support or contradict the opinion. For example, the amount
of understanding of our disability programs and their evidentiary requirements that
an acceptable medical source has, regardless of the source of that understanding, and
the extent to which an acceptable medical source is familiar with the other
information in your case record are relevant factors that we will consider in deciding
the weight to give to a medical opinion.
(emphasis added.); see also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (tracking the
factors set forth in 20 C.F.R. § 404.1527(d)(1)-(6)).
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These regulations state that the Social Security Administration will “always give good
reasons” for its determination of the weight given to a treating source’s opinion. 20 C.F.R. §§
404.1527(d)(2) & 416.927(d)(2). The purpose of this requirement is that it allows claimants to
understand the disposition of their cases and “ensures that the ALJ applies the treating physician rule
and permits meaningful appellate review of the ALJ’s application of the rule.” Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 544-45 (6th Cir. 2004).
While these provisions set the forth the factors an ALJ considers in assigning weight to a
treating source’s opinion, they are silent as to the standard for the sufficiency of the ALJ’s
explanation for his decision. Social Security Ruling 96-2P, while lacking the force of law, offers
helpful guidance on this question. SSR 96-2P, 1996 WL 374188 * 5 (July 2, 1996); Pass v. Chater,
65 F.3d 1200 n.3 (4th Cir. 1995)( “Social Security Rulings . . . do not have the force of law [but]
they are entitled to deference unless they are clearly erroneous or inconsistent with the law.”)(internal
citation omitted). This Ruling requires an adjudicator to provide “specific reasons” for the weight
assigned to a treating source’s medical opinion. Id. The Ruling states that the reasons “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. The Ruling also provides
that a “case cannot be decided in reliance on a medical opinion without some reasonable support for
the opinion and the opinion may not be given “controlling weight” if the adjudicator finds that the
opinion is not “well-supported by medically acceptable clinical and laboratory diagnostic techniques
or if it is inconsistent with the other substantial evidence in the case record.” Id. at *2.
As the Magistrate Judge found, the ALJ expressly noted his “good reasons” for assigning
little weight to Dr. Rotter’s medical opinion. (Docket 14 at 23-24.) In his decision, the ALJ stated:
9
On May 23, 1990, Norman J. Rotter, M.D., the claimant’s then treating physician,
completed a Group Disability Insurance form, in which he opined the claimant had
been totally and continuously disabled since December 27, 1989, due to bone spurs.
Dr. Rotter based his opinion on short-term treatment from December 27, 1989 to
April 17, 1990 (less than four months). Further, Dr. Rotter provided no objective
findings to support a finding of disabled (Exhibit 2F). For the aforementioned
reasons, little weight is given to this opinion (SSR 96-2p).
(Docket 102 at 16.)
The ALJ’s explanation for ascribing “little weight” to Dr. Rotter’s opinion, while succinct,
is legally sufficient, especially when considered in the context of the ALJ’s entire decision. The
ALJ’s explanation explicitly states the degree of weight he gave to Dr. Rotter’s opinion (i.e. “little”)
and there is no mystery on review that the ALJ’s reason for his decision was that the length of Dr.
Rotter’s treatment of Plaintiff was quite brief (i.e., “less than four months”) and that Dr. Rotter’s
opinion contained “no objective findings” to support a finding of disability. These specific reasons
correlate directly to several of the factors specified in those regulations, namely, the “Length of the
treatment relationship and frequency of examinations” and “Nature and extent of the treatment
relationship,” [20 C.F.R. §§ 404.1527(d)(2)(i) &(ii) & 416.927(d)(2)(i)& (ii)] and the “Treatment
relationship” and “Supportability” factors set forth in 20 C.F.R. §§ 404.1527(d)(2) & (3) and
416.927(d)(2) & (3). Nothing in Dr. Rotter’s one-page form provides “a longitudinal picture” of
Plaintiff’s impairment. Nowhere in the opinion does he offer any analysis or even comment on the
severity of Plaintiff’s impairment. Nowhere in the opinion does he present “relevant evidence to
support [his] opinion, particularly medical signs and laboratory findings.” Finally, it is notable that
in his decision the ALJ explicitly states that he considered opinion evidence in accordance, inter alia,
with 20 C.F.R. §§ 404.1527 and Social Security Ruling 96-2P, a fact which leaves no doubt that he
was mindful of the correct legal standards in reaching his decision. (Docket 10-2 at 16.) As such,
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it is apparent that the ALJ applied the correct legal standard in making its decision and properly
declined to give Dr. Rotter’s opinion controlling weight when the record contained substantial
evidence to the contrary.
The Court FINDS that the ALJ’s findings are supported by substantial evidence and were
reached by application of the correct legal standards. Accordingly, the Court OVERRULES
Plaintiff’s objection, ADOPTS the PF&R (Docket 14), DISMISSES Plaintiff’s Complaint [Docket
2], and DISMISSES this case from the docket. A separate Judgment Order will enter this day
implementing the rulings contained herein.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER: September 9, 2011
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