Johnson v. Commissioner of Social Security

3:17-cv-01255-MPS

2018 | Cited 0 times | D. Connecticut | December 6, 2018

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT DION JOHNSON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

No. 3:17-cv-1255 (MPS)

MEMORANDUM AND ORDER Dion Johnson argues that the Administrative Law Judge did not follow my previous decision concerning his case on remand. Because any legal error was harmless in light of the voluminous evidence supporting , I DENY motion to reverse (ECF No. 18), GRANT the motion for an order affirming her decision (ECF No. 26), and AFFIRM the decision. I. Background

I assume familiarity 1

I also assume familiarity with my decision in Johnson v. Colvin, No. 3:14-cv-1446 (MPS), 2016 WL 659664 (D. Conn. Feb. 18, 2016), where I remanded case to the agency for proper application of the treating physician rule to the June 24, 2011 and

1 Although the parties did not file a joint stipulation of facts, I incorporate by reference the in her brief (ECF No. 26 at 5 17), which (because Johnson did not file his own statement of evidence), I treat as stipulated.

August 10, 2012 opinions of S.J. Naqvi, M.D and Tricia Caron, A.P.R.N, which I discuss further below. 2

(R. 478, 547.) II. Discussion

A. Treating Physician Rule Johnson has now filed, pro se, a one-paragraph summary challenge to on remand. (ECF No. 18.) Johnson does not attach a brief or make any argument in support of his challenge. (Id.) Nonetheless, consistent with this [pro se] pleadings liberally to raise the strongest arguments they suggest, I consider whether the ALJ properly followed my order on remand to consider and apply

3 Warren v. Colvin, 744 F.3d 841, 843 (2d Cir. 2014). The applicable Social Security regulations provide that opinions by acceptable medical sources are eligible for deference under the treating physician rule. See 20 C.F.R. § 416.927 Under the treating

impairment is given controlling weight so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal

2 Johnson, 2016 WL 659664, at *3 n.3 (citations and internal quotation marks omitted).

3 The Commissioner, for her part, does not address the treating physician rule, but simply ility determination was supported by substantial evidence. (ECF No. 26 at 19 24.) As the Second Circuit has recognized, where the ALJ misapplies the treating physician rule, the disability determination has not been made under the correct legal principles findings. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

citation and quotation marks omitted); see 20 C.F.R. § 416.927(c)(2) the treating physician is not afforded controlling weight where . . . the treating physician issued

opinions that are not consistent with other substantial evidence . . . . Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). given to the opinions of the treating physician, the ALJ may still assign some weight to those

Schrack v. Astrue, 608 F. Supp. 2d 297, 301 (D. Conn. 2009); 20 C.F.R. § 416.927(c). In deciding how much :

(1) the frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and, (4) whether the physician is a specialist. After considering the above factors, the ALJ must comprehensively set forth his reasons for the weight assigned

Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (internal citations, quotation marks, and alterations omitted); cf. Atwater v. Astrue, 512 F. App 67, 70 (2d Cir. 2013 lavish recitation of each and every factor [is not required] s reasoning and adherence to the regulation are clear .) Greek, 802 F.3d at 375 (citations omitted).

The ALJ here concluded at Step 4 that Johnson had residual functional capacity to perform light work, with certain limitations. 4

(R. 556.) The ALJ two medical opinions in the record by treating physicians: (1) an August 10, 2012 opinion of S.J. Naqvi, M.D. and Tricia Caron, A.P.R.N.; and (2) an earlier, June 24, 2011 opinion also by Dr. Naqvi and

4 Those limitations were that Johnson could: occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds; occasionally balance; occasionally stoop; occasionally kneel; occasionally crouch or crawl; and have no exposure to unprotected heights or to moving mechanical parts. (R. 556.)

Nurse Caron. The ALJ properly applied the rule to the August 10, 2012 opinion, but erred with respect to the June 24, 2011 opinion.

1. August 10, 2012 Opinion of Dr. Naqvi and Nurse Caron First, Naqvi and Nurse Caron. (R. 559.) The August 10, 2012 opinion ascribed substantial functional

limitations to Johnson. (R. 472 73 (noting that during an eight-hour work day, Johnson could

reach, or use his hands and feet repetitively).) The ALJ reasoned that the opinion was not R. 559.) The ALJ further opined that while Johnson had a long history of treatment with Charter Oak[] and Dr. Naqvi specializes in Internal Medicine, he appears to have examined the claimant on very few occasions, whereas Nurse Caron appears to have seen the claimant more frequently because treatment notes

were not submitted in support. (Id.) Finally, the ALJ pointed to specific conclusions in the opinion that were contradicted by the Charter Oak treatment notes as indications that the opinion was conclusory. (R. 559 60 (pointing to lack of record evidence for upper or lower extremity dysfunct weight. Overall, I give the opinion little weight since it has minimal support in the evidence of

In determining that the August 10, 2012 opinion ALJ in substance applied each of the Greek factors. (See R. 559 (explaining (1) that Dr. Naqvi had seen supporting it; (3) that the limitations described in the opinion were inconsistent with the Charter Oak treatment notes over several years; and (4) that Dr. Naqvi specialized in internal medicine.). See Greek, 802 F.3d at 375. Even though the ALJ did not explicitly state that he was applying the faithfully applied the regulation by considering each factor, and applicable precedent requires no more. See Atwater at 70 (holding slavish recitation of each and every under the treating physician rule is unnecessary nce to the regulation are clear ). 5

Accordingly, the ALJ committed no legal error with respect to the August 10, 2012 opinion.

2. June 24, 2011 Opinion by Dr. Naqvi and Nurse Caron T d as an . (R. 560.) 6 That opinion indicated, among other things, that Johnson could sit, stand, and walk for 2 hours or more of an eight-hour workday and that Johnson could also perform other activities, such as lifting or carrying weights under 20 pounds, with occasional or greater frequency (R. 541 42). The ALJ

5 In my previous decision concerning Mr. John determine whether the August 10, 2012 opinion, which is co-signed Nurse Caron, was that of an See Johnson While the ALJ does discuss whether the opinions are inconsistent with other evidence, the ALJ did not make any finding as to medical source because the ALJ applied the treating physician rule to the August 10, 2012 opinion, he necessarily must have determined that

6 I note that Dr. Naqvi appears to be the physician who signed this opinion as well. See Johnson Here, the opinions in question were provided by Tricia Caron, A.P.R.N. and co-signed by S.J. Naqvi, M.D. . . . An earlier opinion dated June 24, 2011 states that he could do these activities on a limited basis. ); compare R. 547 and R. 478 (same signature)). T June 24, 2011 opinion was signed by a physician suggests that he nonetheless treated the June 24, too, but to below why any such error was harmless.

reasoned that the opinion August 10, 2012 opinion by Dr. Naqvi [ed] [

his RFC determination was correct. (R. 560.)

In contrast to the August 10, 2012 opinion, the the June 24, 2011 opinion on its face applied only one of the Greek factors consistency with the remaining medical evidence. The ALJ had an obligation to consider the opinion under each of the factors in deciding how much weight to give it, and he failed to do so. See all of the following factors

in deciding the weight we giv (emphasis added). Nonetheless, because correct application of the Greek factors to the June 24, 2011 opinion would not have led to a different result, I do not remand this error for further consideration.

B. The Record Evidence Supports Only One Conclusion Even where ALJ misapplies the treating physician rule, I need not remand where the correct application of the correct legal principles would lead to the same result. See Johnson, 817 F.2d at rrect legal principles to the record could lead to only one conclusion, there is no need to re cf. Zabala v. Astrue, 595 F.3d 402, 409 10 (2d Cir. 2010) (finding violation of treating physician rule harmless where there was disability determination).

Even if the ALJ had properly applied the treating physician rule to the June 24, 2011 opinion, there is no reasonable likelihood that the ALJ would have reached a different conclusion given the voluminous record evidence residual functional capacity as laid .

T , and, in addition to the two opinions above RFC analysis cited medical evidence between March 2008 and November 2011 that showed

consistently benign physical examinations and that were either well-controlled or stable. (See R. 558 59 (citing, inter alia, R. 395 (April 2009 Charter

Oak notes reflecting hypertension i ; R. 393 (normal July 2010 renal ultrasound); R. 417 (June 2011 Charter Oak notes reflecting normal physical examination and updating medication for hypertension); R. 429 31 (same for November 2011 Charter Oak notes).)

RFC discussion also relied on numerous treatment notes between September 2012 and January 2017 that showed similarly benign physical examinations, normal gait, and that impairments (then including diabetes) were controlled. (R. 560 61 (citing, inter alia, R. 489 91 (September 2012 Charter Oak notes reflect stable diabetes); R. 493 (October 2012 Charter Oak notes reflecting normal gait and sensation in lower extremities); R. 851 (September 2014 UConn Health report reflecting well-controlled blood pressure, resolved edema, and negative systems exam); R. 917 (March 2015 UConn Health report reflecting that kidney disease, hypertension, diabetes were well-controlled); R. 1278-80 (January 2016 UConn Health report reflecting normal gait, stable kidney disease, controlled blood pressure and diabetes); R. 1304 (January 2017 Charter Oak notes reflect generally benign physical exam).)

Id.; see also R. 1022 26 (June 1, 2015 opinion).)) Dr. supervision, coworkers, and the pressures o

In light of the residual functional capacity and thus, was not disabled, application of the correct legal principles, to the extent there was an error, would not change the result here. With regard to the June 24, 2011 opinion, which showed that Johnson could stand, sit, and walk for limited periods during the workday, that opinion was duplicative of the other evidence above demonstrating that Johnson retained some residual functional capacity. Cf. Zabala, 595 F.3d at 409 (declining to remand Accordingly, it is clear that the failure to apply fully the

treating physician rule to this opinion would not have change Indeed, limitations set forth in the June 24, 2011 opinion in any event. (ECF No. 26 at 20 21.)

III. Conclusion

Because the ALJ correctly applied the treating physician rule to the August 10, 2012 opinion, and any error with respect to the June 24, 2011 opinion was harmless, I DENY motion to reverse (ECF No. 18), GRANT for an order to affirm her decision (ECF No. 26), and AFFIRM the decision.

IT IS SO ORDERED.

/s/ Michael P. Shea, U.S.D.J.

Dated: Hartford, Connecticut

December 6, 2018

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT DION JOHNSON, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

No. 3:17-cv-1255 (MPS)

MEMORANDUM AND ORDER Dion Johnson argues that the Administrative Law Judge did not follow my previous decision concerning his case on remand. Because any legal error was harmless in light of the voluminous evidence supporting , I DENY motion to reverse (ECF No. 18), GRANT the motion for an order affirming her decision (ECF No. 26), and AFFIRM the decision. I. Background

I assume familiarity 1

I also assume familiarity with my decision in Johnson v. Colvin, No. 3:14-cv-1446 (MPS), 2016 WL 659664 (D. Conn. Feb. 18, 2016), where I remanded case to the agency for proper application of the treating physician rule to the June 24, 2011 and

1 Although the parties did not file a joint stipulation of facts, I incorporate by reference the in her brief (ECF No. 26 at 5 17), which (because Johnson did not file his own statement of evidence), I treat as stipulated.

August 10, 2012 opinions of S.J. Naqvi, M.D and Tricia Caron, A.P.R.N, which I discuss further below. 2

(R. 478, 547.) II. Discussion

A. Treating Physician Rule Johnson has now filed, pro se, a one-paragraph summary challenge to on remand. (ECF No. 18.) Johnson does not attach a brief or make any argument in support of his challenge. (Id.) Nonetheless, consistent with this [pro se] pleadings liberally to raise the strongest arguments they suggest, I consider whether the ALJ properly followed my order on remand to consider and apply

3 Warren v. Colvin, 744 F.3d 841, 843 (2d Cir. 2014). The applicable Social Security regulations provide that opinions by acceptable medical sources are eligible for deference under the treating physician rule. See 20 C.F.R. § 416.927 Under the treating

impairment is given controlling weight so long as it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal

2 Johnson, 2016 WL 659664, at *3 n.3 (citations and internal quotation marks omitted).

3 The Commissioner, for her part, does not address the treating physician rule, but simply ility determination was supported by substantial evidence. (ECF No. 26 at 19 24.) As the Second Circuit has recognized, where the ALJ misapplies the treating physician rule, the disability determination has not been made under the correct legal principles findings. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).

citation and quotation marks omitted); see 20 C.F.R. § 416.927(c)(2) the treating physician is not afforded controlling weight where . . . the treating physician issued

opinions that are not consistent with other substantial evidence . . . . Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). given to the opinions of the treating physician, the ALJ may still assign some weight to those

Schrack v. Astrue, 608 F. Supp. 2d 297, 301 (D. Conn. 2009); 20 C.F.R. § 416.927(c). In deciding how much :

(1) the frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and, (4) whether the physician is a specialist. After considering the above factors, the ALJ must comprehensively set forth his reasons for the weight assigned

Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (internal citations, quotation marks, and alterations omitted); cf. Atwater v. Astrue, 512 F. App 67, 70 (2d Cir. 2013 lavish recitation of each and every factor [is not required] s reasoning and adherence to the regulation are clear .) Greek, 802 F.3d at 375 (citations omitted).

The ALJ here concluded at Step 4 that Johnson had residual functional capacity to perform light work, with certain limitations. 4

(R. 556.) The ALJ two medical opinions in the record by treating physicians: (1) an August 10, 2012 opinion of S.J. Naqvi, M.D. and Tricia Caron, A.P.R.N.; and (2) an earlier, June 24, 2011 opinion also by Dr. Naqvi and

4 Those limitations were that Johnson could: occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds; occasionally balance; occasionally stoop; occasionally kneel; occasionally crouch or crawl; and have no exposure to unprotected heights or to moving mechanical parts. (R. 556.)

Nurse Caron. The ALJ properly applied the rule to the August 10, 2012 opinion, but erred with respect to the June 24, 2011 opinion.

1. August 10, 2012 Opinion of Dr. Naqvi and Nurse Caron First, Naqvi and Nurse Caron. (R. 559.) The August 10, 2012 opinion ascribed substantial functional

limitations to Johnson. (R. 472 73 (noting that during an eight-hour work day, Johnson could

reach, or use his hands and feet repetitively).) The ALJ reasoned that the opinion was not R. 559.) The ALJ further opined that while Johnson had a long history of treatment with Charter Oak[] and Dr. Naqvi specializes in Internal Medicine, he appears to have examined the claimant on very few occasions, whereas Nurse Caron appears to have seen the claimant more frequently because treatment notes

were not submitted in support. (Id.) Finally, the ALJ pointed to specific conclusions in the opinion that were contradicted by the Charter Oak treatment notes as indications that the opinion was conclusory. (R. 559 60 (pointing to lack of record evidence for upper or lower extremity dysfunct weight. Overall, I give the opinion little weight since it has minimal support in the evidence of

In determining that the August 10, 2012 opinion ALJ in substance applied each of the Greek factors. (See R. 559 (explaining (1) that Dr. Naqvi had seen supporting it; (3) that the limitations described in the opinion were inconsistent with the Charter Oak treatment notes over several years; and (4) that Dr. Naqvi specialized in internal medicine.). See Greek, 802 F.3d at 375. Even though the ALJ did not explicitly state that he was applying the faithfully applied the regulation by considering each factor, and applicable precedent requires no more. See Atwater at 70 (holding slavish recitation of each and every under the treating physician rule is unnecessary nce to the regulation are clear ). 5

Accordingly, the ALJ committed no legal error with respect to the August 10, 2012 opinion.

2. June 24, 2011 Opinion by Dr. Naqvi and Nurse Caron T d as an . (R. 560.) 6 That opinion indicated, among other things, that Johnson could sit, stand, and walk for 2 hours or more of an eight-hour workday and that Johnson could also perform other activities, such as lifting or carrying weights under 20 pounds, with occasional or greater frequency (R. 541 42). The ALJ

5 In my previous decision concerning Mr. John determine whether the August 10, 2012 opinion, which is co-signed Nurse Caron, was that of an See Johnson While the ALJ does discuss whether the opinions are inconsistent with other evidence, the ALJ did not make any finding as to medical source because the ALJ applied the treating physician rule to the August 10, 2012 opinion, he necessarily must have determined that

6 I note that Dr. Naqvi appears to be the physician who signed this opinion as well. See Johnson Here, the opinions in question were provided by Tricia Caron, A.P.R.N. and co-signed by S.J. Naqvi, M.D. . . . An earlier opinion dated June 24, 2011 states that he could do these activities on a limited basis. ); compare R. 547 and R. 478 (same signature)). T June 24, 2011 opinion was signed by a physician suggests that he nonetheless treated the June 24, too, but to below why any such error was harmless.

reasoned that the opinion August 10, 2012 opinion by Dr. Naqvi [ed] [

his RFC determination was correct. (R. 560.)

In contrast to the August 10, 2012 opinion, the the June 24, 2011 opinion on its face applied only one of the Greek factors consistency with the remaining medical evidence. The ALJ had an obligation to consider the opinion under each of the factors in deciding how much weight to give it, and he failed to do so. See all of the following factors

in deciding the weight we giv (emphasis added). Nonetheless, because correct application of the Greek factors to the June 24, 2011 opinion would not have led to a different result, I do not remand this error for further consideration.

B. The Record Evidence Supports Only One Conclusion Even where ALJ misapplies the treating physician rule, I need not remand where the correct application of the correct legal principles would lead to the same result. See Johnson, 817 F.2d at rrect legal principles to the record could lead to only one conclusion, there is no need to re cf. Zabala v. Astrue, 595 F.3d 402, 409 10 (2d Cir. 2010) (finding violation of treating physician rule harmless where there was disability determination).

Even if the ALJ had properly applied the treating physician rule to the June 24, 2011 opinion, there is no reasonable likelihood that the ALJ would have reached a different conclusion given the voluminous record evidence residual functional capacity as laid .

T , and, in addition to the two opinions above RFC analysis cited medical evidence between March 2008 and November 2011 that showed

consistently benign physical examinations and that were either well-controlled or stable. (See R. 558 59 (citing, inter alia, R. 395 (April 2009 Charter

Oak notes reflecting hypertension i ; R. 393 (normal July 2010 renal ultrasound); R. 417 (June 2011 Charter Oak notes reflecting normal physical examination and updating medication for hypertension); R. 429 31 (same for November 2011 Charter Oak notes).)

RFC discussion also relied on numerous treatment notes between September 2012 and January 2017 that showed similarly benign physical examinations, normal gait, and that impairments (then including diabetes) were controlled. (R. 560 61 (citing, inter alia, R. 489 91 (September 2012 Charter Oak notes reflect stable diabetes); R. 493 (October 2012 Charter Oak notes reflecting normal gait and sensation in lower extremities); R. 851 (September 2014 UConn Health report reflecting well-controlled blood pressure, resolved edema, and negative systems exam); R. 917 (March 2015 UConn Health report reflecting that kidney disease, hypertension, diabetes were well-controlled); R. 1278-80 (January 2016 UConn Health report reflecting normal gait, stable kidney disease, controlled blood pressure and diabetes); R. 1304 (January 2017 Charter Oak notes reflect generally benign physical exam).)

Id.; see also R. 1022 26 (June 1, 2015 opinion).)) Dr. supervision, coworkers, and the pressures o

In light of the residual functional capacity and thus, was not disabled, application of the correct legal principles, to the extent there was an error, would not change the result here. With regard to the June 24, 2011 opinion, which showed that Johnson could stand, sit, and walk for limited periods during the workday, that opinion was duplicative of the other evidence above demonstrating that Johnson retained some residual functional capacity. Cf. Zabala, 595 F.3d at 409 (declining to remand Accordingly, it is clear that the failure to apply fully the

treating physician rule to this opinion would not have change Indeed, limitations set forth in the June 24, 2011 opinion in any event. (ECF No. 26 at 20 21.)

III. Conclusion

Because the ALJ correctly applied the treating physician rule to the August 10, 2012 opinion, and any error with respect to the June 24, 2011 opinion was harmless, I DENY motion to reverse (ECF No. 18), GRANT for an order to affirm her decision (ECF No. 26), and AFFIRM the decision.

IT IS SO ORDERED.

/s/ Michael P. Shea, U.S.D.J.

Dated: Hartford, Connecticut

December 6, 2018

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