United States District Court, D. Connecticut
ORDER REMANDING CASE
W. THOMPSON UNITED STATES DISTRICT JUDGE.
reasons set forth below, the decision of the Commissioner is
reversed and this case is remanded for additional proceedings
consistent with this order.
court's function when reviewing a denial of disability
benefits is first to ascertain whether the Commissioner
applied the correct legal principles in reaching a
conclusion, and then whether the decision is supported by
substantial evidence. See Johnson v. Bowen, 817 F.2d
983, 985 (2d Cir. 1987). Absent legal error, this court may
not set aside the decision of the Commissioner if it is
supported by substantial evidence. See Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
defendant argues that the ALJ properly considered the medical
opinions of record. The ALJ's opinion contains a detailed
analysis of the medical record that is persuasive in all but
one important respect. The opinion states that “[i]n
finding that the claimant has the residual functional
capacity found herein, the undersigned has taken into account
treating and examining sources Drs. Cheng, McGibbon and
Vanbeek, as well as, other treating and examining
sources' findings of the claimant's physical
functioning and given it weight.” (Tr. 26) The opinion
then goes on to state that the ALJ gives great weight to the
statements and opinions of “treating and examining
physicians Drs. McGibbon and Vanbeek” and gives
“partial weight to Dr. Cheng's statements and
opinions, to the extent that they support that the
claimant's overall physical function does not preclude
her performing all activities of daily living.”
(Tr.26). The opinion then states that the ALJ “has
given minimal weight to Dr. Cheng's November 2014
report.” (Tr. 26).
is apparent that Dr. McGibbon's statements and opinions
have been given material weight by the ALJ in reaching her
conclusions. However, the court cannot locate in the record
the purported statements and opinions by Dr. McGibbon. The
opinion states that
Treating physician, Bruce McGibbon, M.D. indicated that
although the claimant had only partially met her goals, she
was expected to have continued progress and improvement,
particularly after obtaining her prescribed compression
garment. At the time of discharge, Dr. McGibbon reported that
the claimant had mildly decreased right shoulder range of
motion of 4-5. Dr. McGibbon diagnosed the claimant with
lymphedema and shoulder joint region pain, and recommended
she continue her therapeutic exercises at home (Exhibit 17F,
24). However, Exhibit 17F is the notes from the physical
therapist to whom Dr. McGibbon referred the plaintiff. (See
Tr. 832 (referring physician Bruce McGibbon).) Later in the
opinion, the ALJ states “Dr. McGibbon noted that the
claimant reported experiencing no pain or swelling (Exhibit
16F, pg. 116; and 20F, pgs. 1 and 6).” (Tr. 25). Again
this is a statement by the physical therapist, not by Dr.
opinion of a claimant's treating physician as to the
nature and severity of the 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 evidence in [the] case
record.'” Burgess v. Astrue, 537 F.3d 117,
128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2));
see also Mariani v. Colvin, 567 F. App'x 8, 10
(2d Cir. 2014) (“A treating physician's opinion
need not be given controlling weight where it is not
well-supported or is not consistent with the opinions of
other medical experts” where those other opinions
amount to “substantial evidence to undermine the
opinion of the treating physician”). “The
regulations further provide that even if controlling weight
is not given to the opinions of the treating physician, the
ALJ may still assign some weight to those views, and must
specifically explain the weight that is actually given to the
opinion.” Schrack v. Astrue, 608 F.Supp.2d
297, 301 (D. Conn. 2009) (citing Schupp v. Barnhart, No.
Civ. 3:02CV103 (WWE), 2004 WL 1660579, at *9 (D. Conn.
Mar. 12, 2004)). It is “within the province of the ALJ
to credit portions of a treating physician's report while
declining to accept other portions of the same report, where
the record contained conflicting opinions on the same medical
condition.” Pavia v. Colvin, No. 6:14-cv-06379
(MAT), 2015 WL 4644537, at *4 (W.D.N.Y. Aug. 4, 2015) (citing
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir.
determining the amount of weight to give to a medical
opinion, the ALJ must consider several factors: the examining
relationship, the treatment relationship (the length, the
frequency of examination, the nature and extent), evidence in
support of the medical opinion, consistency with the record,
specialty in the medical field, and any other relevant
factors. 20 C.F.R. § 404.1527. In the Second Circuit,
“all of the factors cited in the regulations”
must be considered to avoid legal error. See Schaal v.
Apfel 134 F.3d 496, 504 (2d Cir. 1998).
because the ALJ's opinion does not actually cite to
statements and opinions of Dr. McGibbon, the court cannot
conclude that the decision to put the greater weight on,
among other things, the statements and opinions of Drs.
McGibbon and Vanbeek than on the statements and opinions of
Dr. Cheng to which the ALJ gave minimal or partial weight was
supported by substantial evidence.
court notes that the defendant accurately cites to Section E
of Listing 13.10 as providing: “With secondary
lymphedema that is caused by anticancer therapy and treated
by surgery to salvage or restore the functioning of an upper
extremity.” 20 C.F.R. Part 404, Subpart P, Appendix 1
(emphasis added). The defendant then argues that the
plaintiff admits that she did not undergo surgery to treat
lymphedema. However, the applicable requirement is that the
plaintiff's condition “meet or equals” a
listed impairment (20 C.F.R. § 416.920(a)(4)(iii)), and
the plaintiff argues that her condition medically equalled a
listed impairment. This point should be addressed on remand.
reasons set forth above, Plaintiff's Motion for Order
Reversing the Decision of the Commissioner or In the
Alternative Motion for Remand for a Hearing (Doc. No. 15) is
hereby GRANTED, and Defendant's Motion for an Order
Affirming the Decision of the Commissioner (Doc. No. 18) is
hereby DENIED. This case is hereby REMANDED to the
Commissioner for rehearing consistent with this ruling.
Clerk shall ...