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Johnson v. Berryhill

United States District Court, D. Connecticut

December 6, 2018

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

          MEMORANDUM AND ORDER

          MICHAEL P. SHEA, U.S.D.J.

         In this appeal from the Social Security Commissioner's denial of benefits, 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 the ALJ's determination of Johnson's residual functional capacity, I DENY Johnson's motion to reverse (ECF No. 18), GRANT the Commissioner's motion for an order affirming her decision (ECF No. 26), and AFFIRM the Commissioner's decision.

         I. Background

         This is the second time Mr. Johnson's case has come before this Court. I assume familiarity with Johnson's medical history.[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 Johnson's case to the agency for proper application of the “treating physician rule” to the June 24, 2011 and 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 the ALJ's decision for failing to follow this Court's mandate 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 Court's broader mandate to “construe [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 the “treating physician rule.”[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(a)(2), (c)(2) (for claims filed before March 27, 2017, “treating source[s]” potentially entitled to controlling weight must be an “acceptable medical source”). Under the treating physician rule, “the 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) (internal citation and quotation marks omitted); see 20 C.F.R. § 416.927(c)(2). However, “the opinion of 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). “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); 20 C.F.R. § 416.927(c). In deciding how much weight to give a treating physician's opinion, the ALJ must explicitly consider:

(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 to a treating physician's opinion.

Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (internal citations, quotation marks, and alterations omitted); cf. Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013) (“[S]lavish recitation of each and every factor [is not required] where the ALJ's reasoning and adherence to the regulation are clear”.) “The failure to provide good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand.” Greek, 802 F.3d at 375 (citations omitted).

         The ALJ here concluded at Step 4 that Johnson had residual functional capacity (“RFC”) to perform light work, with certain limitations. [4] (R. 556.) The ALJ's RFC analysis addressed 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 Nurse Caron. The ALJ properly applied the “treating physician” 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, the ALJ concluded that he gave “little weight” to the August 10, 2012 opinion of Dr. 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 “never” stand, walk, lift or carry any weight greater than five pounds, bend, squat crawl, climb, reach, or use his hands and feet repetitively).) The ALJ reasoned that the opinion was not supported by the record evidence, including a history of “generally benign” physical exams. (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 and regularly.” (R. 559.) The ALJ also explained that the August 10, 2012 opinion was “in a checklist form, ” which was “not very convincing evidence, ” especially 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 dysfunction).) The ALJ concluded: “the opin[i]on from Dr. Navqi is not entitled to controlling weight. Overall, I give the opinion little weight since it has minimal support in the evidence of record.” (R. 560.)

         In determining that the August 10, 2012 opinion merited “little weight, ” the ALJ in substance applied each of the Greek factors. (See R. 559 (explaining (1) that Dr. Naqvi had seen Johnson on “very few” occasions; (2) that the August 10, 2012 opinion had no treatment notes 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 “treating physician rule, ” it is clear that the ALJ faithfully applied the regulation by considering each factor, and applicable precedent requires no more. See Atwater, 512 Fed.Appx. at 70 (holding that “slavish recitation of each and every factor” ...


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