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Winston v. Colvin

United States District Court, E.D. Wisconsin

November 16, 2016

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration Defendant.



         Plaintiff Mstadi Winston applied for social security benefits, alleging that he became disabled as of September 26, 2009, due to kidney disease, neck and back problems, diabetes, and other impairments. An Administrative Law Judge (“ALJ”) denied the application, but on plaintiff's request for judicial review the district court sent the case back for further proceedings. In the meantime, plaintiff had filed another application, on which he was found disabled as of June 24, 2013, based on renal failure. Plaintiff accordingly amended the previous application to seek a closed period of benefits from September 26, 2009, to June 23, 2013. A different ALJ denied the amended application on remand, and plaintiff again seeks judicial review. I again remand.


         Plaintiff argues that the ALJ erred in rejecting the opinion of one of his treating physicians. The opinion of a social security claimant's treating source is entitled to “controlling weight” if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence. Stage v. Colvin, 812 F.3d 1121, 1126 (7th Cir. 2016); 20 C.F.R. § 404.1527(c). An ALJ who does not give controlling weight to the opinion of the claimant's treating physician must offer “good reasons” for declining to do so. Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010). The court will reverse and remand where the ALJ fails to provide a sound explanation. See, e.g., Campbell v. Astrue, 627 F.3d 299, 306-07 (7th Cir. 2010) (reversing where ALJ relied on the absence of significant abnormal findings but read the record selectively in so finding); Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (reversing where ALJ misunderstood the nature of the claimant's impairment); Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003) (“An ALJ can reject an examining physician's opinion only for reasons supported by substantial evidence in the record; a contradictory opinion of a non-examining physician does not, by itself, suffice.”).

         Even if there are sound reasons for refusing to give the treating doctor's assessment controlling weight, the ALJ may not simply reject it; rather, the ALJ must then determine what value the assessment does merit, considering a checklist of factors, including the length, nature, and extent of the treatment relationship; the frequency of examination; the physician's specialty; the types of tests performed; and the consistency and supportability of the physician's opinion. See Campbell, 627 F.3d at 308; Scott, 647 F.3d at 740; 20 C.F.R. § 404.1527(c); see also Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008) (stating that when the treating physician's opinion is not given controlling weight “the checklist comes into play”). “‘In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.'” Hunt v. Astrue, 889 F.Supp.2d 1129, 1143 (E.D. Wis. 2012) (quoting SSR 96-2p).

         In this case, plaintiff's treating neurologist, Dr. Darryl Prince, opined that plaintiff could, during an eight-hour day, sit for four hours, stand for one hour, and walk for one hour. (Tr. at 660.) Dr. Prince further endorsed limitations in plaintiff's ability to repetitively use his feet, to lift and carry more than 20 pounds, and to engage in movements such as bending, squatting, and reaching. (Tr. at 660-61.) Finally, Dr. Prince restricted plaintiff from exposure to heights, temperature changes, and irritants. (Tr. at 662.) Dr. Prince based these limitations on testing revealing a cervical cord lesion and peripheral neuropathy. (Tr. at 662.)

         As the ALJ acknowledged in the first decision, Dr. Prince's conclusion regarding plaintiff's total ability to sit, stand, and walk during an eight hour day “would negate all work.” (Tr. at 26.) However, the ALJ gave this finding little weight because it was not supported by the objective medical evidence, including MRI testing revealing “very mild” cervical findings and “largely unremarkable” lumbar findings (Tr. at 25), and plaintiff's relatively normal motor strength and gait on examination (Tr. at 26). The ALJ instead credited the opinion of a non-examining consultant, who opined that plaintiff could sustain the full range of sedentary work. (Tr. at 26, 595-602.) The ALJ further found plaintiff's claims of disabling symptoms weakened by his activities of daily living, which included attending college and volunteering for the Special Olympics (Tr. at 24), as well as the objective medical evidence (Tr. at 26).

         On the first round of judicial review, the district court noted that the ALJ failed to cite any inconsistent medical evidence; the MRIs in fact showed a severe cervical lesion and degenerative disease in plaintiff's lower back; and plaintiff's normal strength and gait provided no basis for rejecting Dr. Prince's report, as plaintiff's primary problem was pain, not weakness. (Tr. at 935-36.) The court remanded the matter for reconsideration of Dr. Prince's opinion, which would include an accurate assessment of the medical imaging evidence, as described by Drs. Prince, Tylicki and Beykovsky; an explanation as to how plaintiff's activities, including attending college and volunteering for the Special Olympics, were inconsistent with Dr. Prince's limitations; and specific identification of how the other evidence was inconsistent with Dr.

         Prince's assessment. The court further instructed that, if the ALJ declined to given the report controlling weight, the ALJ must consider the checklist factors in § 404.1527(c). (Tr. at 936.)

         On remand, the ALJ stated:

The District Court ordered the undersigned to accurately assess the medical imaging evidence in the file. In February 2010, the claimant had a cervical MRI scan that revealed broad-based central and left paracentral C3-4 disc narrowing, a cavernoma at ¶ 6-7 and mild left neural foraminal narrowing at ¶ 4-5 and C5-6. The District Court criticized the prior Decision as mischaracterizing the report of Dr. Tylicki regarding the claimant's cervical spine MRI scans. Reading his report, dated February 25, 2011, it is difficult to understand what MRI scan Dr. Tylicki is reviewing. It appears to be the same scan noted above . . . . However, it is not clear from the doctor's records. Dr. Tylicki noted that the claimant had a “cord lesion at ¶ 6-C7 that actually crosses the mid line.” That would be consistent with the cavernoma noted in the 2010 MRI scan. A cavernoma is a relatively rare malformation of blood vessels (called an angioma or hemangioma). Such malformations may cause neurological deficits or they may not. Dr. Tylicki did not give any indication that the claimant had any neurological deficits at that time. He simply noted the angioma as being clinically significant. In fact, there is no evidence of neurological abnormalities and an EMG of the claimant's right upper extremity in April 2013 was normal. It is also of note that the MRIs were performed almost one year prior to Dr. Tylicki's review and no treating doctor expressed concern about the results during that one year time period.
The District Court also seemed to criticize the previous Decision regarding Dr. Tylicki's interpretation of the claimant's lumbar MRI (again the date of which is unknown). However, Dr. Tylicki did characterize the MRI as “relatively unremarkable.” It is difficult to understand the District Court's reasoning regarding the analysis of the claimant's degenerative disc disease by the previous Administrative Law Judge. The previous Decision noted the claimant had relatively mild findings but still indicated the claimant would have significant limitations, i.e. being limited to less than a full range of sedentary work.
The same can be said of the analysis of Dr. Prince's opinion in which he opined the claimant could only sit about 4 hours each day and could walk/stand for two hours. The records show almost no objective evidence for such a severe restriction. As noted, Dr. Tylicki stated the claimant's lumbar MRI was “relatively unremarkable.” Additionally, the EMG was normal and no neurological deficits were noted.
In February 2011, Dr. Beykovsky commented on an MRI scan of the claimant's lumbar spine but again neglected to mention the date it was taken. Although he subsequently called the claimant's lumbar MRI “rather impressive” his comments indicate rather mild findings. He stated that there was multilevel facet arthrosis and diffuse canal narrowing from L3 downward. However, he also indicated that there was ...

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