Opinion
CIVIL ACTION No. 17-5039
12-20-2018
CHARLES W. MCCONNELL, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM
Charles McConnell seeks review, pursuant to 42 U.S.C. § 405(g), of an Administrative Law Judge's decision that Mr. McConnell is not disabled under the Social Security Act. On August 29, 2018, United States Magistrate Judge Marilyn Heffley issued her Report and Recommendation that Mr. McConnell's request for review be denied. Mr. McConnell filed timely objections to the Report and Recommendation.
After independent consideration of the Administrative Record, submitted pleadings, Magistrate Judge Heffley's Report and Recommendation, Mr. McConnell's Objections thereto, and the Commissioner's Response to the Objections, the Court adopts in full the Report and Recommendation, as set forth below.
LEGAL STANDARD
The Court reviews de novo "those portions of the Magistrate Judge's Report and Recommendation to which [the claimant] has objected." Hirschfeld v. Apfel, 159 F. Supp. 2d 802, 806 (E.D. Pa. 2001) (citing 28 U.S.C. § 636(b)(1)(C)). The Court "may accept, reject or modify, in whole or in part, the findings and recommendations" made by the Magistrate Judge. Id.
DISCUSSION
Mr. McConnell raises two objections to Magistrate Judge Heffley's Report and Recommendation:
First, Mr. McConnell objects to Magistrate Judge Heffley's determination that the ALJ reasonably weighed the opinion of the treating cardiologist, Dr. Goodkin.
Second, Mr. McConnell objects to Magistrate Judge Heffley's determination that the ALJ reasonably weighed the opinion of the state agency physician, Dr. Balogh.
The Court is unpersuaded by both objections, and will address each in turn.
1. Opinion of Dr. Goodkin
According to Mr. McConnell, Magistrate Judge Heffley overlooked at least two examples of "the ALJ rel[ying] on an unreasonable characterization of the evidence of record" in rejecting Dr. Goodkin's opinion that Mr. McConnell was not capable of even sedentary work. Objections at 2. The Court finds neither example to be persuasive.
First, Mr. McConnell argues that the record reflects that he needs breaks from routine household chores, a fact that that the ALJ (and Magistrate Judge Heffley) rejected but which, according to Mr. McConnell, should have supported Dr. Goodkin's opinion. Mr. McConnell incorrectly argues that Magistrate Judge Heffley suggested that "the ALJ must have implicitly found Plaintiff's description of the breaks he must take while performing his activities of daily living not credible." Objections at 3 (emphasis added). The ALJ explicitly recognized that "[w]hen mowing the lawn, [Mr. McConnell] stops after 15 minutes to rest for 15 minutes," R. at 36, and then determined that, "[a]fter careful consideration of the evidence, . . . the claimant's statements concerning the intensity, persistence and limiting effects of his symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." Id. (emphasis added). The ALJ therefore made clear that he considered Mr. McConnell's purported need for breaks, but gave greater weight to countervailing evidence.
Mr. McConnell further challenges the ALJ's balancing of the evidence by highlighting the ALJ's acknowledgment that Mr. McConnell made relatively consistent "statements" about his claimed need for breaks, including in his disability reports, function reports, and during his testimony at the administrative hearing. Id. But it does not follow that, merely because Mr. McConnell presented evidence that he needed breaks and the ALJ "considered" that evidence, id., the ALJ improperly exercised his discretion in nonetheless discounting Mr. McConnell's statements. The ALJ determined that other evidence, i.e., Mr. McConnell's "noncompliance" with his doctors' proposed medical treatments, "suggest[ed] [that his] actual symptoms and limitations [we]re not as significant as alleged in connection with this application." R. at 36. And Magistrate Judge Heffley did not err by adopting the ALJ's assessment of the evidence. See Report & Recommendation at 12-13 & fn. 5. "The ALJ has wide discretion to weigh the claimant's subjective complaints, and may discount them where they are unsupported by other relevant objective evidence." Miller v. Comm'r of Soc. Sec., 719 F. App'x 130, 134 (3d Cir. 2017) (citations omitted).
Mr. McConnell also asserts that it is "significant that the ALJ did not make an explicit finding about the credibility of [Mr. McConnell's] description of the breaks he needs to take when performing activities of daily living." But in March 2016, the Social Security Administration issued guidance "eliminating the use of the term 'credibility' from its sub-regulatory policy." Soc. Sec. Ruling 16-3p Titles II & Xvi: Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2017 WL 5180304 (S.S.A. Oct. 25, 2017). The purpose of this change was to "clarify that subjective symptom evaluation is not an examination of an individual's character" and instead "instruct [the Administration's] adjudicators to consider all of the evidence in an individual's record when they evaluate the intensity and persistence of symptoms[.]" Id.; see also Hoak v. Berryhill, No. 5:17-CV-01226-ER, 2018 WL 4572704, at *6 (E.D. Pa. July 10, 2018), report and recommendation adopted, No. CV 17-1226, 2018 WL 4566265 (E.D. Pa. Sept. 24, 2018) ("SSR 16-3p eliminated the use of the term 'credibility' in the ALJ's evaluation to 'clarify that subjective symptom evaluation is not an examination of an individual's character.'") (quoting Soc. Sec. Ruling 16-3p). Here, the ALJ considered the evidence and determined that Mr. McConnell's symptoms were not as intense and persistent as he represented.
Second, Mr. McConnell argues that the ALJ incorrectly found (and Magistrate Judge Heffley in turn incorrectly agreed) that (i) Mr. McConnell was able to ride a bicycle without experiencing angina, and (ii) this fact undermined Dr. Goodkin's conclusion that Mr. McConnell was unable to conduct even sedentary work. Mr. McConnell is correct that the record does not support a conclusion that Mr. McConnell was able to ride a bicycle without suffering chest pain. See R. at 293 (Mr. McConnell "gets angina with moderate exertion. Gets it riding his bike."); see also id. at 296, 354, 359 (stating same). Mr. McConnell asserts, therefore, that the ALJ erred by concluding that Dr. Goodkin's notes showed that "[Mr. McConnell] was nearly asymptomatic in terms of cardiac symptoms and that he reported riding a bike and walking for a mile," id. at 37, and Magistrate Judge Heffley was wrong to "downplay[]" that error. Objections at 2.
Although the ALJ's statement that Mr. McConnell "reported riding a bike" could be construed as misleading—given Dr. Goodkin's note that Mr. McConnell experienced angina while riding his bike—the ALJ's decision elsewhere clearly acknowledges Mr. McConnell's limitations in cycling: in his findings of fact and conclusions of law, the ALJ wrote that Mr. McConnell "got angina with moderate exertion, such as riding his bike." R. at 32.
Even accepting as true that the ALJ made an improper finding about Mr. McConnell's cycling, the finding was limited to one particular portion of the ALJ's decision, and Magistrate Judge Heffley neither downplayed nor obviously relied on that finding. Indeed, Mr. McConnell ignores that the Report and Recommendation explicitly acknowledged that "[i]n his treatment records for that examination, Dr. Goodkin noted that [Mr.] McConnell's 'chest discomfort' arose with moderate activity, such as when [Mr.] McConnell was riding his bicycle." Report & Recommendation at 7. And although the Report and Recommendation does quote the ALJ's allegedly incorrect description of Mr. McConnell "riding a bike," see Report & Recommendation at 10-11 (quoting R. at 37), the Report and Recommendation does so in summary, and does not ascribe any particular weight to that portion of the ALJ's decision. Instead, the Report and Recommendation goes on to identify two totally unrelated reasons why Dr. Goodkin's opinion (that Mr. McConnell could not handle even sedentary work) was unsupported by the record:
The ALJ only cited to Mr. McConnell's ability to ride a bicycle in giving partial weight to one specific opinion offered by Dr. Goodkin (that Mr. McConnell suffered from NYHA Class 3 heart failure). See R. at 37. Further, the ALJ did not rely solely on Mr. McConnell's ability to cycle in addressing that particular opinion; the ALJ considered "the record as a whole[.]" Id. The ALJ did not cite Mr. McConnell's cycling in addressing Dr. Goodkin's other opinions, including Dr. Goodkin's opinion that Mr. McConnell was incapable of sedentary work. Id.
(1) Mr. McConnell did not comply with his physicians' medical advice on numerous occasions, and "[n]oncompliance with medical recommendations can provide evidence to discount a claimant's testimony regarding the extent of his or her symptoms[;]" andReport and Recommendation at 11-12 (internal citations omitted).
(2) "Dr. Goodkin's opinion was inconsistent with [Mr.] McConnell's own testimony regarding his activities of daily living, which he testified included helping with the laundry and dishes, shoveling snow, mowing the lawn, . . . helping to get his friend's daughter out to school in the morning. Additionally, [Mr.] McConnell testified at the hearing that he could walk for half a mile and lift eight to 10 pounds."
Mr. McConnell's ability or inability to ride a bicycle is notably absent from the list of activities that Mr. McConnell could perform without difficulty. --------
In other words, even if it was error for the ALJ to discuss Mr. McConnell's ability to ride a bicycle, and even if it was error for Magistrate Judge Heffley to abstain from explicitly disclaiming the ALJ's supposed reliance on Mr. McConnell's ability to ride a bicycle, those errors were harmless because the Report and Recommendation provided ample unrelated bases for rejecting Dr. Goodkin's conclusions. See Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (error in social security case was "'harmless' when, despite the technical correctness of an appellant's legal contention, there is also 'no set of facts' upon which the appellant could recover") (quoting Renchenski v. Williams, 622 F.3d 315, 341 (3d Cir. 2010)); see also Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (in social security cases, remand is not required where "it would not affect the outcome of the case.").
2. Opinion of Dr. Balogh
Mr. McConnell also asserts that it was unreasonable for the ALJ to "elevate" the opinion of state-agency reviewer Dr. Balogh over Mr. McConnell's treating doctors, Dr. Goodkin and Dr. Pinkard. Objections at 3. Mr. McConnell argues that Dr. Balogh did not thoroughly review the record because his opinion "does not even mention Dr. Goodkin's opinion" and it was "unreasonable [for the ALJ] to give more weight" to Dr. Balogh's opinion than the opinions of Doctors Goodkin and Pinkard, both of whom treated Mr. McConnell. Id. Mr. McConnell's criticism is misguided for two reasons.
First, Mr. McConnell misses the point in arguing that Dr. Balogh did not thoroughly review the record because his report does not "mention" Dr. Goodkin's opinion. Dr. Balogh's report references notes and test results from many of Mr. McConnell's doctor visits, including Mr. McConnell's multiple trips to Cardiology Consultants of Philadelphia (including on September 3, 2013 and April 4, 2014), see R. at 96, which is Dr. Goodkin's practice. Id. at 32. Dr. Balogh also received multiple transmissions of medical records from Dr. Goodkin's practice. Id. at 91-92. Regardless of whether Dr. Balogh reviewed Dr. Goodkin's opinion, Dr. Balogh reviewed the records from Mr. McConnell's appointments with Dr. Goodkin, which formed the basis for Dr. Goodkin's opinion. Therefore Dr. Balogh did not review an incomplete version of the record.
Second, the mere fact that a doctor treated Mr. McConnell does not, in and of itself, entitle the opinion of that doctor to greater weight. It is true that, generally, "opinions of a claimant's treating physician are entitled to substantial and at times even controlling weight." Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20 C.F.R. § 404.1527(d)(2)). But it is equally true that an ALJ may "afford a treating physician's opinion more or less weight depending upon the extent to which supporting explanations are provided," Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (citation omitted), and an ALJ may reject a treating physician's opinion on the basis of contradictory or inconsistent evidence. Id. at 430. Here, the ALJ identified, in significant detail, why he was affording little weight to 1) Dr. Pinkard's opinion (because she "relied heavily on [Mr. McConnell's] self-report" rather than her own examination, R. at 37), and 2) Dr. Goodkin's opinions (because his opinions were "not well supported by medically acceptable clinical and laboratory diagnostic techniques, and [were] inconsistent with the other substantial evidence" in the record, id.).
The ALJ appropriately considered Dr. Balogh's opinion based on Dr. Balogh's review of the record, and the ALJ gave Dr. Balogh's opinion appropriate weight relative to the opinions of Dr. Pinkard and Dr. Goodkin, based on the record evidence. It was therefore proper for Magistrate Judge Heffley to adopt the ALJ's treatment of those opinions.
CONCLUSION
For the foregoing reasons, Mr. McConnell's objections to the Report and Recommendation are without merit. The Court will adopt the Report and Recommendation in full. An appropriate order follows.
BY THE COURT:
/s/ Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE