Putric v. Kijakazi

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

RONDA PUTRIC, : Civ. No. 3:23-CV-994

Plaintiff, os

V. : (JUDGE MANNION)

MARTIN O’MALLEY, FILED

Commissioner of Social SCRANTON

s 1 .

Security OCT 2.4 2024

Defendant. : Ber TK

‘DEPUTYCLERK

MEMORANDUM

Ronda Putric filed this action seeking review of a decision by the

Commissioner of Social Security (“Commissioner”) denying Putric’s claim for

social security disability benefits. (Doc. 1). On September 26, 2024,

Magistrate Judge Carlson issued a thorough Report and Recommendation

(the “Report’) (Doc. 25) recommending that this Court vacate the

Commissioner’s decision and remand this matter for further consideration by

the Commissioner. On October 9, 2024, the Commissioner filed objections

to the Report. (Doc. 26).

‘ Martin O’Malley became the Commissioner of Social Security on

December 20, 2023. Accordingly, pursuant to Rule 25(d) of the Federal

Rules of Civil Procedure and 42 U.S.C. §405(g), Martin O’Malley is

substituted for Kilolo Kijakazi as the defendant in this suit.

I. Legal Standard

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F. 3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F. Supp. 2d 496, 499 (M.D.

Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, “satisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation.” Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F. Supp. 2d 465, 469

(2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)

(explaining judges should give some review to every Report and

Recommendation)). Nevertheless, whether timely objections are made or

not, the district court may accept, not accept or modify, in whole or in part,

the findings or recommendations made by the magistrate judge. 28 U.S.C.

§636(b)(1); Local Rule 72.31.

~2-

‘Il. Background .

Since the Report correctly states the procedural and _ factual

background of this case, (Doc..25, pp. 1-15), it will not be repeated herein.

In short, Ronda Putric seeks judicial review of the Commissioner's final

decision finding that she was not entitled to disability benefits. After Putric’s

hearing before an administrative law judge (“ALJ”) on March 8, 2023, the ALJ

gave great credence to the cursory testimony of Dr. Nitin Dhiman, a non-

treating, non-examining physician who, purportedly, reviewed Putric’s

medical documents and opined that that the medical record affirmatively

demonstrated that Putric could meet the physical demands of the workplace.

Dr. Dhiman’s opinion was highly suspect given that the medical record

overwhelmingly supported a finding that Putric was suffering, among other

things, from debilitating chronic migraines that were often disabling. Putric

described the frequency and severity of these migraines, which in

combination with her orthopedic impairments, were confirmed and

corroborated by every medical source who saw and treated her. Yet, Dr.

Dhiman — the testifying non-treating, non-examining physician — only

conceded to the debilitating effects of Putric’s migraines during cross-

-3-

examination.? Specifically, Dr. Dhiman allowed that Putric would “probably”

not be able to work while experiencing a migraine episode but opined that it

would only result in her missing one day of work per month. (Doc. 25, p. 9;

Tr. 45). On this score, there is absolutely no indication how Dr. Dhiman

arrived at this conclusion nor does this opinion reconcile with the actual

clinical record, which described Putric as suffering from one to two migraines

each week and experiencing eight to ten migraine episodes each month. (/d.,

pp. 9-10: Id. 1086-87).

The ALJ issued a decision denying Putric’s claim because, at Step 3

and 4 of the sequential analysis that governs Social Security cases, the ALJ

determined that Putric did not have an impairment or combination of

impairments that met or medically equaled the severity of one of the disability

listing impairments, and concluded that she could return to her past relevant

work as a shipping supervisor. (Doc. 25, pp. 10-11; Tr. 16-17, 22-25). In

reaching this determination, the ALJ was required to evaluate the severity of

all of Putric’s symptoms in combination, including her migraines. However, a

review of the decision discloses inadequacies, inconsistencies, inaccuracies,

and omissions, particularly as it relates to the assessment of the severity of

2 During direct testimony, Dr. Dhiman failed to even identify Putric’s

chronic migraines as a severe impairment, only listing her orthopedic

impairments as significant medical concerns. (Doc 25, p. 9; Tr. 42-43).

-4-

Putric’s migraines and the impact of those migraines on her ability to meet

the physical demands of the workplace. The Report has thoroughly reviewed

and highlighted all the issues found in the ALJ’s decision, along with the

relevant legal precedent. Commissioner objected to such Report on the

grounds that Judge Carlson allegedly failed to apply an applicable regulation

and adhere to the applicable standard of review. This Court disagrees.

lll. Discussion

First, Commissioner cites to 20 C.F.R. §404.1520b(c)(3)(i) to contend

that, in his determination, the ALJ need “not provide any analysis” about how

he considered Putrics pain management’ specialist statement

“recommend[ing] total disability based on [Putric’s] back pain, lumbar

radicular symptoms, psychiatric disease and her chronic migraine

headache.” (Doc. 26, p. 2) (italics in original). Commissioner argues that

such a statement does not “qualify as a ‘medical opinion’ that triggers the

need for specific discussion.” (/d.) Rather, only a statement that “offer[s] a

functional assessment—that is, ‘what [the claimant] can still do despite [her]

impairments and whether [she] ha[s] one or more impairment-related

limitation restrictions’ in work-related abilities” may be discussed. (/d., citing

20 C.F.R. §404.1513(a)(2)). If the specialist's conclusory assessment

regarding Putric’s “total disability,” by itself, was the only evidence Judge

-5-

Carlson relied upon in his assessment of the ALU’s determination, the Court

would have to agree to Commissioner’s argument. Alas, that is not the case.

Commissioner appears to have selected. a single sentence from an

otherwise thorough analysis, robbed it of context and sought to challenge it

in the hope it would somehow rebut the analysis as a whole. Unfortunately,

that argument will not do.

Judge Carlson references Putric’s pain management specialist's

statement as one of multiple statements and findings in Putric’s medical

record establishing her migraine symptoms that the ALJ failed to adequately

evaluate in his determination. Indeed, Judge Carlson, in great detail,

deconstructed the ALJ’s final determination to show how, among other

things, it understated the reported severity and frequency of Putric’s

migraines, failed to account for the medical record, which was replete with

qualifying “medical opinions” pursuant to 20 C.F.R. §404.1513(a)(2), and

gave an unwarranted amount of confidence in the cursory testimony of a

non-treating, non-examining physician who only conceded to the severity of

Putric’s migraine but prevaricated about its frequency. Accordingly, this

objection is without merit.

Second, Commissioner argues that the ALJ’s assessment was

adequate and should be afforded the applicable deferential “substantial

-6-

evidence” standard of review. (Doc. 26, p. 3). Commissioner is correct as to

the applicable legal standard but wrongly appraises the ALJ’s assessment

as meeting that standard. .

Substantial evidence is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion,” Morales v. Apfel, 225

F.3d 310, 316 (3d Cir. 2000), which is “more than a mere scintilla but may

be somewhat less than a preponderance of the evidence.” See, e.g.,

Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). Bearing that in

mind, a court must be wary of treating the determination of substantial

evidence as a “self-executing formula for adjudication.” Kent v. Schweiker,

710 F.2d 110, 114 (3d Cir. 1983). This Court must set aside the

Commissioner's decision if it did not take into account the entire record or

failed to resolve an evidentiary conflict. Gober v. Matthews, 573 F.2d 772,

776 (3d Cir. 1978).

Here, the Commissioner argues that the ALJ’s discussion “passes

muster’ because he “recognized that [Putric] alleged disability, in part, due

to headaches with light sensitivity;” “recognized [Putric’s] treatment for

headaches;” and reasonably relied on Dr. Dhiman’s opinion because he was

“the only doctor to provide a medical opinion with respect to [Putric’s]

headache-related functional limitations.” (Doc. 26, pp. 7-8) (emphasis

7.

added). But Commissioner appears to have missed Judge Carlson's point

that it is such cursory recognitions and excessive reliance on the opinion of

an expert by virtue of title alone, and not his review of the medical record,

that make part of the gravamen of an inadequate assessment As, Judge

Carlson wrote, “more is needed here in terms of symptom evaluation.” (Doc.

25, p. 31). Evidence is not substantial if “it really constitutes not evidence but

mere conclusion,” or if the ALJ “ignores, or fails to resolve a conflict created

by countervailing evidence” as he has done so here. Wallace Vv. Sec’y of

Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent,

710 F.2d at 114). Accordingly, this objection is overruled. .

IV. Conclusion

Based on the foregoing the Report and Recommendation of Judge

Carlson, (Doc. 25) will be ADOPTED IN ITS ENTIRETY. Commissioner’s

objections, (Doc. 26), will be OVERRULED. This case will be REMANDED

to the Commissioner for further consideration. An appropriate order follows.

8 | Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: October 21, 2024 .

33.994-01

-8-