1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVNIA

RICHARD JOSEPH REZNICK, : CASE NO. 4:15-cv-01693-MWB

:

Plaintiff, :

: (Judge Brann)

v. :

:

CAROLYN W. COLVIN, : (Magistrate Judge Cohn)

COMMISSIONER OF

SOCIAL SECURITY :

Defendant. :

ORDER

October 12, 2016

I. Introduction 

Richard Joseph Reznick, hereinafter “Plaintiff,” commenced this action by 

filing a complaint on August 31, 2015, which appealed a final decision by the 

Commissioner of Social Security, hereinafter “Defendant,” denying Plaintiff’s 

application for disability insurance benefits under the Social Security Act, 42 

U.S.C. §§ 401-433, 1382-1383 and Social Security Regulations, 20 C.F.R. 

§§404.1501.1 Magistrate Judge Cohn issued a Report and Recommendation on 

June 3, 2016, finding that the decision of the Administrative Law Judge (ALJ) was 

supported by substantial evidence and recommending that this Court deny 

 

1

ECF No 1.

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Plaintiff’s appeal.2Plaintiff timely objected to the Report and Recommendation on 

June 16, 2016.3 Defendant responded to plaintiff’s objections on July 14, 2016.4

For the reasons that follow, the Court will now adopt Magistrate Judge Cohn’s 

Report and Recommendation. 

II. Standard of Review 

Upon designation, a magistrate judge may “conduct hearings, including 

evidentiary hearings, and ... submit to a judge of the court proposed findings of 

fact and recommendations.”5 Once filed, this Report and Recommendation is 

disseminated to the parties in the case who then have the opportunity to file written 

objections.6 When objections are timely filed, the district court must conduct a de 

novo review of those portions of the report to which objections are made.7. 

Although the standard of review for objections is de novo, the extent of review lies 

within the discretion of the district court, and the court may otherwise rely on the 

recommendations of the magistrate judge to the extent it deems proper.8

 

2

ECF No. 15.

3

ECF No. 16.

4

ECF No. 19.

5

28 U.S.C. 636(b)(1)(B)

6

28 U.S.C. 636(b)(1)

7

28 U.S.C. 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011)

8 Rieder v. Apfel, 115 F. Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz, 447 

U.S. 667, 676 (1980)

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For portions 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.”9 Regardless 

of whether timely objections are made by a party, the district court may accept, not 

accept, or modify, in whole or in part, the findings or recommendations made by 

the magistrate judge.10

The Court has reviewed the entirety of Magistrate Judge Cohn’s Report and 

Recommendation and finds that it contains no clear error. Further, the Court has 

reviewed de novo those portions of the Report and Recommendation that have 

been objected to by the Plaintiff, and finds these objections to be without merit. 

III. Discussion

Plaintiff objects to Magistrate Judge Cohn’s Report and Recommendation on 

three grounds. First, Plaintiff asserts that “appropriate circumstances” did not exist 

for ALJ to attribute greater weight to the opinion of a non-treating physician than 

two treating physicians. Second, Plaintiff asserts that the ALJ did not “credit” the 

opinion of the non-examining source, and therefore failed to attribute significant 

weight to any medical opinion. Third, Plaintiff asserts that ALJ did not properly 

 

9

Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., 

Inc., 702 F.Supp.2d 465, 469 (M.D.Pa.2010)(citing Henderson v. Carlson, 812 F.2d 874, 878 (3d 

Cir. 1987) (explaining that judges should give some review to every report and recommendation)

10 28 U.S.C. § 636(b)(1); Local Rule 72.31

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accommodate Dr. Peterson’s opinion when it allowed Plaintiff to sit and stand 

every sixty minutes. 

A. “Appropriate circumstances” existed such that it was appropriate for ALJ to 

attribute greater weight to Dr. Gryczkco’s opinion than to Dr. Peterson’s and 

Dr. Kowalski’s opinions.

Under the Social Security Regulations, ALJ will generally “give more weight to 

the opinion of a source who has examined [the claimant] than to the opinion of a 

source who has not examined [the claimant].”11 A treating source’s opinion will 

receive “controlling weight” where it is “well-supported by medically acceptable 

clinic and laboratory diagnostic techniques” and is “not inconsistent with the other 

substantial evidence” in the case record.12

Opinions from State agency medical consultants may constitute substantial 

inconsistent evidence, and therefore receive greater weight than the opinions of 

treating or examining sources, in “appropriate circumstances.”13 SSR 96-6 does not 

define “appropriate circumstances,” but provides an example of a situation that 

would constitute an appropriate circumstance: when the opinion of a State agency 

medical consultant is based upon a review of the case record that includes a 

 

11 20 C.F.R. § 404.1527(c)(1).

12 20 C.F.R. § 404.1527.

13 SSR 96-6p, 1996 WL 374180.

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medical report from a specialist, when the report provides more detailed and 

comprehensive information than was available to the treating source.

14

In his objections, Plaintiff asserts that “the Court should reject the R&R” on the 

basis that Magistrate Judge Cohn’s Report and Recommendation misconstrued the 

term “appropriate circumstance” when it referenced the above example using an 

ellipsis.15 In the Report and Recommendation, Magistrate Judge Cohn states the 

following: “SSR 96-6p does not define ‘appropriate circumstances,’ but provides 

an example: when the non-treating, non-examining source was able to review a 

‘complete case record... which provides more detailed and comprehensive than 

what was available to the individual’s treating source.’”

16 In this citation, the 

ellipsis replaced the words “that includes a medical report from a specialist in the 

individual’s particular impairment.” 17

Plaintiff asserts that the Report and Recommendation should be rejected on this 

basis because it resulted in the “most critical part of the sentence” being 

“ostensibly omit[ted].”18 Plaintiff further suggests that this use of punctuation 

renders “the analysis within the R&R [] incomplete.”19 However, Plaintiff’s 

 

14 SSR 96-6P, 1996 WL 374180.

15 ECF No. 16 p. 16.

16 ECF No. 19 p. 13.

17 Id.

18 ECF No. 16 p. 5.

19 Id. p. 6.

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contention is not relevant because Magistrate Judge Cohn did not rely on this 

example as a means to prove that the present case constituted an appropriate 

circumstance, nor did he suggest that Plaintiff’s case fit within this example. 

Instead, the magistrate judge merely noted the example to provide further insight 

as to what may constitute an “appropriate circumstance.” 

Further, Plaintiff declares that, under SSR 96-2p, “the treating source opinion 

must be granted deference.”

20 SSR 96-2p, however, reminds adjudicators that 

when a treating source medical opinion is inconsistent with other substantial 

evidence, this does not necessarily mean that the opinion should be rejected.21

Instead, it only means that the opinion is not entitled to “controlling weight.”22

SSR 96-2p notes that “[t]reating source medical opinions are still entitled to 

deference and must be weighed using all of the factors provided in 20 CFR 

404.1527 and 416.927.”23 In this case, the ALJ weighed the factors in 20 C.F.R. § 

404.1527(c) and found that they supported the non-treating opinion more than the

treating opinions. 

The Court has reviewed the reasoning of the ALJ and its finding that the 

opinion of Dr. Kowalski was entitled to “limited weight,” the opinion of Dr. 

 

20 ECF No. 16 p. 8.

21 SSR 96-2P, 1996 WL 374188.

22 Id.

23 Id.

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Peterson was entitled to “very little weight”, and the opinion of Dr. Gryczkco was 

entitled to “some weight.”24 The Court finds that the ALJ utilized sound reasoning 

in making these determinations. 

Plaintiff next asserts that ALJ’s erroneous finding that Dr. Kowalski’s opinion 

was “equivocal” was not harmless error. The ALJ found that Dr. Kowalski’s 

opinion was “equivocal,” and rejected the opinion for this and other reasons, 

including that it was “not well supported by the evidence.”

25 Magistrate Judge 

Cohn found that the ALJ erred when it found Dr. Kowalski’s opinion equivocal, 

but reasoned that this error was not harmful because ALJ’s remaining rationales 

provided substantial evidence for the ALJ’s decision. Plaintiff argues that the 

Report and Recommendation erred in determining that this error was harmless, 

asserting that only one of the five factors in 20 C.F.R. § 404.1527 weighed in favor 

of Dr. Gryczkco while the other four factors weighed in favor of Dr. Kowalski and 

Dr. Peterson.

Magistrate Judge Cohn, however, noted the “distinction between what an 

adjudicator must consider and what the adjudicator must explain in the disability 

determination or decision.”26 Magistrate Judge Cohn also considered the reasoning 

set forth by the United States Court of Appeals for the Sixth Circuit in Francis v. 

 

24 ECF No. 10 p. 37.

25 ECF No. 10 p 37.

26 SSR 06-3p.

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Comm’r Soc. Sec. Admin. In Francis, the court noted that while ALJ is instructed 

to consider the factors set forth in 20 C.F.R. § 404.1527(c), ALJ’s decision is only 

required to include “‘good reasons ... for the weight... give[n] [to the] treating 

source’s opinion’- not an exhaustive factor-by-factor analysis.”27 Magistrate Judge 

Cohn correctly concluded that the ALJ was entitled to rely on Dr. Gryczcko’s 

opinion, which was “well-reasoned” and “better explained,” after a “careful and 

prudent review of the record as a whole, including the claimant’s hearing 

testimony.”28

B. Magistrate Judge Cohn did not err when it found that the ALJ relied on Dr. 

Gryczkco’s opinion.

Plaintiff next asserts that the Report and Recommendation erred by concluding 

that the ALJ credited the opinion of Dr. Gryczkco. Plaintiff states that the ALJ did 

not credit Dr. Gryczkco’s opinion, and therefore the ALJ failed to explain what 

medical opinion was relied upon in determining Plaintiff’s residual functional 

capacity. Plaintiff points to McKay v. Colvin to support his conclusion that the 

ALJ’s failure to credit any medical opinion requires remand of the case.29

However, McKay is distinguishable from the present case because here, unlike in 

McKay, the ALJ has not substituted its own opinion in place of a medical opinion. 

 

27 Francis v. Comm’r Soc. Sec. Admin, 414 Fed.Appx. 802, 804-05 (6th Cir. 2011).

28 ECF 10 No. 37.

29 McKay v. Colvin, 2015 WL 5124119, at *1 (M.D. Pa. Aug. 13, 2015).

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The McKay court found that ALJ erred when it afforded little weight to multiple 

medical opinions it found inconsistent with “objective evidence of record,” while 

at the same time failing to “give any significant or great weight to any medical 

opinion.”

30 The McKay court cited to Ferguson v. Schweiker for the proposition 

that “‘ALJ is not free to set his own expertise against that of a physician who 

presents competent evidence’ by independently ‘reviewing and interpreting’ the 

medical evidence.”31

In the present case, the ALJ has not independently reviewed and interpreted the 

medical evidence or rejected a medical opinion in order to substitute its own 

opinion. Instead, the ALJ attributed “limited weight” to the medical opinion of Dr. 

Kowalski and “some weight” to the medical opinion of Dr. Gryczkoc when making 

its determination. Further, the ALJ gave “great weight” to Plaintiff’s GAF Score 

insofar as it constituted an opinion by Dr. Rahman regarding Plaintiff’s functional 

limitations.32 Plaintiff asserts that the ALJ erred because it did not “fully accept” or 

“fully rely upon” Dr. Gryczkoc’s opinion. However, McKay only requires that the 

ALJ “give any significant or great weight to any medical opinion.”33 It is 

appropriate to determine that the “some weight” the ALJ afforded to Dr. 

 

30 McKay v. Colvin, 2015 WL 5124119, at *12.

31 Id. at 13.

32 ECF No. 10 p. 37.

33 McKay v. Colvin, 2015 WL 5124119, at *13.

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Gryczkoc’s opinion and the “great weight” afforded to Plaintiff’s GAF score

constitute “significant” weight attributed to a medical opinion.

Plaintiff next argues that Dr. Gryczkoc’s opinion did not constitute substantial 

evidence, and therefore it could not constitute “inconsistent substantial evidence” 

contradicting Dr. Kowalski’s opinion. Plaintiff references Morales v. Apfel for two 

propositions related to this point.

34 First, Plaintiff states that “[a] single piece of 

evidence will not satisfy the substantiality test if the [Commissioner] ignores, or 

fails to resolve, a conflict created by countervailing evidence.”35 However, the ALJ 

did not ignore or fail to resolve the conflict between the medical opinions. Instead, 

the ALJ performed a “careful and prudent review of the record as a whole” and 

found that Dr. Gryczkoc’s opinion was entitled to the most significant weight. 

Likewise, Plaintiff notes that evidence is not substantial “if it is overwhelmed 

by other evidence- particularly certain types of evidence (e.g., that offered by 

treating physicians)-- or if it really constitutes not evidence but mere 

conclusion.”36 Plaintiff fails to note, however, that Dr. Gryczkoc’s opinion was not 

“overwhelmed” by the record or the opinions of Plaintiff’s treating physicians. 

Instead, those opinions were properly entitled to less weight because Dr. 

 

34 See Morales v. Apfel, 225 F. 3d 310, 317-18 (3d Cir. 2000).

35 ECF No. 16 p. 16.

36 ECF No. 16 p. 16.

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Gryczkco’s opinion was better supported, more consistent with record evidence, 

and was based upon a review of the complete record.

In response to Plaintiff’s assertion that “the ALJ assessed a residual functional 

capacity greater than any medical opinion of record,” the Court respectfully directs 

Plaintiff to C.F.R. § 404.1527(d)(2), which notes that while opinions from medical 

sources are considered by the Commissioner, a final decision as to the claimant’s 

residual functional capacity is reserved to the Commissioner.37

C. Magistrate Judge Cohn did not err in finding that the ALJ properly 

accommodated Dr. Peterson’s opinion by providing Plaintiff the opportunity to 

sit and stand at will. 

Plaintiff asserts that Magistrate Judge Cohn erred in finding that Dr. Peterson’s 

opinion was properly accommodated in regards to Plaintiff’s sitting and standing 

limitations. The ALJ stated that Plaintiff “would require the ability to sit or stand 

every 60 minutes in order to change position.” 38 First, Dr. Kowalski and Dr. 

Peterson’s sit-stand limitations were not binding on the ALJ these opinions were 

entitled to little or limited weight. Second, those aspects of Dr. Kowalski’s and Dr. 

Peterson’s opinions that would allow Plaintiff to sit or stand every fifteen to twenty 

minutes are inconsistent with Plaintiff’s own testimony that he is able to sit and 

 

37 20 C.F.R. § 404.1527.

38 ECF No. 10 p. 34.

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stand for up to sixty minutes at a time, the medical evidence of record, and 

Plaintiff’s recreational activities such as fishing and hunting.

Accordingly, it is HEREBY ORDERED:

1. The Report and Recommendation of the magistrate judge is ADOPTED IN 

FULL. ECF No. 15. 

2. The decision of the Commissioner is AFFIRMED.

3. The Clerk is directed to enter final judgment in favor of the Commissioner 

and against the Plaintiff.

4. The Clerk is further directed to close the case file. 

BY THE COURT:

/s Matthew W. Brann 

Matthew W. Brann

United States District Judge

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