Sczepanski v. Saul, 946 F.3d 152 (2d Cir. 2020) Attorney TIMOTHY HILLER, Law Offices of Kenneth Hiller, PLLC
Plaintiff appealed a district court decision upholding a denial of her application for SSI. Specifically, she argued that the ALJ erred because it assumed that her inability to complete a probationary period at the identified jobs was irrelevant to the ALJ’s disability determination. The Court agreed and remanded for a new hearing.
Specifically, during her administrative hearing her representative questioned the vocational expert. The representative asked how much absenteeism was typically tolerated at a sedentary, unskilled, entry-level job, and the expert responded, “[n]o more than two days per month every single month.” The representative also asked how much absenteeism or tardiness was typically tolerated during a probationary period, and the expert responded, “[d]uring the probationary period of 90 to 120 days there is typically no tolerance for absence.” Regarding this latter point, the ALJ interjected to say, “we don’t really look at probationary issues. We just, the job, doing the job.” The ALJ then reiterated that “probationary time doesn’t really make any difference in the determination of disability under our regulations.” And when Plaintiff’s representative responded that “it does go to ability to sustain employment if [Sczepanski] can’t make it through a probationary period,” the ALJ responded:
I actually don’t see that. The question is whether or not they can do a job. If they can’t do it they can’t do it. If they can do it but can’t do it for a continuous period of time, say, 90 days or 180 days then they can’t do it but if they can do the job then probationary period, I don’t see makes any difference.
In the ALJ’s decision, Plaintiff was found to have an RFC which allowed for one absence per month. Notwithstanding these limitations—which mirrored the hypothetical posed to the vocational expert, except with the added limitation that she be able to miss up to one day of work per month—the ALJ found that she was not disabled because there were significant numbers of jobs in the national economy that she could perform. The ALJ did not consider probationary periods.
The Court held that this was error. It observed “no court of appeals has addressed whether the ability to complete a probationary period is relevant to a claimant’s disability status.” Nevertheless, it noted, “[m]ultiple district courts have passed on the question, however, and nearly all have answered it in the affirmative. This widespread agreement makes sense, as a probationary period is generally just the first phase of a job, after an employee has been hired, but before she has attained permanent employee status. The ability to complete a probationary period is thus tantamount to the ability to keep a job, and as multiple circuits have recognized, the ability to keep a job is a necessary prerequisite to the ability to engage in substantial gainful activity.”
The Court noted the ALJ’s “hypothetical to the vocational expert—unlike the ALJ’s ultimate determination of Sczepanski’s residual functional capacity—did not include the key limitation that Sczepanski be able to miss up to one day of work per month.” The Court foiund that the Agency’s argument “impediments to working that do not reflect an inability to perform the functional demands of a job are simply not considered” in disability determinations begged the question as to whether her inability to complete a probationary period rendered her incapable of performing the functional demands of a job. Unlike the Agency’s comparison to criminal history absences were part of Plaintiff’s RFC. The Court further rejected the Agency’s attempt to rely upon legislative history observing that Plaintiff’s argument rested upon her inability to perform work not obtain work as the Agency portrayed it.
The Court remanded for a new hearing.
Stacey v. Comm’r of SSA, 799 F. App’x 7 (2d Cir. 2020) CAROLYN A. KUBITSCHEK, Lansner & Kubitschek
Plaintiff appealed the district court affirmation of a denial of her applications for DIB and SSI. Specifically, she argued that the ALJ erred in declining to give controlling weight to the opinion of her treating psychologist. The Court agreed.
The Court held that the ALJ improperly declined to afford deference to the opinion of the treating psychologist. The Court found the ALJ’s assertion that this opinion was based upon Plaintiff’s self-reported symptoms and not testing was flawed. First, the opinion was presumably formed upon the doctor’s observations. Second, a medical diagnosis will often be informed by the patient’s subjective description of his or her symptoms. This is especially true of mental health impairments. Third, the ALJ’s “newly-minted diagnostic-testing requirement was not applied evenhandedly; the state agency psychologists also did no testing, yet that did not prevent the ALJ from according their opinions “great weight.”
Moreover, the ALJ’s identification of various inconsistencies did not withstand scrutiny. Likewise, while the ALJ noted a few occasions of upbeat mood in the progress notes this was a few isolated instances. The ALJ’s further assertion that Plaintiff can concentrate for prolonged periods of time because he watched television and played video games in no way undermined the opinion. The Court observed watching television is a largely passive activity and Plaintiff only played video games for a half hour a day. Next, the State Agency psychologist opinion cannot provide substantial evidence for the ALJ’s conclusion since they provided no evidence for their conclusion that he could concentrate for two-hour periods. Finally, the Agency’s citation to various normal mental status exams did not support the ALJ’s finding as it would be improper to ignore “the contrary conclusion of the very physicians who made the evaluations.”
The court noted that the vocational expert had testified that an employee who is “off-task” for at least 15% of the workday, so that if the treating opinion was afforded controlling weight Plaintiff would be entitled to an award of benefits. The court reversed and remanded for an award of benefits.
Gough v. Saul, 799 F. App’x 12 (2d Cir. 2020) Attorney MARK A. SCHNEIDER, Law Office of Mark A. Schneider
Plaintiff appealed the district court’s affirmation of the denial of her application for disability insurance benefits. Plaintiff argued the ALJ erred in rejecting the opinion of her treating physician. The Court agreed.
Specifically, the Court found that the ALJ “cherry-picked” evidence from the record to reject the treating opinion. The ALJ further erred in not giving great weight to Plaintiff’s subjective evidence of her symptoms given that objective medical evidence supported her descriptions. While the ALJ is tasked with weighing evidence and resolving conflicts the Court found that here the ALJ did not explain how the evidence conflicted, nor did the ALJ explain how he purported to resolve that conflict. The Court remanded for further proceedings.
Riccobono v. Saul, 796 F. App’x 49 (2d Cir. 2020) Attorney Sarah H. Bohr, Bohr & Harrington, LLC, Atlantic Beach, FL; Sharmine Persaud, Persaud & Zeltmann, Massapequa, N.Y.
Plaintiff appealed the district court’s affirmation of a denial of his application for disability insurance benefits. Specifically, she argued that the ALJ erred in not affording her treating physician controlling weight. The Court agreed.
The court noted that in rejecting the treating physician’s opinion the ALJ substituted her own judgment to interpret the raw medical data against Plaintiff’s testimony and treatment history. The ALJ “must base her conclusion on some medical opinion or otherwise articulate the overwhelmingly compelling reasons for not doing so.” Absent that, the “ALJ had an “affirmative obligation” to “attempt to fill any clear gaps in the administrative record” created by inconsistencies in the medical opinions—for example, by directing the physicians to “supplement [their] findings with additional information.” The Court reversed and remanded for further proceedings.
Hyshaw v. Comm’r of Soc. Sec., 797 F. App’x 671 (2d Cir. 2020) BRANDI SMITH, Law Offices of Kenneth R. Hiller, PLLC
Plaintiff appealed the district court’s affirmation of a denial of her application for disability benefits. She argued the ALJ erred by failing to develop the record with a formal intelligence examination. The Court disagreed. Specifically, it noted that there was intelligence testing from 2007 and that although Plaintiff asserted it was outdated, a psychologist had remarked that it was still valid just three years before she filed her application. This was further supported by the medical opinion which agreed she could perform simple work. The court affirmed the denial of benefits.
Blash v. Comm’r of SSA, No. 19-1674-cv, 2020 U.S. App. LEXIS 15841 (2d Cir. May 18, 2020)
A pro se Plaintiff appealed the district court’s affirmation of the denial of a claimant’s application for disability insurance benefits and SSI. First, the Court found that remand was warranted because the ALJ failed to consider whether older evidence was stale and to seek additional records; the newer evidence of record showed that the claimant’s condition had significantly changed within the relevant period. Second. The Court found that the Appeals Council erred by determining that the new records submitted after the hearing–which included a care plan demonstrating that the claimant continued to require assistance with nearly every activity of daily living and received 12 hours of in-home care a week–combined with the records already submitted, would not have altered the outcome. The new records directly contradicted the older reports of the claimant’s functioning on which the ALJ relied, which had reported that the claimant could do daily activities independently. The judgment of the district court was vacated and the case was remanded to the district court for remand to the Agency with instructions to develop the record.
Grega v. Saul, No. 19-2702-cv, 2020 U.S. App. LEXIS 18280 (2d Cir. June 8, 2020) Attorney AMY C. CHAMBERS, Law Offices of Kenneth Hiller, PLLC
Plaintiff appealed from a judgment of the district court upholding a denial of his applications for disability insurance benefits and supplemental security income. Specifically, he argued that the ALJ erred in not affording the opinions of his treating physicians controlling weight ignoring supporting evidence. The Court disagreed. The Court noted that none of the evidence that Plaintiff argued was improperly excluded was significantly more favorable to him than the evidence that the ALJ considered. To the contrary, the purportedly excluded evidence was consistent with the ALJ’s major finding. Moreover, none of the treating providers qualifies as an “acceptable medical source” to whom the treating physician rule would apply. The Court affirmed the denial of benefits.
Ferraro v. Saul, 806 F. App’x 13 (2d Cir. 2020)
A pro se Plaintiff appealed the district court’s affirmation of a denial of his application for disability insurance benefits and supplemental security income. Plaintiff argued that the LAJ failed to follow the treating-physician rule in evaluating the opinions of his treating psychiatrist, and his treating psychologist. He also argued that the ALJ’s RFC determination failed to incorporate stress-related limitations contained in the opinion of the consultative examiner. The Court agreed.
The Court found that the ALJ did not apply the Burgess factors or otherwise provide “good reasons” for assigning reduced weight to the opinions of his treating doctors. The ALJ did not “explicitly consider . . . the frequency, length, nature, and extent of treatment.” The ALJ offered conclusory reasons for rejecting these opinions. To the extent the ALJ rejected these opinion because the conflicted with the opinion of the consultative examiner, the Court noted, “[w]e have frequently cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination,” and we have noted that “[t]his concern is even more pronounced in the context of mental illness where . . . a one-time snapshot of a claimant’s status may not be indicative of her longitudinal mental health.” The Court did not reach Plaintiff’s second assignment of error. The Court reversed and remanded for further proceedings.
Morris v. Berryhill, 721 Fed. App’x 25 (2d. Cir. 2018)
Plaintiff sought judicial review of decision of Commissioner of Social Security denying her application for supplemental security income. The district court affirmed. Plaintiff appealed arguing that the ALJ erred in not developing the record given her pro se status and in discounting the opinion of her treating physician. Specifically, Plaintiff argued that the record was deficient because the ALJ discounted the opinion of her treating physician and that gaps remained in the administrative record, in particular, missing treatment notes from her treating doctor. The court rejected her argument.
The court held that Plaintiff’s speculation regarding missing records did not constitute evidence. Her treating physician had been contacted by Social Security and did provide records available. Plaintiff also submitted records from her physician at the administrative hearing. The court observed, “[t]he duty to recontact arises only if the ALJ lacks sufficient evidence in the record to evaluate the doctor’s findings, not when the treating physician’s opinion is inconsistent with her own prior opinions and the rest of the record. See Guillen v. Berryhill, 697 F. App’x 107, 108 (2d Cir. 2017)(summary order) see also Rebull v. Massanari, 240 F. Supp. 2d 265, 272 (S.D.N.Y. 2002).” Despite Plaintiff’s speculation that the missing records would bolster the opinion of the treating physician, the court found that substantial evidence supported the ALJs decision to reject her treating physician’s opinion. The court noted the ALJ had contrasted the opinion with a prior opinion and found no explanation for the conflict between the opinions. The court also found that the ALJ had a comprehensive record from the treating physician to make this determination. The court distinguished its holding here from a prior decision in Lopez v. Comm’r of Soc. Sec. 622 F. App’x 59 (2d Cir. 2015) where it held the omission of even one treatment source for a pro se claimant requires remand. The court noted that in Lopez the missing treatment note involved a hospitalization well here any potential missing records were likely to be routine progress notes. The court affirmed the district court’s judgment.
Janes v. Berryhill, 710 Fed. App’x 33 (2d. Cir. 2018)
Plaintiff applied for disability insurance benefits and supplemental security income alleging disability on the basis of multiple sclerosis and depression. After an ALJ denial, Plaintiff appealed to the district court which affirmed the ALJ decision. Plaintiff appealed arguing that: (1) the ALJ failed to apply the treating physician rule and therefore the RFC was not based on substantial evidence and; (2) that ALJ failed to find a significant number of jobs exists in the national economy Plaintiff could perform.
The court rejected these arguments. First, the court noted that the ALJ had adopted the majority of the treating physician’s opinion and only rejected the doctor’s opinion that Plaintiff was limited in his ability to bend and climb stairs. The court held the ALJ provided good reasons for rejecting bending and climbing limitations observing that Plaintiff indicated he was able to go up and down stairs without any problem. Further, as stated by the ALJ, there was no suggestion in Plaintiff’s medical records that he had limitations for bending. In any event, the court noted that the step five jobs relied on by the ALJ required neither bending or climbing and so any error would be harmless. Despite Plaintiff’s argument that the ALJ had failed to address all of the factors outlined in 20 C.F.R. §§ 404.1527(c) and 416.927(c), the court found the ALJs adherence the regulations was clear as he had recognized his status as a treating physician and specialist and thoroughly summarizing his treatment notes. While Plaintiff argued that the treating physician opinion was the only opinion in the record, the court noted that the ALJ had actually adopted most of the opinion, rejecting only those parts which were found to be inconsistent with the evidence. Therefore, the ALJ formulated his RFC based on the doctor’s statement, as well as objective evidence in the record, and Plaintiff’s testimony. While Plaintiff argued that the ALJ had a duty to recontact the treating physician to clarify what the opinion meant by moderate limitations since the opinion itself did not define that term, the court held that there was no question from the record that Plaintiff was able to perform the sitting requirements of sedentary work. The treating physician’s opinion in addition to Plaintiff’s testimony established that fact and therefore the ALJ was under no obligation to recontact the treating physician for clarification. See Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996).
Turning to Plaintiff’s next argument, the court held that while the ALJ had noted a total of 3,338 step five jobs which “may not be a significant number”, this was a typo as the vocational expert had testified to 13,338 step five jobs. The court affirmed the district court’s judgment.
Smith v. Commissioner of Social Security Administration, 731 Fed. App’x 28 (2d Cir. 2018)
A pro se claimant alleged disability based on depression, anxiety, bipolar disorder, and neck and back pain was denied disability insurance benefits and supplemental security income after administrative law judge determined her substance use disorder was a contributing factor material to determination that she was disabled and therefore she was not disabled. The district court affirmed.
Plaintiff appealed arguing that the ALJ erred in finding her substance abuse material and affording her treating physician’s opinion little weight. The court rejected these arguments finding that substantial evidence supported the ALJ’s determination that she was not disabled because her substance use was a contributing factor material to the determination. It noted the ALJ had properly concluded that during her periods of sobriety Plaintiff’s psychiatric condition improved. It noted, “[t]he claimant bears the burden of proving that her drug addiction is not a material factor. Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123-25 (2d Cir. 2012). Next, the court found that the ALJ properly afforded little weight to the opinion of the treating physician because it reflected only subjective complaints and contain no objective evidence of any physical or psychiatric abnormalities to support the extent of the limitations opined. Further, the court noted the ALJ considered that the treating physician had only seen her on four occasions. The court affirmed the district court’s judgment.
Anselm v. Commissioner of Social Security, 737 Fed. App’x 552 (2d Cir. 2018).
Plaintiff applied for disability insurance benefits on the basis of cardiovascular problems since quadruple bypass surgery in 2007. After successive ALJ decisions were vacated by the Appeals Council, Plaintiff had a final ALJ hearing in November 2015 where a medical expert testified. The ALJ denied his claim and Plaintiff appealed to district court. The district court affirmed the ALJs denial.
On appeal, Plaintiff argued that the ALJ improperly discounted the opinions of his treating physicians and that the ALJ erred in relying upon the testimony of vocational expert to sustain the number of jobs in the national economy. The court rejected these arguments. First, the court found that the ALJ properly compared the treating physician opinions to their own treatment notes. The court observed that the ALJ had considered consistent unremarkable cardiac examinations and functional capacity evaluations which were considered average for his age. Moreover, the court found the ALJ properly weighed the other opinions in the record, including expert testimony, in conjunction with the treating physician opinions and substantial evidence supported the ALJs resolution of the conflicting evidence. It stated, “[W]e defer to the Commissioner’s resolution of conflicting evidence,” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012), and reject the ALJ’s findings “only if a reasonable factfinder would have to conclude otherwise,” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (emphasis in original). Finally, the court found no merit Plaintiff’s argument that the vocational expert’s testimony was defective because it considered workplace accommodations. The court noted that the vocational expert’s testimony which included accommodations was in response to a hypothetical which did not match the ALJs RFC finding. When asked about work corresponding to the RFC the expert testified that appropriate jobs existed without accommodations. The court affirmed the district court’s judgment.
Smith v. Berryhill, 740 Fed. App’x 721 (2d Cir. 2018).
Plaintiff, applied for disability insurance and supplemental security income on the basis of obesity, fibromyalgia, carpal tunnel syndrome, sleep apnea, bipolarity, depression, and back pain. He brought action seeking judicial review of decision of the ALJ denying his applications for benefits. The district court affirmed.
On appeal, Plaintiff argued that: (1) the ALJ improperly discounted the uncontradicted opinions of his treating physicians; (2) the ALJ ignored evidence that his depressive psychiatric state precluded low stress work due to the opinion of his treating sources, including a social worker; and (3) the testimony of vocational expert not support the ALJs conclusion that jobs exist in significant numbers in the national economy.
The court rejected these arguments. First, the court found the opinions of the treating physician’s “not supported by clinical and diagnostic findings in the record and that their conclusions regarding [Plaintiff’s] lack of focus and absenteeism lacked support in their own treatment notes and examination records.” The court also noted that the opinions were, by turn, outside specialty, accompanied by significant gaps in the record, and internally inconsistent. The court also found that other substantial evidence supported the ALJs RFC finding, including the opinions of other treating physicians and numerous consulting positions. While Plaintiff contended that no other physician opinions had offered an opinion as to his ability to stay on task and maintain attendance, the court found that the ALJ was not required to identify evidence explicitly rebutting the opinions on this matter since the ALJ deemed aspects of their opinions critically flawed and consistent with other substantial evidence.
Next, the court found that the treatment records relied upon by the ALJ to formulate Plaintiff’s mental RFC was supported by substantial evidence. Treatment records from multiple providers supported a finding that he can perform “simple work. Further, the court noted that in finding Plaintiff’s mental impairments severe at Step 2, he “measured his RFC accordingly.” Lastly, the court found that Plaintiff’s challenge to the vocational expert’s testimony rested upon limitations properly discounted by the ALJ. The court affirmed the district court’s judgment.
Adelman v. Berryhill, 742 Fed. App’x 556 (2d Cir. 2018).
Plaintiff, a pro se claimant, brought action for review of decision of the Commissioner of Social Security which terminated his childhood disability benefits due to permanent intellectual disability based on his alleged ability to engage in substantial gainful work and required repayment of alleged overpayments. The district court denied the Commissioner’s motion for judgment on the pleadings and granted in part Plaintiff’s motion for judgment on the pleadings. The district court found that although Plaintiff had earned enough at his job to meet the salary threshold for SGA, his work had been performed under “special conditions,” in that he was able to perform his work only with the assistance of a job coach and other accommodations. Because the Commissioner had failed to demonstrate that working with such accommodations showed that he had the ability to perform SGA the court held that the Appeals Council lacked substantial evidence to support its finding that he was not entitled to retain the disability benefits he received between February 2002 and March 2003. Plaintiff had also argued that he remained entitled to receive benefits because he remained disabled and had never engaged in disqualifying SGA. The district court did not address this request. After Plaintiff appealed this issue to Circuit court, the Commissioner moved to alter the decision requesting remand so that the agency could determine whether he was entitled to benefits. The district court denied the motion, holding that remand was unnecessary because the court had limited its ruling and Plaintiff would need to submit a new application including evidence that his continued employment did not constitute SGA in order to demonstrate his entitlement to receive disability benefits going forward.
Specifically, on appeal, neither party challenged the district court’s ruling that Plaintiff did not owe the Commissioner for overpayments, because he was not wrongfully paid benefits between February 2002 and March 2003. Plaintiff however, argued that the ruling vacating the Appeal Council’s overpayment decision as invalid should also carry additional consequences for the SSA: arguing that, because the Commissioner bears the burden in a termination proceeding, the district court should also have ordered that the Commissioner pay back disability benefits from April 2003 onwards and reinstate his disability benefits going forward until such time as the Commissioner provides a valid reason why his entitlement should end. The Commissioner contended that the court lacked subject matter jurisdiction over this appeal to the extent that it concerns post-March 2003 disability benefits because Plaintiff had not administratively exhausted his claims for these benefits. It further argued that, even if the matter was remanded to the Agency for reinstatement, it would be Plaintiff burden to reestablish his entitlement to benefits during the contested period and going forward. The court rejected the Commissioner’s arguments on both counts.
First, the court found that Plaintiff adequately presented his request for retroactive benefits and reinstatement to the Agency. The Supreme Court in in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), made clear that this element may be satisfied by something less than a formal application to the agency for the relief sought before the courts. The court found Plaintiff had done more than that in this case, repeatedly arguing he remained entitled to benefits. Next, the court found “by (belatedly) conceding that Plaintiff is not required to return the benefits he received between February 2002 and March 2003, the Commissioner effectively conceded that he was entitled to receive benefits during that time. It follows that there is currently no valid decision explaining why his entitlement to benefits should have ended in or before March 2003.” Under the facts of this case, the court reinstated benefits. The court noted that in “City of New York v. Heckler, 742 F.2d 729 (2d Cir. 1984), a class of plaintiffs alleged that the SSA had terminated the benefits of mentally ill claimants by making procedurally defective determinations regarding their residual functional capacity. We affirmed the district court’s interim reinstatement order, which “ha[d] the effect of awarding interim benefits to terminated class members until such time as the SSA makes a procedurally correct determination that they are no longer eligible for disability benefits.” Id. at 740. We reasoned that the interim reinstatement order simply returned the wrongfully terminated claimants to their prior status by reimposing the terms of the only valid “final decision” still on the books — namely, the one that had granted the claimants entitlement to benefits in the first instance. We explained that, “[o]nce the District Court properly invalidated the Secretary’s termination decisions because of the acknowledged procedural illegality, the Court was clearly entitled to reinstate the earlier favorable final decisions pending lawful redeterminations of each claimant’s continuing eligibility.” Id.”
The court noted, “[h]is family argued throughout a decade of agency proceedings that [his] work in a specialized setting with substantial accommodations did not demonstrate an ability to perform SGA, and although that position was ultimately vindicated by the district court, the SSA resisted that outcome at every turn. Assuming [he] could have filed new applications for benefits while his lengthy proceedings were pending, each of those applications presumably would have been premised on the same argument and would have been met with the same intransigence. We see no benefit in forcing [him], a permanently intellectually disabled person, to now undergo the burden and expense of this Sisyphean process once again simply because the agency managed to ignore his meritorious argument for the first ten years during which he made it.”
Finally, the court found that because the SSA has not validly determined that Plaintiff has ever engaged in disqualifying SGA, he does not have a “reentitlement” claim and that the burden is upon the Agency. De Leon v. Sec’y of Health & Human Servs., 734 F.2d 930, 936 (2d Cir. 1984) (quoting 42 U.S.C. § 425(a) for the proposition that “[t]he Secretary is authorized to terminate a claimant’s disability benefits whenever she obtains evidence that a claimant’s disability has ‘ceased'”. The court vacated and remanded to resolve the separate question whether Plaintiff’s work at constituted SGA after March 2003.
Messina v. Comm’r of SSA, No. 17-1598-cv, 2018 U.S. App. LEXIS 25123 (2d Cir. Sep. 5, 2018)
Pro se claimant applied for disability insurance benefits seeking benefits for a period between May 10, 2008 and December 31, 2008, the date he was last insured, due to injuries sustained in both an automobile and motorcycle accident. An ALJ denied his claim and the district court affirmed.
Upon appeal, Plaintiff argued that the ALJ did not provide good reasons for failing to give controlling weight to treating orthopedic surgeon’s opinion that Plaintiff could not sit for more than three hours during work day. The court agreed. The court found that the ALJs one paragraph discussion of the opinion did not provide good reasons for failing to give the opinion controlling weight. The court noted the ALJ had reasoned that the treating physician opined that Plaintiff could occasionally lift 20 pounds and did not use a cane as discrediting his sitting limitations. The court found this provided no basis to reject the unrelated sitting limitations. The court also found other evidence in the record supported this limitation, such the Plaintiff’s prescribed opioid pain medication and another doctor’s recommendation that Plaintiff avoid sitting for prolonged periods of time. To the extent, that the ALJ had a question about this limitation he had an affirmative duty to recontact and seek additional information. The court vacated and remanded for proper application of the treating physician rule.
Lockwood v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS 2104, __ F.3d __ (2d Cir. Jan. 23, 2019)
Plaintiff filed a claim for disability insurance benefits alleging disability due to neck pain, shoulder pain, and carpal tunnel syndrome. The ALJ limited him to light exertion work with no overhead reaching and denied benefits at step 5 of the sequential evaluation, which was affirmed by the district court.
On appeal, Plaintiff first argued that the ALJ erred in failing to resolve the apparent conflict between the vocational expert’s (VE) testimony and the Dictionary of Occupational Titles (DOT), as the three step 5 jobs involved occasional or frequent “reaching” yet he was limited to “no overhead reaching.” Plaintiff argued the ALJ violated the requirements of SSR 00-4p by relying on the VE’s testimony without addressing the apparent conflict. The court agreed, citing Pearson v. Colvin, 810 F.3d 204, 209 (4th Cir. 2015), for the proposition that SSR 00-4p “mandates that whenever the Commissioner intends to ‘rely on [a] vocational expert’s testimony,’ she must explain and inquire into all those areas ‘where the expert’s testimony seems to. . . conflict with the [DOT].” “In other words, the Ruling requires the Commissioner to ‘obtain a reasonable explanation’ for any ‘apparent’ – even if non-obvious – conflict between the [DOT] and a vocational expert’s testimony. (citing SSR 00-4p).” After noting that “reaching” includes overhead reaching, the court found that “[t]estimony that a claimant with overhead reaching limitations is capable of performing a job that the [DOT] describes as requiring ‘reaching’, then, creates at least an apparent conflict that triggers the Commissioner’s duty to elicit an explanation that would justify crediting the testimony [of the VE].”
The court rejected the Commissioner’s argument that a job requiring “reaching” does not necessarily establish that it requires overhead reaching because “while ‘this Court could guess’ what the three jobs” required, “teasing out such details is precisely why the Commissioner bears an ‘affirmative responsibility’ to ask about ‘any possible conflict between [VE] evidence and information provided in the [DOT].’ SSR 00-4p (emphasis added). Absent such an inquiry, the Commissioner lacks a substantial basis for concluding that no such conflict in fact exist.” See Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1366 (11th Cir. 2018) (“We take the word ‘apparent’ [as used in the Ruling] to mean ‘seeming real or true, but not necessarily so.'” (quoting Pearson, 810 F.3d at 209)).
The court rejected the Commissioner’s second argument that the DOT”s narrative descriptions of the three jobs at issue contained no express reference to overhead reaching as an “invit[ation] to disregard the apparent conflict between [the VE’s] testimony and the physical requirements enumerated in the DOT’s occupational descriptions”, which the court refused to do. The court noted that the Commissioner bore the burden of showing that Plaintiff was capable of performing the jobs, which means that “[i]f the Commissioner wished to rely on [the VE’s] testimony to carry that burden, [SSR 00-4p] makes clear that she was obliged to identify and resolve the apparent conflict between that testimony and the [DOT], even if there is a chance that, upon inquiry, no actual conflict would have emerged.”
The court rejected the Commissioner’s third argument that the ALJ carried out her duty by asking the VE whether “this opinion ‘was consistent with the [DOT]”. The court found that the Commissioner’s duty “is not fulfilled simply by taking the [VE] at his word that his testimony comports with the [DOT] when the record reveals an apparent conflict”, citing Washington, 906 F.3d at 1362, but rather SSR 00-4p “places the onus on the Commissioner, acting through her ALJs, to affirmatively ‘[i]dentify’ any conflicts. Allowing the Commissioner to fulfill this obligation through ‘catch-all question[s]’ like the one the ALJ posed during [Plaintiff’s] hearing would essentially shunt the Commissioner’s ‘duty to identify, explain and resolve’ apparent conflicts onto the testifying expert. (citation omitted). Particularly in light of ‘[t]he inquisitorial nature of disability hearings’ – in which claimants often appear pro se – we agree with the Eleventh Circuit that [SSR 00-4p] must be read to ‘impose an independent, affirmative obligation on the part of the ALJ to undertake a meaningful investigatory effort to uncover apparent conflicts, beyond merely asking the [VE] if there is one.’” See again Washington, 906 F.3d at 1364.
The court found that the ALJ “failed to reconcile [the VE’s] testimony that a person with an overhead reaching limitation can perform the three jobs at issue here with the [DOT’s] indication that all three jobs require ‘reaching’”, and therefore concluded that the VE’s testimony cannot represent substantial evidence to support the ALJ’s step 5 denial. The court did not address the other issues raised on appeal. Reversed and remanded.
Byrne v. Berryhill, 2019 U.S. App. LEXIS 3915, __ Fed. Appx. __ (2d Cir. Fed. 8, 2019)
Plaintiff applied for disability insurance benefits alleging disability due to hip, knee, shoulder and back injuries along with sinusitis and GERD. Plaintiff sought judicial review of decision of Commissioner of Social Security denying his claim; the denial was affirmed by the district court. On appeal, Plaintiff argued the ALJ violated the treating physician rule by assigning “less weight” to four opinions provided by three separate treating physicians. The ALJ rejected two opinions from one physician as (1) “unsupported by the diagnostic testing”; (2) inconsistent with treatment notes that physical therapy and home exercises had been helpful; and (3) “the ultimate issue of inability to work is a decision reserved to the Commissioner.” The ALJ rejected the other two physicians’ opinions as “unsupported by the diagnostic testing” and “the ultimate issue of inability to work is a decision reserved to the Commissioner.”
The court found that “[t]he ALJ’s conclusory reasons for declining to assign ‘controlling weight’ and instead assigning ‘less weight’ to four opinions from three treating sources falls well short of satisfying the requirements of 20 C.F.R. § 404.1527.” In terms of the first physician’s opinions, the court observed that he “noted that his findings were based in part on a series of MRIs” and “further noted various MRIs, x-rays, and other diagnostic tools utilized in the course of treatment to evaluate [the plaintiff’s] various orthopedic injuries.” The court found that “[t]he ALJ failed to explain why the various diagnostic tests cited in both opinions were insufficient to support [the physician’s] conclusions.” Moreover, the court found that “there is no apparent contradiction between the limitations described in [the physician’s] report and the fact that physical therapy and home exercise had been “helpful.” As a result, the court concluded that “the ALJ’s conclusory reasons for rejecting the opinions of [the treating physician] do not provide a basis to decline to assign [his] opinions controlling weight.” In addition, the ALJ “did not appear to consider the statutory factors and provide ‘good reasons’ for assigning ‘less weight’ to each of these opinions.” Vacated and remanded.