Author(s):  Stephanie Scalzo, Buffalo Law School Intern

The May 2009 edition of the Disability Law News featured a trilogy of recent decisions from the Second Circuit.  (The newsletter is available at the recently launched new and improved website of the Empire Justice Center at www.empirejustice.org.)  In all three of those decisions, the Court of Appeals upheld unfavorable decisions by the Commissioner.  In the intervening months, the Court has issued a number of additional decisions, three of which are summarized here and reach results more favorable to claimants.

In Moran v. Astrue, 569 F.3d 108 (2d Cir. 2009), the Court of Appeals vacated a decision of Magistrate Bianchini of the Northern District of New York affirming a denial by the Commissioner of two of Mr. Moran’s prior claims.  Claimant Moran, who has been suffering from anxiety, depression, and arthritis, among other conditions, for many years, first applied for Social Security benefits in 1980.  His claim was denied in 1980, and again in 1986 and 1987. Moran applied a fourth time in March 1991.  After an initial denial, the Commissioner found that Moran had been disabled as of March 12, 1991.  He has been receiving benefits since then.

His earlier 1980 and 1987 applications, however, were subsequently reopened under the provisions of two different class actions: Dixon v. Shalala, 54 F.3d 1019, 1021 (2d Cir. 1995), which challenged the Commissioner’s application of the “severity” step of the Sequential Evaluation; and Stieberger v. Sullivan, 792 F.Supp. 1376, modified, 801 F.Supp 1079 (S.D.N.Y. 1992), challenging the Commissioner’s policy of non-acquiescence in Circuit case law. (See www.empirejustice.org for summaries of these and other class actions.)

Following Dixon and Stieberger reviews in 2001, Moran was informed that both decisions had been reaffirmed.  Moran then requested a hearing before an ALJ to challenge both decisions.  After a twenty-four minute hearing at which Moran appeared pro se, the ALJ upheld the Commissioner’s decision.  Moran appealed to District Court, which granted judgment to the Commissioner. Moran then appealed to the Second Circuit.

The Court found that the ALJ had failed to assist the plaintiff in developing a record to support his application.  This is evidenced by the fact that the transcript of Moran’s hearing was less than thirteen pages long.  Furthermore, the ALJ had failed in exploring the type of work Moran did in the 1980s, which is information directly related to the question of whether Moran was disabled at that time.  Finally, the ALJ failed in following up on other pertinent issues related to Moran’s claim.  The Second Circuit found that under the particular circumstances of this case, “the ALJ’s conduct [was] especially problematic” since it had already been determined in the context of his 1991 application that Moran was “conclusively and unquestionably disabled with a constellation of debilitating and degenerative musculoskeletal ailments for more than ten years prior to the hearing at issue.”

The Court also criticized the ALJ for relying on a 1988 report by a physician concluding Moran could occasionally lift up to twenty pounds and bend, squat, and crawl.  The Second Circuit asserted that the ALJ should have directly asked Moran about his physical limitations and, if Moran’s testimony contradicted the physician’s report, then the ALJ could have properly credited the report and discounted Moran’s testimony.  Without such testimony, especially where the ALJ had found Moran credible “for the most part,” the ALJ was unable to balance it against the physician’s report.

Finding that the ALJ had inadequately developed claimant’s record by means of a brief and limited hearing where the ALJ had neither thoroughly examined claimant’s work history nor properly qualified reports against claimant’s testimony, the Second Circuit vacated and remanded for further proceedings consistent with its opinion.  The Court lamented remanding a case that was already thirty years old, but held that the remand was based on the ALJ’s failure to develop the record, rather than because the ALJ’s decision was not supported by substantial evidence.

Of note is the Court’s reliance on and reaffirmation of Cruz v. Sullivan, 912 F.2d 8 (2d Cir. 1990), which mandates that an ALJ affirmatively assist a pro se claimant in developing a record before adjudicating the merits of an application.  The Court emphasized that the ALJ’s duties are “heightened” where a claimant such as Moran has waived his right to counsel.  Ironically, the Court also cites its recent decision in Lamay v. Comm’r of Soc. Sec., 562 F.3d 503 (2d Cir. 2009) for this proposition.  In Lamay, one of the trilogy of cases referred to above, the Court denied the claim of a pro se claimant, finding that the plaintiff had knowingly waived her right to counsel. Plaintiff in Lamay has sought a rehearing en banc before the Court of Appeals.

The remaining two cases of last month’s trilogy were both summary orders and not selected for publication in the Federal Reporter but are available on Westlaw.  Advocates may recall that Federal Rule of Appellate Procedure 32.1 was amended to prohibit Courts of Appeals from restricting the citation of such “unpublished” decisions. See the May 2006 edition of the Disability Law News. Their precedential value may, however, be more limited.

In Brickhouse v. Astrue, 2009 WL 1758812 (2d Cir. June 23, 2009), the Second Circuit reaffirmed its treating physician rule yet again.  It held that “the ALJ violated the treating physician rule,” “erred in privileging the evidence given by the nonphysician consultant over that provided by Drs. Kohut and Bieber,” as well as “erred in his weighing of the evidence as a whole.”

Although the ALJ noted that claimant’s treating physicians determined that she was “unable to perform a full range of sedentary work” and “totally disabled,” the ALJ discounted these findings since the ALJ believed they contradicted other evidence in the record and had insufficient objective medical evidence to support them.  Of note is the fact that eight different physicians, for varying reasons and to varying degrees, had concluded that Brickhouse had limitations and suffered from debilitating pain.  Drs. Kohut and Bieber, however, had the most extensive relationships with her and offered opinions that most strongly supported her claim.

The Second Circuit stated, “The ALJ…found conflicts and weaknesses where none existed.”  Further, the ALJ followed the findings of a state disability adjudicator, “who was not a physician, who never saw the petitioner, and who appears to have relied on a report written by Dr. Seo, a physician hired by the Government who examined Brickhouse just once.  This was error.”  In actuality, the opinions of Drs. Kohut and Bieber were supported by various medical tests and, given the consistency with the six other doctors’ opinions, should have been given the proper weight in the ALJ’s decision.  The Second Circuit vacated the judgment of Judge Townes of the Eastern District of New York, and remanded the case in order to determine whether there is other work that Brickhouse can perform.

In Giddings v. Astrue, 2009 WL 1813741 (2d Cir. June 26, 2009), the Court of Appeals vacated and remanded a decision by Magistrate Pebbles of the Northern District of New York, holding that ALJ Zolezzi had erred in concluding that claimant Giddings could “perform work at a light level of exertion” without sufficient evidence to support this residual functional capacity (RFC) finding.

The Court found that ALJ Zolezzi’s RFC determination is contradicted by both a previous ALJ’s determination and a doctor who had examined Giddings. ALJ Gibbons previously determined that Giddings was limited to sedentary work.  ALJ Zolezzi erred in finding an RFC greater than that previously determined without even referencing the earlier one. His finding was also inconsistent with the findings of the one-time consultative physician Hargraves.  Although not an opinion entitled to the deference of that of treating physician, the Court noted that ALJ Zolezzi failed to refer to any other medical opinion that contradicted that of the consultative.

The Second Circuit held that “ALJ Zolezzi failed to provide the compelling critique needed to overcome the uncontradicted medical opinion of Dr. Hargraves.”  The other medical reports that ALJ Zolezzi referenced did not deal specifically with Giddings’s exertional limitations, while Dr. Hargraves’s opinion actually did have medical evidence supporting his findings, including an MRI indicating degenerative disc disease.  The Court also found that, “[t]hese portions of Giddings’s testimony – as to her inability to work continuously, even while changing positions, and her need to lie down to relieve pain – are consistent with, if not supportive of, Dr. Hargraves’s assessment of Giddings’s exertional limitations.”

The Court acknowledged that Giddings’s application had already been pending nine years, but held that there was not a sufficient basis to reverse the ALJ’s decision and award benefits.  The Court also ducked the question raised by the parties as to the retroactive effect of the Commissioner’s post-Curry regulations.  See Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000) and 20 C.F.R. §404.1520 regarding the shifting of the burden of proof at Step five of the Sequential evaluation.  The Court held that even if Giddings had retained the burden of proof as to RFC at Step five, the ALJ’s determination was not supported by substantial evidence.

Thanks to Buffalo Law School summer intern Stephanie Scalzo for her help in summarizing these cases.