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2d Circuit Reaffirms Treating Physician Rule – Again!

Empire Justice Center January 31, 2020

Favorable Social Security decisions from the Court of Appeals for the Second Circuit have been few and far  between in recent years.  But of late, several have given advocates hope for the future of our “treating physician rule” in the face of the Social Security Administration’s (SSA’s) new regulations on the evaluation of opinion evidence. [See the July 2018, January 2019, April 2019, and July 2019 editions of this newsletter.]  The Second Circuit began the new year with another great decision, albeit in a case filed before the new regulations went into effect on March 27, 2017.

In Stacey v. Commissioner, — F. App’x —, 2020 WL 61986 (2d Cir. Jan. 7, 2020) (summary order), the court held it is acceptable practice for treating sources to rely on subjective symptoms when giving an opinion in cases with mental disorders.  Here, the court once again wholeheartedly embraced the treating opinion rule and reversed SSA’s decision to credit two non-examining state agency doctors over a longstanding treating source.  At issue was the treating source’s opinion that the plaintiff would be “off task” for more than 15% of the workday based on psychiatric impairment.  The Court cited both Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) and Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) as authority for adherence to its treating physician rule.

The Court of Appeals then specifically rejected the ALJ’s reasoning in declining to give weight to the treating source.  According to the ALJ, the treating psychologist relied too heavily on plaintiff’s self-reported symptoms.  But the court, relying on Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003), reiterated that it is appropriate for a medical diagnosis to be informed by a patient’s subjective description of his or her symptoms.  And the court took the Circuit’s prior statements in Green-Younger about subjective symptoms a step further.

In Stacey, the Second Circuit specifically endorsed the validity of relying on subjective symptoms in mental health cases. Citing Price v. Colvin, 794 F.3d 836, 840 (7th Cir. 2015), the court noted that mental health cases are less susceptible to objective testing and assessment.  And as if that were not enough, the court went on to criticize the ALJ for not applying the “newly minted diagnostic-testing requirement” evenhandedly, as the ALJ had accorded great weight to the opinion of the state agency psychologists who also did no testing.  Although a summary order and not precedential, Stacey will nonetheless be an important case to cite in conjunction with various district court cases that have similarly held.

And wait, there’s more!!  The Second Circuit expressed skepticism about the ALJ’s finding that the plaintiff’s relationship with his wife contradicted the treating source’s conclusion that he had extreme limitations in interacting with coworkers and the public, especially where the evidence otherwise demonstrated tense and hostile relations with the rest of his family.  The court also rejected the ALJ’s cherry picking of isolated instances in the record of improvement to justify findings of a higher level of functioning, citing Estrella v. Berryhill, 925 F.3d 90, 97 (2d Cir. 2019).  And the court rejected the ALJ’s conclusion that the plaintiff’s ability to engage in a passive activity, such as watching television, had any bearing on the plaintiff’s ability to concentrate actively for even simple work tasks.

Overall, the Court of Appeals gave short shrift to SSA’s arguments.  It reversed and remanded for calculation of benefits, a highly unusual victory at the circuit.  Congratulations to Attorney Carolyn Kubitschek for her work on this case – and many others.   Although the rules for weighing opinion evidence have shifted to supportability arguments, this case and other recent circuit decisions will undoubtedly bolster those arguments.

In Sczepanski v. Saul, 946 F.3d 152 (2d Cir. 2020), the same three Circuit Judges took aim at the ALJ’s conclusion that the plaintiff’s inability to complete a probationary period was irrelevant to her ability to perform work in the national economy.  They remanded the claim for further proceedings at Step Five.

In this case, a non-attorney representative did an excellent job on cross-examination of the vocational witness, asking specifically about tolerated levels of absenteeism, especially in a probationary period.  The ALJ rejected this line of questioning.  The ALJ stated that the issue at Step Five was limited to whether the person could perform the work; thus, limitations during the probationary time did not make any difference.  The representative argued that the claimant’s ability to make it through the probationary period is relevant to the ability to sustain employment.  The plaintiff had anxiety, depression, and selective mutism, and was likely to miss at least one day a month at work.

Here, the Circuit narrowed its decision to that one issue: is the ability to complete a probationary period relevant to a disability claim?  The court answered yes.  It also noted that no other Circuit has addressed the issue but that multiple district courts have looked at the issue and largely agreed it is relevant.  SSA raised numerous arguments, including extensive legislative history arguments, all of which were rejected.  Congratulations in this case are due to Attorney Tim Hiller and his firm for pushing the envelope with this cutting edge issue.