After a series of decisions reaffirming its long-standing “treating physician rule,” the Second Circuit affirmed a District Court decision under the pre 2017 opinion evidence regulations. Schillo v. Kijakazi, — 4th —, 2022 WL 1020381 (2d Cir. Apr. 6, 2022). The Court of Appeals found the ALJ properly accorded lesser weight to the opinions of two treating physicians because one was conclusory and vague and the other, rendered in check-box format, was not supported by the medical evidence. And according to the court, both opinions as to the plaintiff’s tremors and sensory deficits were inconsistent with the medical evidence, which identified only mild tremors, as well as the plaintiff’s testimony.
The court acknowledged its decisions holding that a disabled person’s endurance of pain to pursue important goals should not be held against her, citing Colgan v. Kijakazi, 22 F.4th 353 (2d Cir. Jan. 3, 2022), summarized in the January edition of this newsletter. It noted, however, that the plaintiff did not testify that she persevered through pain when completing activities or had difficulty with manipulation. While the court observed this testimony alone might not have been sufficient to justify according lesser weight to the treating sources, it bolstered the conflicting evidence of record identified by the ALJ.
The court also agreed with the ALJ’s assessment that the opinion of the consultative examiner was entitled to even less weight. It rejected plaintiff’s argument that the ALJ could not make an RFC finding because she had declined to accord controlling weight to any of the medical opinions; the ALJ is entitled to weigh all available evidence to make RFC findings and her conclusion need not perfectly correspond with opinions of record. Finally, the court found that the ALJ’s failure to articulate the so-called Burgess factors for evaluating treating source opinions to be harmless error as it was evident she had applied the substance of the treating physician rule.