Alexander v. Saul, — F.4th —, 2021 WL 2832889 (2d Cir. July 8, 2021)
The Second Circuit upheld a district court’s refusal to extend the time to appeal its decision affirming the Commissioner’s denial of an SSI claim. Although the Circuit was “sympathetic” to the plaintiff, it concluded the district court had not abused its discretion – even though the plaintiff filed her appeal and request for an extension only two days after the 60-day deadline expired. The district court had reasonably applied the “excusable neglect” factors rather “good cause” standard under Fed. R. App. P. 4(a)(5) because the plaintiff’s failure to appeal was at least partially due to her own inadvertence in failing to notify her attorney of her change of address rather than due to her alleged mental illness. The court refused to toll the Rule 4(a)(5) deadline as it is considered jurisdictional and less flexible than the statute of limitations governing the 60-day limit to seek judicial review under 42 U.S.C. § 405(g).
Sczepanski v. Saul, — F.3d —, 2020 WL 61806 (2d Cir. Jan. 7, 2020)
The court held that ability to complete work during the probationary period is relevant to a disability claim. It remanded for further proceedings at Step five of the Sequential Evaluation to determine whether the claimant could perform work as required during the probationary period, including meeting the levels for absenteeism tolerated by the employer.
Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019)
The Second Circuit remanded, finding the ALJ committed procedural error in failing to “explicitly” apply the factors laid out in Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008), for evaluating treating source opinions. The court reiterated its mandate, rooted both in regulation and precedent, for ALJs to follow specific procedures and adequately explain their reasoning when assigning weight to opinions, citing Selian v. Astrue, 708 F.3d 409, 419-20 (2d Cir. 2013), Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004)(per curiam). It found the ALJ “cherry picked” the evidence, particularly mental status exam results, without attempting to reconcile longitudinal inconsistencies in this mental health claim. And it criticized the ALJ for relying too heavily on the opinion of the consultative examiner, citing Selian.
Lockwood v. Comm’r of SSA, 914 F.3d 87 (2d Cir. 2019)
The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). The court found the ALJ did not met his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.
Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015)
The Court of Appeals remanded for consideration of a retrospective medical opinion from a treating physician submitted to the Appeals Council, citing Perez v. Chater, 77 F.3d 41, 54 (2d Cir. 1996). The ALJ’s decision was not supported by substantial evidence in light of the new and material medical opinion from the treating physician that the plaintiff would likely miss four days of work per month. Since the vocational expert had testified a claimant who would be absent that frequently would be unable to work, the physician’s opinion, if credited, would suffice to support a determination of disability. The court also faulted the district court for identifying gaps in the treating physician’s knowledge of the plaintiff’s condition. Citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008), the court reiterated it may not “affirm an administrative action on grounds different from those considered by the agency.”
Greek v. Colvin, 802 F.3d 370 (2d Cir 2015)
The court remanded for clarification of the treating source’s opinion, particularly as to the claimant’s ability to perform postural activities. The doctor had also opined that Mr. Greek would likely be absent from work more than four days a month as a result of his impairments. Since a vocational expert testified there were no jobs Mr. Greek could perform if he had to miss four or more days of work a month, the court found the ALJ’s error misapplication of the factors in the treating physician regulations was not harmless. “After all, SSA’s regulations provide a very specific process for evaluating a treating physician’s opinion and instruct ALJs to give such opinions ‘controlling weight’ in all but a limited range of circumstances. See 20 C.F.R. § 404.1527(c)(2); see also Burgess, 537 F.3d at 128.” (Emphasis supplied.)
McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014)
The Court of Appeals for the Second Circuit found the ALJ’s failure to incorporate all of the plaintiff’s nonexertional limitations explicitly into the residual functional capacity (RCF) formulation or the hypothetical question posed to the vocational expert (VE) was harmless error. The court ruled that “an ALJ’s hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace.” 758 F.3d at 152. But in this case, the evidence demonstrated the plaintiff could engage in simple, routine tasks, low stress tasks despite limits in concentration, persistence, and pace; the hypothetical thus implicitly incorporated those limitations. The court also held that the ALJ’s decision was not internally inconsistent simply because he concluded that the same impairments he had found severe at Step two were not ultimately disabling.
Cichocki v. Astrue, 729 F.3d 172 (2d Cir. 2013)
The Court held the failure to conduct a function-by-function analysis at Step four of the Sequential Evaluation is not a per se ground for remand. In affirming the decision of the district court, the Court ruled that despite the requirement of Social Security Ruling (SSR) 96-8p, it was joining other circuits in declining to adopt a per se rule that the functions referred to in the SSR must be addressed explicitly.
Selian v. Astrue, 708 F.3d 409 (2d Cir. 2013)
The Court held the ALJ improperly substituted her own lay opinion by rejecting the claimant’s contention that he has fibromyalgia despite a diagnosis by his treating physician. It found the ALJ misconstrued the treating physician’s treatment notes. It criticized the ALJ for relying too heavily on the findings of a consultative examiner based on a single examination. It also found the ALJ improperly substituted her own criteria for fibromyalgia. Citing the guidance from the American College of Rheumatology now made part of SSR 12-2p, the Court remanded for further proceedings, noting the required finding of tender points was not documented in the records. The Court also held the ALJ’s RFC determination was not supported by substantial evidence. It found the opinion of the consultative examiner upon which the ALJ relied was “remarkably vague.” Finally, the court agreed the ALJ had erred in relying on the Grids to deny the claim. Although it upheld the ALJ’s determination that neither the claimant’s pain nor depression was significant, it concluded the ALJ had not affirmatively determined whether the claimant’s reaching limitations were negligible.
Talavera v. Astrue, 697 F.3d 145 (2d Cir. 2012)
The Court of Appeals held that for purposes of Listing 12.05, evidence of a claimant’s cognitive limitations as an adult establishes a rebuttable presumption that those limitations arose before age 22. It also ruled that while IQ scores in the range specified by the subparts of Listing 12.05 may be prima facie evidence that an applicant suffers from “significantly subaverage general intellectual functioning,” the claimant has the burden of establishing that she also suffers from qualifying deficits in adaptive functioning. The court described deficits in adaptive functioning as the inability to cope with the challenges of ordinary everyday life.