As advocates should be aware by now, the Social Security (SSA) has promulgated regulations eliminating the preferential weight previously afforded treating physician opinions. But in claims filed prior to the effective date of March 27, 2017, courts continue to vacate ALJ decisions and remand when the ALJs fail to comply with the Second Circuit’s long-standing treating physician rule. [See the July 2018, January 2019, and April 2019 editions of this newsletter.] A recently published, and thus precedential, Second Circuit decision suggests the treating physician rule may not go quietly in this Circuit. In Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019), the court endorsed in strong terms the value of treating source evidence and affirmed its prior cases on the topic.
In Estrella, the Second Circuit remanded the claim, 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). The court reiterated its mandate, rooted both in regulation and precedent, for ALJs to follow specific procedures and adequately explain their reasoning:
An ALJ’s failure to “explicitly” apply the Burgess factors when assigning weight at step two is procedural error…If the ‘the Commissioner has not [otherwise] provided ‘good reasons’ [for its weight assignment],” we are unable to conclude that the error was harmless and consequently remand for the ALJ to comprehensive set forth [its] reasons.”…If, however, “a searching review of the record” assures us “that the substance of the treating physician rule was not traversed,” we will affirm.” 925 F.3d at 96, 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).
The ALJ in Estrella had cited two normal mental status examinations. The court found these were cherry-picked findings, made without an attempt to “‘reconcile’ or ‘grapple with’ the apparent longitudinal inconsistencies,” a failure “especially relevant” in a mental health claim. Id. at 97. The ALJ also cited a GAF score of 70 as indicative of only mild difficulties. This was similarly rejected. Finally, the ALJ relied on the consultative examiner’s findings of only mild limitations. The court cited Selian to find it was not a good reason to assign little weight to a treating source, warning that ALJs “should not rely heavily on the findings of [CEs] after a single examination.”
What does Estrella tell us about the future of treating physician evidence? Is this a last hurrah for the treating physician rule? Or a sign that some form of the rule will survive in this Circuit?
The new regulations governing the evaluation of evidence differ from the old rules in that they speak of “persuasiveness” and not about assigning specific weight. See 20 C.F.R. §§ 404.1520c(a) & 416.920c(a). It is encouraging to see the Circuit has not backed away from the principles underlying the rule, and that it takes seriously both the value of treating source opinions and the need for “explicit” reasoning that would permit meaningful judicial review. This is particularly helpful since the new rules do require adjudicators to articulate how they consider various factors, including the relationship to the source.
Time will ultimately tell just how SSA will apply the regulations and how the courts will respond to the changes. Please be sure to share with us your experiences as these cases proceed on appeal.
Congratulations to Carolyn Kubitchek on this great result. And thanks to Emilia Sicilia of the Urban Justice Center for her summary. Starting in the fall, Emilia will be the new DAP Coordinator and a regular contributor!