The Court of Appeals for the Second Circuit typically affirms more Social Security appeals than it reverses. And if it reverses, it is far more likely to remand for further proceedings than for calculation of benefits. So the court’s recent decision in Flynn v. Commissioner of Social Security Administration, 2018 WL 3323180 (2d Cir. July 6, 2018) is a very pleasant surprise. And the Summary Order, while not precedential, contains some excellent language about the value of treating physician opinions. [Remember that the SSA’s new evaluation of evidence regulations replacing the “treating physician rule” only apply to claims filed on or after March 27, 2017. The court’s decision was based on the old rule at 20 C.F.R. § 404.1527. See the January 2017 edition of this newsletter for more on the new regulations.]
The court reaffirmed some of the leading Second Circuit treating physician decisions from years past, including Shaw v. Chater, 221 F. 3d 126, 135 (2d Cir. 2000): “Neither the trial judge nor the ALJ is permitted to substitute his own expertise or view of the medical proof for the treating physician’s opinion.”; “[W]hile a physician’s opinion might contain inconsistencies and be subject to attack, a circumstantial critique by non-physicians, however thorough or responsible, must be overwhelmingly compelling in order to overcome a medical opinion.” And Green-Younger v. Barnhart, 335 F.3d 99, 107-08 (2d Cir. 2003), finding an expert’s opinion insufficient to override the treating physician’s opinion where the expert was a consulting physician who did not examine the claimant and relied entirely on an evaluation by a non-physician reporting inconsistent results. And Curry v. Apfel, 209 F.3d 117, 20 123 (2d Cir. 2000), where the expert described the claimant’s impairments in an opinion couched in terms “so vague as to render it useless in evaluating” the claimant’s residual functional capacity. And Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013), finding the ALJ violated the treating physician rule in part by crediting the findings of a doctor who performed “only one consultative examination” of claimant, rather than treating physician.
In Flynn, the court, quoting Shaw, found that the ALJ substituted his opinion when he concluded the claimant had nothing more than mild anxiety. The ALJ based his finding on his combing of the treating physician’s notes for descriptions of the claimant arriving at appointments well-groomed and calm. The court also found the ALJ erred in overemphasizing and mischaracterizing a brief period during which the claimant’s condition was more positive. According to the Court of Appeals, this brief period of wellness was not enough to establish the claimant was capable of work, or to over-ride the treating physician’s opinion to the contrary. Nor was the physician’s statement that the claimant could work no more than four days per week inconsistent with his other statements, including his opinion that the claimant would be expected to miss two or more days a month due to his condition.
The court also faulted the ALJ for relying too heavily on opinions of expert physicians who did not treat or examine Mr. Flynn. It cited Selian for the proposition that doctors who have not treated or examined a patient are generally entitled to less deference. And it noted: “The treatment provider’s perspective would seem all the more important in cases involving mental health, which are not susceptible to clear records such as rays or MRIs. Rather, they depend almost exclusively on less discretely measurable factors, like what the patient says in consultations.” The court also determined that the findings of both experts lacked specificity, further undermining their value in overcoming the treating physician rule.
What compelled the court to reverse in this particular case? It is always hard to tell from a summary order but undoubtedly the court was influenced by the fact that the claim had already been denied, appealed, and remanded several times. Also, Mr. Flynn, after attempting to return to work for nearly one year, was hospitalized twice, attempted suicide, and underwent electroshock therapy. Obviously, appeals depend on good facts. But this case gives us some hope that with a good case on appeal, the Second Circuit’s treating physician rule might survive.