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Second Circuit Remands for Reassessment

Empire Justice Center January 31, 2020

The Court of Appeals for the Second Circuit has been reinforcing its long-time “treating physician rule.” Another recent summary order continues that trend.  In Gough v. Saul, — F. App’x — , 2020 WL 475745 (2d. Cir. Jan. 13, 2020), the court remanded for the Commissioner to explain why he gave greater weight to the evaluating rather than treating clinicians, to allow the plaintiff to supplement the record, and to reassess the plaintiff’s credibility and residual functional capacity (RFC). The court also ordered the Commissioner to request medical source statements from the treating physicians, if warranted.

The Second Circuit found there was little support in the record for the Administrative Law Judge’s (ALJ’s) conclusion that the limitations of function in the record did not preclude full time work. It questioned the ALJ’s conclusion that treatment notes did not suggest significant problems in functioning. The court cited treatment notes reflecting the plaintiff’s trouble motivating herself to get of bed, as well as occasional suicidal thoughts. It also highlighted the plaintiff’s testimony as to her limitations. The court feared the ALJ had cherry-picked evidence to support his conclusion the plaintiff could work full-time even though the record suggested greater dysfunction, citing Estrella v. Berryhill, 925 F.3d 90, 97 (2d Cir. 2019).

The court also found the ALJ erred in not giving greater weight to the plaintiff’s subjective symptoms, given that the medical evidence supported her descriptions. The ALJ failed to explain how he had identified or weighed any material conflicts in the evidence of record. According to the court, if the ALJ puts greater weight on other evidence of record, he is required to explain why, especially if he accorded it more weight than accorded to records from treating clinicians.

The Court of Appeals acknowledged the ALJ may have not seen a conflict, as the treatment notes did not explicitly indicate the plaintiff could not work full-time. But the court noted that a subsequent ALJ had viewed the same treatment records and found the plaintiff disabled starting the day after the time period in the appeal. It held that if the ALJ had perceived a gap in the record in terms of opinions as to ability to work, especially here where the plaintiff has appeared pro se before the ALJ, he had a duty to fill that gap.

In its relatively short, summary order, the Second Circuit reiterated several basic rules, including the duty to develop the record. It also acknowledged a subsequent favorable determination, something the courts are not always willing to consider. Congratulations to Attorney Mark Schneider of Plattsburgh for this victory.