Second Circuit Remands Two Claims

Empire Justice Center April 30, 2020

In March, the Court of Appeals for the Second Circuit remanded a claim based on the Administrative Law Judge’s (ALJ’s) failure to base her residual functional capacity (RFC) on a medical opinion. See Riccobono v. Saul, 796 F. App’x 47 (2d Cir. Mar. 4, 2020).  After discounting the medical opinions of record, the ALJ relied on her own lay interpretation of the diagnostic tests and other non-medical evidence. Absent overwhelmingly compelling reasons for discounting the opinions of the plaintiff’s treating physicians, the court held the ALJ had an obligation to fill in any gaps created by the inconsistencies in the medical opinions. She should, for example, have directed the physicians to supplement their findings with additional information rather than reach her own conclusions.


Citing Balsamo in its summary order, the court also found the ALJ over-relied on the plaintiff’s past ability to exercise and play sports. The ALJ failed to acknowledge these activities occurred before the claim was filed. Moreover, the court found the record demonstrated the plaintiff’s lifestyle was “not inconsistent” with the treating physicians’ opinions.


Private attorneys Sarah Bohr and Sharmine Persaud successfully represented the plaintiff.


In another summary order, the Court of Appeals remanded a case in which the ALJ failed to apply the Burgess factors or provide “good reasons” for assigning reduced weight to the opinions of plaintiff’s treating physicians. The ALJ’s mere acknowledgement of the physicians’ lengthy relationships with the plaintiff does not constitute an explicit consideration of “the frequency, length, nature, and extent of treatment.” Nor did the ALJ give “good reasons” for discounting the medical evidence supporting their opinions. This is another in a series of cases in which the Second Circuit has relied on its past “treating physician rule” case law to remand or reverse cases filed before the new opinion evidence regulations went into effect on March 27, 2017. See the January 2020, July 2018, January 2019, April 2019, and July 2019 editions of this newsletter.


The court also found the plaintiff’s ability to care for his father had little relevance to his ability to function in a work-setting. And it faulted the ALJ for relying on the CE opinion instead of the treating sources. Ferraro v. Saul, — F. App’x —, 2020 WL 1189399 (2d Cir. Mar.12, 2020). Mr. Ferraro represented himself before the Court of Appeals.