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Second Circuit Update

Michelle Michelle April 30, 2020

April 2020

 Selected Second Circuit Summary Orders

Ferraro v. Saul, —F. App’x—, 2020 WL 1189399 (2d Cir. Mar. 12, 2020) (pro se) – court remanded, finding 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 relationship with the plaintiff does not constitute explicity considering “the frequency, length, nature, and extent of treatment.” Nor did the ALJ give “good reasons” for discounting the medical evidence supporting their opinions.  It also found the plaintiff’s ability to care for his father had little relevance to his ability to function in a work setting. It also faulted the ALJ for relying instead on the CE opinion.

Riccobono v. Saul, 796 F. App’x 49 (2d Cir. Mar. 4, 2020) (Bohr, Persaud) – court remanded based on ALJ’s failure to base her RFC on a medical opinion, as opposed to relying on her own lay interpretation of the diagnostic tests and other non-medical evidence. Citing Balsamo, the court found the ALJ over relied on the plaintiff’s past ability to exercise and play sports. The court also held the ALJ was obligated to develop the record to fill any gaps created by perceived inconsistencies in the medical opinions.

Gough v. Saul, — F.App’x —, 2020 WL 475745 (2d Cir. Jan. 13, 2020) (Schneider) – court remanded where ALJ had cherry-picked the evidence to find plaintiff’s limitations did not preclude full-time work where treatment notes and testimony did not contradict treating clinician opinions. The ALJ failed to identify conflicting evidence and failed to seek medical source statement where plaintiff appeared pro se before the ALJ. The court also noted a subsequent ALJ had found the plaintiff disabled based on the same record.

Stacey v. Commissioner, — F. App’x —, 2020 WL 61986 (2d Cir. Jan. 7, 2020) (Kubitschek) – court remanded for calculation of benefits, finding the ALJ erred in discounting the treating psychiatrist’s opinion as based on subjective symptoms. The court noted that mental health cases are less susceptible to objective testing and assessment. It also faulted the ALJ for cherry-picking isolated incidents of improvement and overemphasizing the plaintiff’s ability to get along with family members and perform simple, passive activities such as watching TV.

 Byrne v. Berryhill, 752 F. App’x. 96 (2d Cir. 2019) (Bowes) – Court of Appeals remanded in light of the ALJ’s conclusory reasons for assigning “less” weight to three treating physician opinions. The ALJ failed to explain why the diagnostic tests cited by the physician were insufficient to support his conclusions.  Nor did the court find the physician’s acknowledgement that physical therapy had been “helpful” inconsistent with his treatment notes.

Messina v. Comm’r of Soc. Sec. Admin., 747 F. App’x. 11 (2d Cir. 2018) (pro se) – court found  ALJ did not provide good reasons for rejecting the opinion of the treating physician opinion that claimant could not sit more than one to three hours in an eight hour work day.  Additionally, the court found the ALJ had an affirmative duty to re-contact the doctor if the report was unclear. Citing Byam v. Barnhart, 336 F.3d 172, 183 (2d Cir. 2003), the court held that treating source’s retrospective opinion could be accorded controlling weight even though the doctor was not treating claimant at the time he sustained his injuries.  Finally, it criticized the ALJ for relying on the opinion of a state agency consultant who had misread some of the evidence.

Adelman v. Berryhill, 742 F. App’x. 566 (2d Cir. 2018) (Kubitschek) – remanded for the Commissioner to determine if claimant was entitled to ongoing benefits, as SSA had never issued a valid decision or reason why his benefits had been terminated. SSA had wrongfully terminated the claimant’s benefits and assessed an overpayment based on SGA without taking into account the provisions of 20 C.F.R. § 404.1573(c), which provides that work performed under “special conditions that take into account [the claimant’s] impairment may not constitute SGA. The district court had ruled that Adelman did not owe back payments from Feb. 2002-March 2003. On appeal, the claimant sought retroactive reinstatement and on-going benefits. The court ruled that on remand, it would be SSA’s burden to demonstrate the claimant’s entitlement ended. The court also ordered interim benefits.

Flynn v. Comm’r of Soc. Sec. Admin., 729 F. App’x. 119 (2d Cir. 2018) (Torrisi) – court remanded for calculation of benefits. Relying on some of its leading treating physician cases, the court, quoting Shaw, found the ALJ substituted his opinion when he concluded the claimant had nothing more than mild anxiety. The ALJ erred in overemphasizing and mischaracterizing a brief period during which the claimant’s condition was more positive. Nor was the physician’s statement that the claimant could work no more than four days per week inconsistent with his other statements, including 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 experts who did not examine the claimant, citing Selian.

 Johnson v. Comm’r of Soc. Sec. Admin., — Fed. App’x —, 2020 WL 360431 (2d Cir. Jan. 22, 2020) (pro se) – court affirmed, finding the ALJ had properly considered the factors of the treating physician rule, even if not explicitly. The ALJ had observed that the treating physician had 1) seen the plaintiff on few occasions, 2) the opinion was not supported by treatment notes, 3) the functional limitations were not supported by record evident and were inconsistent with treatment notes, and 4) the treating physician specialized in internal medicine. The ALJ’s failure to mention the factors explicitly was harmless error. New disability opinions submitted to the Court of Appeals but not to the District Court were not found to be new and material.

Lau v. Commissioner of Social Sec., 787 F. App’x 59 (Dec. 13, 2019) (pro se) – court affirmed, finding the ALJ’s decision was supported by substantial evidence. It found the ALJ properly gave little weight to records from psychiatrists who did see the plaintiff during the relevant time period. It also agreed that the ALJ properly accounted for occasional exposure to pulmonary irritants.

 Guerra v. Saul, 778 F. App’x 75 (Oct. 10, 2019) – court affirmed, finding the ALJ did not err in discounting the treating source opinion despite not explicitly considering the four factors discussed in Estrella, because a search of the record demonstrated the ALJ had provided good reasons. The opinions in workers compensation forms were meritless, conclusory, vague, and contradicted by other evidence, including the claimant’s testimony. The psychiatric opinions were belied by other evidence. The ALJ appropriately accorded weight to the consultative examiner.

Bachand v. Saul, 778 F. App’x 74 (Oct. 4, 2019) – court affirmed the District Court’s refusal to equitably toll the statute of limitations where complaint was untimely filed. The plaintiff mischaracterized the Appeals Council unintentional ambiguous statements as misconduct. And his attorney’s miscalculation was a garden variety claim of excusable neglect that did not warrant equitable tolling.

 Salinovich v. Comm’r of Soc. Sec. Admin., 783 F. App’x 67, 2019 WL 4743723 (Sept. 30, 2019) – court affirmed, finding the ALJ did not err in according only some weight to the treating source and significant weight to the consultative examiner, where the treating source’s opinion was inconsistent with the treatment notes and the plaintiff’s testimony. Nor was the hypothetical posed to the vocational witness error where it tracked the RFC.