Case Information
‐ ‐ cv Estrella Berryhill
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________ August Term
(Argued: April Decided: May 2019) Docket No. ‐
B RENDA E STRELLA
Plaintiff ‐ Appellant ,
–v.– N ANCY A. B ERRYHILL A CTING C OMMISSIONER OF S OCIAL S ECURITY Defendant Appellee
______________
Before:
WESLEY, CHIN, Circuit Judges ; KAPLAN, District Judge [*]
Plaintiff Appellant Brenda appeals judgment United States District Court for Eastern District New York (Kuntz, J. ) affirming Commissioner Security’s denial disability benefits. contends administrative law judge who reviewed her claim, whose adopted, erred by (A) failing give controlling physician (B) failing explain reasons giving *2 that opinion minimal weight. For the reasons that follow, we VACATE the judgment of the district court and REMAND the case the Commissioner for further proceedings consistent this
_________________ CAROLYN A. KUBITSCHEK, Lansner & Kubitschek, New York, NY, for Plaintiff ‐ Appellant
CANDACE SCOTT APPLETON, Assistant United States Attorney (Varuni Nelson Arthur Swerdloff, Assistant United States Attorneys, brief ), for Richard P. Donoghue, United States Attorney for Eastern District of New York, New York, NY, for Defendant Appellee
_________________
WESLEY, Circuit Judge :
Plaintiff Appellant Brenda appeals judgment United States District Court Eastern District New York (Kuntz, J. ), affirming Commissioner Social Security’s (“Commissioner”) denial disability benefits under Titles II XVI Security Act (“SSA” “the Act”), U.S.C. §§ 401–434 1381–1383. contends that administrative law judge (“ALJ”) who reviewed her claim, whose adopted, erred (A) failing give controlling opinion physician (B) failing explain reasons giving minimal weight. For reasons follow, we vacate judgment district court *3 and remand case to for further proceedings consistent this
BACKGROUND
Estrella worked as an administrative clerk from 1994 until 2008. Beginning 2002 and continuing through least 2013, Estrella suffered from, relevant to this appeal, major depressive disorder, bipolar disorder, and Attention Deficit Hyperactive Disorder. From 2006, and again from 2013, Estrella took various medications treat illness attended monthly psychotherapy sessions. testified she did seek treatment between because she “was an abusive relationship[,] was suffering severe depression,” had consequently “withdr[awn] [her]self.” 108.
In June applied Security Disability Insurance Supplemental Security Income benefits. She claimed she had been unable work since August because depression, herniated discs, knee pain, diabetes, nerve damage, sleep apnea, “spasms.” Id.
A claimant disabled purposes SSA if she unable “engage any substantial gainful activity reason any medically determinable physical *4 or impairment [that] can be expected result in death or has lasted or can be expected last a continuous period of less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration has outlined a “five step, sequential evaluation process” determine whether a claimant disabled:
(1) whether the claimant currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination impairments; (3) whether the impairment meets or equals severity specified impairments in the Listing Impairments; (4) based a “residual functional capacity” assessment, whether claimant can perform any his her past relevant work despite impairment; (5) whether there are significant numbers jobs in national economy claimant can perform given claimant’s residual functional capacity, age, education, work experience.
McIntyre Colvin 146, (2d Cir. 2014) (citing Burgess v. Astrue F.3d 117, (2d Cir. 2008); C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v)). The claimant bears burden proving case steps one through four. Id. The burden shifts Commissioner step five. Id.
On October 22, 2012, denied Estrella’s application. Security Administration’s Office Disability Adjudication Review subsequently granted request hearing before an ALJ. Following hearing October second hearing January determined, accordance five step process, following: (1) *5 “ha[d] not engaged substantial gainful activity since August 27, 2008,” 25; (2) her mild lumbar median nerve radiculopathy, mild moderate bilateral carpal tunnel syndrome, diabetes, depression were severe impairments because conditions “impose[d] more than minimal limitations” on her ability perform basic work activities, id. ; (3) she did have an impairment combination impairments met or equaled severity specified impairments Listing Impairments, id. ; (4) she had residual functional capacity (“RFC”) perform light work, certain limitations, she could perform past relevant work an administrative clerk, which would be precluded RFC, id. at 27, 30; (5) she could otherwise perform “wide range light level work,” id. The accordingly denied Estrella’s application. Id. Office Disability Adjudication Review denied request review May 14, 2015, point decision became final Commissioner. On July 8, 2015, filed complaint
United States District Court Eastern District New York, effectively appealing Commissioner’s decision. On September district court *6 denied motion judgment on pleadings granted the Commissioner’s cross motion same. This appeal followed.
DISCUSSION
I. Standard Review
On an appeal denial disability benefits, “we focus administrative ruling rather than district court’s opinion.” McIntyre , 758 F.3d 149 (citation omitted). “We conduct a plenary review administrative record determine if there is substantial evidence, considering record as whole, support Commissioner’s if correct legal standards have been applied.” Cichocki v. Astrue , F.3d 175–76 (2d Cir. 2013) (per curiam) (quotation marks citation omitted). Substantial evidence evidence that “a reasonable mind might accept adequate support conclusion.” McIntyre F.3d (citation omitted). Although we do require “every conflict record be reconciled by Secretary, . . . we do [require] crucial factors any determination be set forth sufficient specificity enable us decide whether determination supported substantial evidence.” Ferraris Heckler (2d Cir. 1984).
II. Treating Physician Rule Estrella principally challenges handling treating psychiatrist’s opinion. In October Dr. Felix Dron submitted Medical Source Statement to Office Disability Adjudication and Review in he opined “poor concentration, forgetful[ness], low stress tolerance, rage outbursts[,] depression[,] and anxiety” resulted “marked” limitations in areas making work ‐ related decisions understanding, remembering, carrying out detailed instructions. 507–08. Although Dron had treated roughly five years, ALJ assigned “little weight” his opinion. Id. argues that, doing so, ALJ failed comply with procedural mandates so called treating physician rule. We agree. Security Administration regulations, as well as our precedent, mandate specific procedures an must follow determining appropriate assign treating physician’s First, must decide whether is entitled controlling weight. “[T]he opinion claimant’s physician as nature severity [an] impairment given ‘controlling weight’ so long ‘is well supported medically acceptable clinical laboratory diagnostic techniques inconsistent other *8 substantial evidence [the] case record.’” Burgess , 537 F.3d at 128 (third brackets original) (quoting 20 C.F.R. § 404.1527(c)(2)). Second, if the ALJ decides the opinion is entitled controlling weight, it must determine how much weight, if any, give it. In doing so, must “explicitly consider” following, nonexclusive “ Burgess factors”: “(1) frequen[cy], length, nature, extent treatment; (2) amount medical evidence supporting opinion; (3) consistency remaining medical evidence; (4) whether physician specialist.” Selian v. Astrue , 708 F.3d 418 (2d Cir. 2013) (per curiam) (citing Burgess , F.3d at 129 ( citing 20 C.F.R. § 404.1527(c)(2))). At both steps, must “give good reasons [its] notice determination weight [it gives the] source’s [medical] opinion.” Halloran Barnhart F.3d (2d Cir. 2004) (per curiam) (quoting C.F.R. § 404.1527(c)(2)).
An failure “explicitly” apply Burgess factors when assigning weight step two procedural error. Selian 419–20. If “the has [otherwise] provided ‘good reasons’ [for its assignment],” we are unable conclude error was harmless consequently remand “comprehensively set forth [its] reasons.” See *9 Halloran F.3d at . If, however, “a searching review of record” assures us “that substance of physician rule was not traversed,” we will affirm. See id. at 32.
To begin, although substantial evidence supports ALJ’s decision at step one to assign less than controlling to Dr. Dron’s opinion, same not true of its at step two to assign “little weight” thereto. In deciding, at step one, Dr. Dron’s was entitled controlling weight, *10 Dr. Dron treated to 2006, again from to 2013. Nor did ALJ consider that Dr. Dron prescribed various psychotropic medications over course his treatment, addition to providing monthly psychotherapy sessions.
Because ALJ procedurally erred, question becomes whether “a searching review record . . . assure[s us] . . . that substance . . . rule was not traversed”— i.e. whether record otherwise provides “good reasons” assigning “little weight” to Dr. Dron’s See Halloran 32. It does not.
First, number treatment notes not cited reflect more serious impairment than acknowledged. For example, January prior to only two referenced notes, Dr. Dron observed that
[was] inattentive[,] . . . ha[d] short attention span[,] . . . often [did] seem to be listening when spoken to directly[,] . . . often [did] not follow through instructions[,] fail[ed] to finish tasks. She [was] disorganized . . . [and avoided t]asks require sustained effort . . . . She often los[t] things necessary tasks activities[,] . . . [and was] easily distracted . . . [and] forgetful.
directly . . . . Tasks that require[d] sustained mental effort [were] still being avoided . . . . [Estrella] continue[d] often lose things necessary for tasks or activities[,] . . . [was] still as forgetful as previously[,] . . . [and showed] signs of anxiety.
Id. made no attempt “reconcile” or “grapple with” apparent
longitudinal inconsistencies Estrella’s mental health—one of motivations behind Burgess ’s procedural requirement of explicit consideration of “the frequen[cy], length, nature, and extent [a physician’s] treatment.” See Selian , F.3d 418–19. This failure is especially relevant here because first Burgess factor, and therefore evidence supporting its satisfaction, is heightened importance context claimed impairment: depression. “Cycles improvement debilitating symptoms [of illness] are a common occurrence, such circumstances it is error for an pick out a few isolated instances improvement over a period months or years treat them basis concluding claimant is capable working.” Garrison v. Colvin (9th Cir. 2014); see also Bauer Astrue F.3d (7th Cir. 2008) (“A person who has chronic disease, whether physical psychiatric, under continuous treatment heavy drugs, is likely have better days worse days . Suppose half time she well enough she could *12 work, half the time she not. Then she could not hold down full ‐ time job.”). When viewed alongside the evidence of the apparently cyclical nature of Estrella’s depression, ALJ’s two cherry picked treatment notes do not provide “good reasons” for minimalizing Dr. Dron’s opinion.
Second, Global Assessment of Functioning (“GAF”) scores, which concluded “indicated mild depression, not marked depression,” 29, do provide good reasons assigning little weight Dron’s The Social Security Administration has explained that “[u]nless [a] clinician clearly explains reasons behind his her GAF rating, period rating applies, it does provide reliable longitudinal picture claimant’s functioning disability analysis.” U.S. Soc. Sec. Admin., Office Disability Programs, AM 13066, Global Assessment Functioning (GAF) Evidence in Disability Adjudication (Oct. 2014). Furthermore, “[u]nless GAF rating well supported consistent other evidence file, entitled little weight under our rules.” Id. Because Estrella’s GAF scores were bereft any explanation Dr. Dron’s reasoning, because they are unsupported Dr. Dron’s other conclusions as severity depression, they do not provide “good reasons” assigning little Dr. Dron’s opinion.
Finally, opinion Dr. Christopher Flach, a one time consultative psychologist, similarly does not provide a good reason diminishing Dr. Dron’s After examining once September Dr. Flach opined had mild problems maintaining attention concentration but could follow understand simple directions instructions, maintain a regular schedule, learn new tasks, perform complex tasks independently, make appropriate decisions. assigned “substantial weight” Flach’s because “[was] consistent [Dr. Dron’s] mental treatment notes, [did] not show marked limitations.” 29.
We have frequently “cautioned ALJs should rely heavily findings consultative physicians after single examination.” Selian This concern even more pronounced context illness where, discussed above, one time snapshot claimant’s status may be *14 indicative of her longitudinal mental health. Because the ALJ made the same error with respect to Dr. Flach it did with respect to Dr. Dron—namely, relying his opinion without “reconcil[ing]” or “grappl[ing] with” Estrella’s fluctuating state of health—we are not assured that, had the ALJ complied with the procedural mandates of the treating physician rule, would still have assigned significant to Dr. Flach’s opinion of Dr. Flach, other words, similarly does not provide “good reason” for minimizing that of Dron.
In light of the ALJ’s failure to “explicitly consider” the first Burgess factor before assigning “little weight” to the of Estrella’s treating psychiatrist, the lack of other “good reasons” to support that decision, we conclude that the traversed the substance the physician rule. [2] Accordingly, we remand the reconsideration claim for disability benefits consistent with procedural mandates SSA this Court. On remand, should apply all four Burgess factors determining appropriate accord Dron’s opinion.
CONCLUSION
For foregoing reasons, judgment district court VACATED, case REMANDED further proceedings consistent this
render[] any further proceedings pointless,” Williams Apfel (2d Cir. 1999).
[*] Judge Lewis A. Kaplan, United States District Court Southern District New York, sitting designation.
pointed two positive treatment notes from July August 2012. October Medical Source Statement, explained, [was] inconsistent evidence [Dr. Dron’s own] examination [Estrella]. During [Dr. Dron’s] examination [Estrella], most status examinations were normal, she only had at most mild depression, she denied having hallucination [ sic ], suicidal, homicidal ideations, there was no evidence cognitive limitations psychosis. Most importantly, September through October 15, 2013, [Estrella’s] [Global Assessment Functioning] scores [had] been consistently at indicate[d] mild depression, marked depression. 29. In subsequently deciding, step two, assign “little weight” Dron’s opinion, provided no additional reasoning. It thus failed “explicitly consider” first Burgess factor—“the frequen[cy], length, nature, extent [Dr. Dron’s] treatment”—before weighing value See Selian Nowhere decision, example, fact
In June subsequent two referenced notes closer time decision, Dron observed anxiety symptoms continue[d] . . . . [She] continue[d] be inattentive[,] [and did] seem be listening when spoken
[1] Government contends waived any argument regarding treatment GAF scores. However, we have explained, claimants Security cases must preserve legal arguments—not necessarily factual ones. See Poupore Astrue (2d Cir. 2009) (per curiam). preserved legal argument erroneously assigned little her physician. Accordingly, we will review factual GAF argument support claim legal error.
[2] also challenges ALJ’s hypothetical question vocational expert. However, because she “does not challenge determination she has physical [RFC] perform light work,” Appellant Br. n.23, we do consider this argument, concerns physical limitations resulting her mild moderate bilateral carpal tunnel syndrome.
[3] Although we have “power enter, upon pleadings transcript record, judgment affirming, modifying, or reversing Security, without remanding cause rehearing,” U.S.C. § 405(g), record here does “provide[] persuasive evidence total disability [would]