Court of Appeals Issues Rulings

March 10, 2010

Author: Catherine M. Callery (Kate) | Louise M. Tarantino

Two recent rulings by the Second Circuit illustrate strikingly different versions of the treating physician rule. In Zabala v. Astrue, --- F.3d ---, 2010 WL 455480 (2d Cir., Feb. 11, 2010), the Court affirmed the Commissioner’s decision denying benefits in the case of a woman suffering from depression and anxiety, while in Gunter v. Commissioner of Social Security, 2010 WL 145273 (2d Cir., Jan. 15, 2010), a different panel remanded under the treating physician rule.

Zabala v. Astrue

Plaintiff Zabala argued that ALJ Robin Artz erred when she failed to consider one of two different reports from the same psychiatrist because it was “incomplete and unsigned.”  The Second Circuit agreed with the plaintiff that the ALJ’s reasoning was factually incorrect, but went on to determine that remand for consideration of the excluded report was not necessary. The Court acknowledged that such a failure to satisfy the treating physician rule would ordinarily require remand.  Turning the case of Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998), on its head, however, it noted that remand is unnecessary “where application of the correct legal standard could lead to only one conclusion.” 

The Court also distinguished Snell v. Astrue, 177 F.3d 128 (2d Cir. 1999), noting that in Snell the unconsidered treating physician reports asserted that the plaintiff was totally disabled and were significantly more favorable to the claimant than those that were considered.  In Zabala, the Court determined that the excluded treating psychiatrist report was “essentially” duplicative of an earlier report by the same psychiatrist. The Court also noted that in both reports, the psychiatrist had indicated that he was “unable to assess” the plaintiff’s work-related functioning.  In a footnote, the Court strained to distinguish what might be characterized as greater detail in the later report, noting that the difference related only to “prognoses,” and was thus forward looking, rather than pertaining to the time period in question.

The Zabala case involved a “closed period” of disability, based on an agreement by counsel at the hearing to amend the time period in issue to the period before the plaintiff allegedly began performing substantial gainful activity (SGA) as a babysitter.  The Court rejected the plaintiff’s arguments on appeal that the ALJ should have done more to develop the record regarding the actual work activity.  The Court essentially performed its own analysis of whether the plaintiff’s activities constituted SGA.  It also held the plaintiff’s attorney had the authority to amend the period under review. Absent any showing that the plaintiff was coerced or deceived into stipulating to the closed period, “the attorney’s conduct is imputed to the Petitioner.”  2010 WL 455480 *5.

Ultimately, the Court of Appeals found that the ALJ’s determination that the plaintiff could return to her past work as a self-employed jewelry salesperson was well-supported.  It also upheld that ALJ’s gratuitous determination at Step five of the Sequential Evaluation that the plaintiff was not disabled under the Medical-Vocational Guidelines (the “grids”).  The Court quoted Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986), for the proposition that “the mere existence of a nonexertional impairment does not automatically…preclude reliance of the guidelines.” 2010 WL 455480 *7.

Gunter v. Commissioner of Social Security

The Court of Appeals issued a more generous decision, albeit by summary order, in Gunter v. Commissioner of Social Security, 2010 WL 145273 (2d Cir. Jan. 15, 2010).  The Court held that the Commissioner failed to give good reasons for rejecting the opinion of the pro se plaintiff’s treating physician, noting that “the ALJ’s incantatory repetition of the words ‘substantial evidence’” was not sufficient. 2010 WL 145273 *2. 

The ALJ had given controlling weight to the opinion of the treating physician “insofar as it is consistent with the substantial evidence of record,” but gave little weight to his opinion as to the plaintiff’s limitations in sitting “because it was not consistent with substantial of record.” The Court found this analysis “to fall far short of the ALJ’s duty to provide ‘good reasons’ for rejecting a treating physician’s opinion.” Id.

The panel speculated that the ALJ may have discredited the treating physician because non-examining physicians had reached different conclusions. While acknowledging that an ALJ is entitled to credit opinions of consulting physicians and resolve contradictions, the Court noted that they cannot be resolved arbitrarily. The Court went on to point out that the ALJ’s reliance on the consulting physicians “as if they spoke with a unified voice appears to be factually as well as legally problematic.”  Id.  The Court also noted that one of the non-examining physicians made his assessment – as is often the case – without reviewing the complete, more fully developed record.  The Court relied on an old classic – Hidalgo v. Bowen, 822 F.2d 294, 298 (2d Cir. 1987) – to hold that as such, the Commissioner’s evidence was not sufficiently substantial to override the treating physician’s assessment.  Accordingly, it remanded the case for further review.

The moral of the story?  Is it the luck of draw in terms of panel members? Maybe - although Judge Pooler sat on both panels.  Or is it about the underlying fact - such as the difference between a treating physician report that did not quantify limitations versus one that did?  Or is it phases of the moon?