Court of Appeals Issues New Opinions

November 1, 2008

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

Ann Biddle, Esq, Paul M. Ryther, Esq.

After a long period of relative silence, the Second Circuit Court of Appeals has issued two very helpful decisions in relatively short succession.  In August, the Court ordered a remand for further consideration of treating physician evidence in Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008).  Last month, the Court remanded a mental impairment claim for further for application of the correct legal standards.  Kohler v. Astrue, --- F.3d ---, 2008 WL 4589156 (2d Cir. October 16, 1008).  And in one of its “unpublished” decisions - Burger v. Astrue, 2008 WL 259517 (2d Cir. June 27, 2008) - the Court remanded for further development because the claimant was unable to afford treatment.

Burgess v. Astrue

In Burgess, the Court considered the claim of a woman who suffered injuries on the job to her knee and back when she was thirty-two years old.  The Administrative Law Judge (ALJ) concluded that she could return to her past work as a salesperson, despite evidence from her long time treating physician that she was disabled.

The ALJ rejected the opinion of Dr. Smith, who had been Ms. Burgess’s treating orthopedist since the time of her injury in 1997.  The ALJ instead relied primarily on the hearing testimony of a Medical Expert who asserted that there was no objective evidence of nerve root impingement justifying Burgess’s complaints of back pain. Dr. Abeles opined that Ms. Burgess may be “subjectively” disabled, but there was no objective reason she could not work.

Treating physician Smith, however, had declared Ms. Burgess disabled following his review of a 1999 MRI that indicated encroachment of a bulging disc into the neural foramen.  According to Dr. Smith’s testimony before the Workers’ Compensation Board,  the MRI report did not state directly that the disc was impinging on nerve root; it, however, “us[ed] other words that mean the exact same thing.”  He also testified that his   clinical findings were consistent with the MRI.

Despite the fact that Dr. Smith’s testimony and the MRI report were included in the Social Security record both the ALJ and ME Abeles assumed otherwise.  They did, however, acknowledge that an MRI had been done.  The District Court agreed that that the ALJ’s belief that the MRI   report was not in record was erroneous, but upheld his decision nonetheless, finding that the MRI did not provide objective evidence of nerve impingement.

The Court of Appeals, however, concluded that the MRI was both in the record and was objective evidence.  It held that ME Abeles opinion was flawed by virtue of the fact that by his own admission he did not review a key piece of evidence in the case.  It also criticized the ALJ, noting that even if the MRI had not been included in the record, the ALJ, once he became aware of its existence, should have requested it in light of his obligation to develop the record.

The Court also rejected the Commissioner’s attempt to argue that the MRI was not supportive of Dr. Smith’s opinion.  It held that because the MRI was not part of the basis of the ALJ’s denial, the court could not “affirm an administrative action on grounds different from those considered by the agency.”  Additionally, the Second Circuit found that the Commissioner’s new argument that the MRI did not support the treating physician’s opinion was not supported by the record.  It pointed out that neither the Commissioner nor the District Court was permitted to substitute their views of medical proof for “competent medical opinion.”  It thus held that the ALJ’s finding that there was no objective evidence to support Dr. Smith’s opinion was unsupported by anything other than the flawed opinion of ME Abeles. 

Ultimately, however, the Court concluded that a reversal was not appropriate.  It held that there was evidence of record that might be considered as contradicting the opinion of treating physician Smith.  The Court specifically held that ME Abeles’s testimony could not be considered substantial evidence, nor could that of the consulting examiner who was also not aware of the MRI findings when he offered his opinion.  It did, however, direct the Commissioner on remand to consider the reports of the Workers’ Compensation doctor who had examined Ms. Burgess twelve separate times and appeared to have taken into account the MRI report in concluding that that her complaints were not credible.

On remand, the Court ordered the ALJ to consider expressly the MRI report and Dr. Smith’s reports.  If the ALJ declines to give controlling weight to Dr. Smith’s opinion, he must, according to the Court of Appeals, provide Burgess with a comprehensive statement as to what weight is given and for what reasons.

In reaching this conclusion, the Court provides a handy compendium - with case citations - of some of its leading axioms concerning the weighing of treating physician evidence.  For example, not all “expert” opinions rise to the level of evidence sufficiently substantial to undermine the opinion of a treating physician, especially if the expert did not examine the claimant or relied on the evaluation of a non-physician.  Nor can the opinion of a treating physician be discounted merely because he has recommended conservative treatment, although evidence that a claimant takes only over-the-counter pain medication may help support a finding of nondisability if accompanied by other substantial evidence.  Additionally, the longer a treating source has treated the claimant, and the more times s/he has seen the claimant, the more weight the Commissioner must give to his/her opinion.  And, of course, the ALJ must “comprehensively” set forth the reasons for the weight assigned to any treating physician opinions.

Kohler v. Astrue

In overturning the Commissioner’s denial of the claim of Kathy Kohler, the Second Circuit held that the ALJ’s failure to adhere to the regulations requiring the application of a “special technique” at Steps two and five of the sequential evaluation for mental impairments constituted grounds for remand.

Some advocates may recall that back in the “good old days,” ALJs were required to compete and attach the Psychiatric Review Technique Form (PRTF) to their decisions.  The PRTF, which is still mandatory at the initial and reconsideration levels of review, provides documentation that the adjudicator has actually rated the degree of functional limitation in the four broad functional areas of activities of daily living; social functioning; concentration, persistence , or pace; and episodes of compensation.  Although the regulations were amended in 2000 and no longer require that the ALJ complete and attach a PRTF to each decision, the written decision nonetheless “must include a specific finding as to the degree of limitation in each of the functional areas…” 20 C.F.R. §404.1520a(e)(2).

In Ms. Kohler’s case, the ALJ agreed that her bipolar disorder was severe, but concluded with little analysis that it did not meet or equal a listed impairment.  He went on to evaluate her functional capacity, concluding that she displayed “mild” symptoms that “appear well controlled” when properly medicated.  He addressed how her bipolar disorder restricts her activities of daily living only in general terms, despite some evidence that her limitations were more than mild.  He reviewed various medical reports, and concluded that Ms. Kohler could return to her past relevant work.

According to the Court of Appeals, “the ALJ failed to adhere to the regulations, as his written decision does not reflect application of the special technique and, in particular, lacks specific findings with respect to each of the four functional areas described in §404.1520a(c).”  2008 WL 4589156*6.  The Court acknowledged that the consequence of such noncompliance was a matter of first impression in this circuit, although other courts of appeals had not been hesitant to remand when noncompliance resulted in an inadequately developed record in terms of the four functional categories.

Although some courts have performed a “harmless error” analysis before remanding, the Second Circuit concluded that the ALJ’s lack of distinct analysis in this case prevented the Court from being able to conduct an adequate review.  Thus, even if the ALJ’s failure to adhere to the regulations “might under other facts be harmless [citations omitted], the record in this case does not allow us to say the ALJ’s failure was harmless.”  The Court noted that the ALJ’s failure to follow the “special technique” was exacerbated by his tendency to “overlook or mischaracterize relevant evidence, often to Kohler’s disadvantage.” 200 WL 4589156*7.

In another nugget that will undoubtedly prove useful for advocates in future cases, the Court also criticized the ALJ for focusing in isolation on the treating source’s use of the word “stable” to describe Ms. Kohler’s condition on several occasions.  As the Court noted, subsequent treatment notes were “significantly less enthusiastic.”  Id.

Finally, the Court of Appeal admonished the ALJ for failing to take into consideration the opinion of the nurse practitioner treating Ms. Kohler.  The Court acknowledged that her opinion was not entitled to controlling weight as she was not an acceptable medical source under the treating physician regulations.  Citing somewhat dated cases and with no reference to SSR 06-3p, the Court, however, held the ALJ should have given the nurse practitioner’s opinion some consideration, “particularly because [the nurse practitioner] was the only medical professional available to Kohler for long stretches of time in the very rural ‘North Country’ of New York State.”  Id.

Unpublished Decision

It is heartening to see the Second Circuit reinforce its treating physician rules, and again remind ALJs of their obligation to decide disability claims fully and fairly.  Despite the dearth of published decisions of late from the Court of Appeals, the court has been issuing decisions - generally affirming the Commissioner - that are not selected for publication in the Federal Reporter, but are available on Westlaw or in the Federal Appendix.  Advocates may recall that Federal Rule of Appellate Procedure 32.1 was amended recently to prohibit Courts of Appeals from restricting the citation of such “unpublished” decisions.  See the May 2006 edition of the Disability Law News.  Their precedential value may, however, be more limited.

A recent “unpublished” decision that advocates may well want to cite is one in which the Court of Appeals reversed the Commissioner.  In Burger v. Astrue, 2008 WL 2595167 (2d Cir. June 27, 2008), the ALJ had found the claimant’s testimony “only somewhat credible” in light of the absence of corroborative medical evidence.  Ms. Burger had had only sporadic treatment and had not offered any assessments from her physicians.  The Court of Appeals acknowledged that it was the claimant’s burden to demonstrate that she could not return to her past work, and noted that her failure to seek medical treatment could cast doubt on her testimony.  Ms. Burger, however, had testified that she could only seek occasional emergency medical care because she was uninsured and could not afford treatment.  It held that the ALJ was obligated to help develop the record in order to ensure an accurate assessment of the claimant’s residual functional capacity, including ordering consultative examinations.