Second Circuit Addresses Credibility and RFC

November 16, 2009

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

We have seen an increase recently in the number of Summary Orders issued by the United States Court of Appeals for the Second Circuit. Although these Summary Orders do not have precedential effect, they may be used and cited, according to the Second Circuit’s Local Rules and the Federal Rules of Appellate Procedure. In October, the Second Circuit issued two Summary Orders reversing adverse District Court decisions that upheld denials of benefits by the Commissioner of Social Security.

In the case of Horan v. Astrue, 2009 WL 3161379 (2d Cir. October 2, 2009), the Court of Appeals overturned an Administrative Law Judge (ALJ) decision finding a claimant not credible because that finding was not supported by substantial evidence and was the product of legal error. The Court noted that the ALJ’s decision was based on testimony that the claimant did not give and on an inconsistency that did not exist. According to the Second Circuit, the ALJ’s recitation of the claimant’s testimony regarding his ability to engage in activities of daily living was just plain wrong. Additionally, a purported inconsistency between the claimant’s testimony and the treating doctor’s report did not exist. Since the ALJ’s credibility determination was based largely on these factual errors, the Court refused to find that it was supported by substantial evidence.

Moreover, the Second Circuit also noted that a claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability, citing earlier reported Second Circuit cases on this issue. Experienced DAP advocate Chris Bowes from CeDar successfully represented the appellant in this case and is to be congratulated on getting this excellent decision.

In the case of Burgin v. Astrue, 2009 WL 3227599 (2d Cir. October 8, 2009), the Court refused to accept the Commissioner’s arguments on two important issues arising in formulating residual functional capacity (RFC): an ALJ’s failure to take into consideration all impairments in combination, and the failure to properly consider treating physician opinions. The claimant presented evidence of diagnoses of major depression and bipolar disorder. However, the ALJ only included the diagnosis of bipolar disorder in determining RFC. Although the Commissioner argued that the ALJ’s consideration of the bipolar disorder encompassed depression-related symptoms, the Court was unpersuaded because the medical evidence treated the two impairments as separate diagnoses.  The ALJ was required to explicitly include consideration of this impairment in combination with her other diagnosis.

The Second Circuit also held that the ALJ erred in failing to discuss the opinion of one of the claimant’s treating physicians when he made a determination that the claimant had the RFC for sedentary work. The ALJ gave greater weight to the opinion of a state agency medical expert on the claimant’s ability to sit and stand, while ignoring the treating source’s opinion that significantly limited the claimant’s ability in these areas. The Court of Appeals refused to accept the Commissioner’s position that the ALJ’s analysis of the treating doctor’s opinion could be “gleamed from the record.” Rather, the Court required that the ALJ’s consideration of treating source evidence must be explicit in the record.

Congratulations to Howard Olinsky, a private attorney from Syracuse, on his success in getting a decision from the W.D.N.Y. overturned in the Second Circuit.
 

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