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Burgin v. Astrue

United States Court of Appeals, Second Circuit
Oct 8, 2009
348 F. App'x 646 (2d Cir. 2009)

Summary

holding that the ALJ erred in giving "greater weight" to a state agency medical expert without discussing the inconsistent opinion of a treating source

Summary of this case from Woodhouse v. Saul

Opinion

No. 08-1062-cv.

October 8, 2009.

Appeal from a judgment of the United States District Court for the Western District of New York (Telesca, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and hereby, is VACATED and the case REMANDED for further proceedings consistent with this order.

Howard D. Olinsky, Olinsky Shurtliff, Syracuse, NY, for Plaintiff-Appellant.

Krisrjna Cohn, Special Assistant United States Attorney, Social Security Administration, Office of the General Counsel, New York, NY, for Kathleen M. Mehltretter, United States Attorney, Western District of New York, Buffalo, NY, for Defendant-Appellee.

PRESENT: WALKER, ROBERT A. KATZMANN and DEBRA ANN LIVINGSTON, Circuit Judges.


SUMMARY ORDER

Lorie A Burgin appeals from the January 11, 2008 decision and order of the district court affirming the Commissioner of Social Security's denial of her applications for disability and supplemental security income ("SSI") benefits under the Social Security Act. We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.

We review the administrative record de novo to determine whether there is substantial evidence to support the Commissioner's denial of Social Security benefits and whether the Commissioner applied the correct legal standard. See Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002). Burgin's case must be remanded for further administrative proceedings, because the Commissioner, when determining Bur-' gin's residual functional capacity ("RFG") to engage in any substantial gainful activity, (1) failed to account for her major depression and (2) failed to appropriately consider the opinion of her treating physician.

The Commissioner is required to "consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity" to establish eligibility for Social Security benefits. 20 C.F.R. § 404.1523. And, if the Commissioner "do[es] find a medically severe combination of impairments, the combined impact of the impairments will be considered throughout the disability determination process." Id.; see also 20 C.F.R. § 416.945(a)(2). Our case law is plain that "the combined effect of a claimant's impairments must be considered in determining disability; the [Commissioner] must evaluate their combined impact on a claimant's ability to work, regardless of whether every impairment is severe." Dixon v. Shalala, 54 F.3d 1019, 1031 (2d Cir. 1995); see also Burns v. Bamhart, 312 F.3d 113, 123 (3d Cir. 2002) ("A hypothetical question posed to a vocational expert must reflect all of a claimant's impairments. . . . Where there exists in the record medically undisputed evidence of specific impairments not included in a hypothetical question . . ., the expert's response is not considered substantial evidence." (internal citations and quotation marks omitted)).

Here, the administrative law judge ("ALJ") noted that Burgin suffers from major depression and bipolar disorder, but listed only bipolar disorder in Burgin's combined list of impairments when determining her RFC. We are unpersuaded by the Commissioner's argument that the ALJ's consideration of Burgin's bipolar disorder encompassed her depression-related symptoms, because the medical evidence in the administrative record shows that Burgin's major depression and bipolar disorder were considered professionally as separate diagnoses, and because the ALJ's decision includes no such finding. Thus, we conclude that the ALJ failed to include Burgin's major depression among her combination of impairments and did not meaningfully consider how her combined mental disorders affected her social functioning, concentration, persistence, or pace, all of which were important factors in determining whether Burgin could engage in substantial gainful activity. See Assessing Residual Functional Capacity in Initial Claims, S.S.R. 96-8p, 1996 WL 374184, at *7 (July 2, 1996) ("The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.").

The ALJ also failed to discuss the opinion of Dr. Donovan Holder, an anesthesiologist and Burgin's pain management specialist, when determining Burgin's RFC. Under the relevant regulations, a treating physician's opinion is given controlling weight when it is Veil-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial [record] evidence." 20 C.F.R. § 404.1527(d)(2); see also Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). The regulations require that the Commissioner "give good reasons in [the] notice of determination or decision" for the weight assigned to the treating source's opinion. 20 C.F.R. § 404.1527(d)(2). The failure to provide "good reasons" for not crediting a treating source's opinion is a ground for remand. See Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (per curiam) ("We do not hesitate to remand when the Commissioner has not provided `good reasons' for the weight given to a treating physician[`]s opinion and we will continue remanding when we encounter opinions from ALJ[s] that do not comprehensively set forth reasons for the weight assigned to a treating physician's opinion."); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).

In determining that Burgin had the RFC to perform work at the sedentary exertional level with a "sit/stand option" and "low stress work environment," the ALJ gave "greater weight" to the opinion of the state agency medical expert, who determined that Burgin could walk for about six hours in an eight-hour workday and sit for about six hours in an eight-hour workday. However, Burgin's treating physician, Dr. Holder, indicated that Burgin could only stand or walk less than two hours per eight-hour workday and sit for less than six hours in an eight-hour workday, both of which were limitations representing the most restrictive categories that Dr. Holder could indicate on the medical report form. In response to a request for further information on Burgin's limitations, Dr. Holder responded that "[patients] with a [history] of chronic [lower back pain] and radiculopathy are unable to sit, stand or walk for long periods of times causing an [increase] in their pain [and] symptoms." The orthopedic examination of Burgin by Dr. Berton Shayevitz similarly stated that Burgin "is markedly limited in ability to stand, walk, lift, carry, bend, twist, squat, jump, and climb by her back problem."

In relying on the state agency medical expert's opinion to determine Burgin's RFC without even discussing Dr. Holder's opinion, the ALJ did not address the inconsistency between those two opinions and therefore failed to give good reasons for according Dr. Holder's opinion lesser weight. While the Commissioner argues that the ALJ's consideration of Dr. Holder's opinion can be "gleamed from the record," and that the ALJ "implicitly accepted the findings and conclusions of Dr. Holder when assessing Burgin's [RFC]," it is precisely this exercise that the rules do not require us to undertake. The ALJ's consideration must be explicit in the record. Thus, we do not hesitate to conclude that the ALJ erred in failing to explain and "give good reasons" for the weight accorded Dr. Holder's opinion.

On remand, therefore, the ALJ must expressly consider Burgin's combined impairments, including her major depression, must fully account for the opinion of Dr. Holder, and must provide good reasons for giving that opinion more or less weight than the other medical evidence.

For the foregoing reasons, the judgment of the district court is VACATED and the case REMANDED to the district court with instructions to remand to the Commissioner for further proceedings consistent with this order.


Summaries of

Burgin v. Astrue

United States Court of Appeals, Second Circuit
Oct 8, 2009
348 F. App'x 646 (2d Cir. 2009)

holding that the ALJ erred in giving "greater weight" to a state agency medical expert without discussing the inconsistent opinion of a treating source

Summary of this case from Woodhouse v. Saul

holding it was reversible error for ALJ to find the plaintiff had major impairments of both bipolar disorder and major depression, but only accounted for the bipolar disorder when determining the RFC

Summary of this case from Soto v. Saul

vacating and remanding where the ALJ failed to list all of the plaintiff's impairments when considering the plaintiff's combined list of impairments when determining plaintiff's RFC

Summary of this case from Duncan v. Astrue

In Burgin, the plaintiff suffered from major depression and bipolar disorder, but the ALJ failed to mention the bipolar disorder in determining her RFC. Moreover, the ALJ in Burgin failed to consider the combined impact of both of the impairments on the plaintiff's "social functioning, concentration, persistence, or pace, all of which were important factors in determining whether [the plaintiff] could engage in substantial gainful activity."

Summary of this case from Somerville v. Colvin

acknowledging "the combined impact of impairments" must be considered at all steps once an ALJ determines there exists a "severe impairment"

Summary of this case from Holt v. Colvin

stating that an ALJ must "provide good reasons for giving [the treating physician's] opinion more or less weight than the other medical evidence."

Summary of this case from Young v. Colvin

In Burgin, the court found that the ALJ erred in failing to meaningfully consider how the claimant's combination of mental impairments impacted her ability to work; this was error because the ALJ had determined that the claimant had as severe impairments bipolar disorder and major depression, but only accounted for the bipolar disorder when determining the RFC.

Summary of this case from Goulart v. Colvin

remanding where ALJ failed to explicitly consider and explain why portions of a treating physician's opinion did not receive controlling weight

Summary of this case from Maenza v. Colvin

remanding for a new step two severity analysis that should include all of plaintiff's diagnosed mental impairments

Summary of this case from Wahler v. Colvin

In Burgin, the ALJ noted that the claimant suffered from major depression and bipolar disorder, but listed only bipolar disorder in the claimant's combined list of impairments when determining her RFC. The Second Circuit was "unpersuaded by the Commissioner's argument that the ALJ's consideration of Burgin's bipolar disorder encompassed her depression-related symptoms, because the medical evidence in the administrative record shows that Burgin's major depression and bipolar disorder were considered professionally as separate diagnoses, and because the ALJ's decision includes no such finding."

Summary of this case from Beck v. Colvin

remanding for a new step two severity analysis that should include all of plaintiff's diagnosed mental impairments

Summary of this case from Beck v. Colvin
Case details for

Burgin v. Astrue

Case Details

Full title:Lorie A. BURGIN, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner…

Court:United States Court of Appeals, Second Circuit

Date published: Oct 8, 2009

Citations

348 F. App'x 646 (2d Cir. 2009)

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