Opinion
21-186-cv
03-14-2022
SEAN HAMIE ROBINSON, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
FOR PLAINTIFF-APPELLANT: Charles E. Binder, Daniel Jones, Binder & Binder, New York, NY FOR DEFENDANT-APPELLEE: Varuni Nelson, Arthur Swerdloff, Assistant United States Attorneys, for Breon S. Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of March, two thousand twenty-two.
Appeal from a judgment of the United States District Court for the Eastern District of New York (LaShann DeArcy Hall, Judge).
FOR PLAINTIFF-APPELLANT: Charles E. Binder, Daniel Jones, Binder & Binder, New York, NY
FOR DEFENDANT-APPELLEE: Varuni Nelson, Arthur Swerdloff, Assistant United States Attorneys, for Breon S. Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY
PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., BETH ROBINSON, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is VACATED and the case is REMANDED.
Sean Hamie Robinson appeals from a December 2, 2020 judgment of the United States District Court for the Eastern District of New York (DeArcy Hall, J.) affirming the final decision of the Commissioner of Social Security, which rejected Robinson's application for disability insurance benefits after an administrative law judge (ALJ) determined that Robinson was not disabled under the Social Security Act. See 42 U.S.C. § 401 et seq. We assume the parties' familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to vacate and remand.
In deciding an appeal of the denial of disability benefits, we "focus on the administrative ruling" and determine whether the ALJ's decision was supported by "substantial evidence" and applied the correct legal standards. McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (quotation marks omitted). While "the evidentiary threshold for the substantial evidence standard is not high, . . . [it] is also not merely hortatory: It requires relevant evidence which would lead a reasonable mind to concur in the ALJ's factual determinations." Colgan v. Kijakazi, 22 F.4th 353, 359 (2d Cir. 2022) (quotation marks omitted).
Under the treating physician rule, an ALJ must "defer[] to the medical views of a physician who is engaged in the primary treatment of a claimant . . . in all but a limited range of circumstances." Greek v. Colvin, 802 F.3d 370, 375-76 (2d Cir. 2015). A treating physician's opinion on the nature or severity of an impairment is given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(c)(2). Even if a treating physician's opinion is entitled to less than controlling weight, the ALJ must explicitly consider several factors in determining the proper weight to assign, including: "(1) the frequen[c]y, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist" (the "Burgess factors"), Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (citing Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008)).
Robinson suffers from severe back pain and has been diagnosed with spinal stenosis and degenerative disc disease, among other spinal conditions. Robinson argues that the ALJ erred by giving "[l]ess weight" to key portions of the opinion of his treating physician, Dr. Fregens Duvalsaint, including, first, that Robinson would miss work two to three times each month on average due to his impairments. Administrative Record ("AR") 57. Specifically, the ALJ found that the medical evidence did not support that opinion. But we see no evidence in the record that contradicts Dr. Duvalsaint's opinion. For example, Dr. John Fkiaras, a consultative doctor whose opinion the Commissioner relies on in part, said nothing one way or the other about the frequency with which Robinson would miss work. Dr. Duvalsaint's opinion on this matter thus was not inconsistent with any other substantial evidence in the record, and "[t]he ALJ [was] not permitted to substitute [her] own expertise or view of the medical proof for the treating physician's opinion." Greek, 802 F.3d at 375.
Second, the ALJ likewise found that Dr. Duvalsaint's opinion that Robinson could sit for a maximum of two hours in an eight-hour workday was "unsupported by any objective medical evidence." AR 57. However, Dr. Duvalsaint's opinion was consistent with medical notes from other physicians indicating that Robinson experienced pain in his buttocks and legs, reaching a severity of ten out of ten at its worst, and that "prolonged sitting" contributed to the pain. AR 638. One treating physician also noted that Robinson "appear[ed] uncomfortable" when moving from a seated to standing position. AR 329. Furthermore, Dr. Duvalsaint was the only physician to opine on Robinson's sitting endurance; Dr. Fkiaras did not offer an opinion on the issue. To the extent that Dr. Fkiaras did comment on Robinson's sitting, he generally supported Dr. Duvalsaint's opinion by noting that Robinson was "[a]ble to rise from [a] chair with difficulty." AR 498 (emphasis added). But even then, the ALJ misread Dr. Fkiaras's notation to assert the opposite, that Robinson was able to "rise from a chair without difficulty." AR 54 (emphasis added).
It is true that certain physical therapy records noting that Robinson's sitting was "WFL" or "[w]ithin [f]unctional [l]imits" appear to contradict Dr. Duvalsaint's opinion on this issue. See, e.g., AR 364, 402, 624. Assuming for the sake of argument that these records in fact contradict Dr. Duvalsaint's opinions on these issues, they alone do not render his opinions "inconsistent with the other substantial evidence in [the] case record," in light of the medical evidence that comports with his opinions and the lack of any contrary evidence from another physician. 20 C.F.R. § 404.1527(c)(2). In short, because Dr. Duvalsaint's opinions regarding the number of times per month Robinson would miss work and his sitting endurance are "supported by reliable medical techniques and [] not contradicted by other reasonable evidence in the administrative record," Colgan, 22 F.4th at 360, we conclude that "the ALJ traversed the substance of the treating physician rule" when it found that Dr. Duvalsaint's opinions were entitled to less weight under these circumstances, Estrella v. Berryhill, 925 F.3d 90, 98 (2d Cir. 2019).
For the foregoing reasons, we VACATE the judgment of the District Court and REMAND to the Commissioner for further proceedings consistent with this order.