Opinion
CV 20-239 (GRB)
2021-01-27
Anthony Michael STEWART, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Charles E. Binder, Law Offices of Charles E. Binder and Harry J. Binder, LLP, New York, NY, for Plaintiff. Anne Zeigler, Frank D. Tankard, Social Security Administration Office of the General Counsel, Kansas City, MO, for Defendant.
Charles E. Binder, Law Offices of Charles E. Binder and Harry J. Binder, LLP, New York, NY, for Plaintiff.
Anne Zeigler, Frank D. Tankard, Social Security Administration Office of the General Counsel, Kansas City, MO, for Defendant.
MEMORANDUM & ORDER
GARY R. BROWN, United States District Judge:
In this appeal of a denial of Social Security disability benefits, plaintiff moves for judgement on the pleadings, assigning numerous errors to the decision of the ALJ, DE 17, while the Commissioner cross-moves for judgement on the pleadings. DE 18. Review of the administrative transcript and the ALJ's decision reveal significant procedural errors in the ALJ's determination. DE 9.
In the decision, the ALJ determined that the plaintiff does not suffer from a disability, but this conclusion is predicated on several curious – and plainly improper – considerations. First, contrary to existing caselaw and regulation, the ALJ accords "great weight" to the opinion of a non-examining state agency psychiatrist. Tr. at 20-21 . Notably, the Second Circuit has "frequently ‘cautioned that ALJs should not rely heavily on the findings of consultative physicians after a single examination,’ " a "concern ... even more pronounced in the context of mental illness where, as discussed above, a one-time snapshot of a claimant's status may not be indicative of [his or] her longitudinal mental health." Estrella v. Berryhill , 925 F.3d 90, 98 (2d Cir. 2019) (citation omitted). Here, the ALJ accorded great weight to the opinion of a psychiatrist who never examined the plaintiff, plainly in contravention of law and regulations. See 20 C.F.R. § 416.927 (when determining the weight to give a nonexamining physician's opinion, the ALJ should consider the same factors used when evaluating a treating physician's opinion, including the nature of the treatment relationship, the consistency of the opinion with the record as a whole, and whether the opinion is given by a specialist); Velazquez v. Barnhart , 518 F. Supp. 2d 520, 524 (W.D.N.Y. 2007) ("In the context of a psychiatric disability diagnosis, it is improper to rely on the opinion of a non-treating, non-examining doctor because the inherent subjectivity of a psychiatric diagnosis requires the physician rendering the diagnosis to personally observe the patient.").
References to "Tr." are to the Transcript of the Administrative Record filed in this case.
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Equally troubling is the ALJ's rejection of the medical evidence provided by treating sources. The ALJ accorded "no weight" to the opinion of a treating social worker which, all things being equal, may have been appropriate. Tr. at 22. However, the ALJ used findings from the social worker – to whom he accorded no weight – to discount the determinations made by plaintiff's treating psychiatrist. Id. In any event, the ALJ accorded "partial weight" to the opinions of the treating psychiatrist, while failing to explicitly consider the "Burgess factors" as required by Second Circuit precedent. Estrella , 925 F.3d at 95-96. Thus, the matter must be remanded for further consideration.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for judgment on the pleadings is granted, defendant's cross-motion is denied, and the matter is REMANDED to the Commissioner for further consideration and, if appropriate, further development of the record consistent with this opinion.