Darryl L. Rugless v. Commissioner of Social Security , 548 F. App'x 698 ( 2013 )

13-295-cv
Darryl L. Rugless v. Commissioner of Social Security
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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 19th
day of December, two thousand thirteen.
PRESENT:
Robert A. Katzmann,
Chief Judge,
Ralph K. Winter,
Guido Calabresi,
Circuit Judges.
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Darryl L. Rugless,
Plaintiff-Appellant,
v. No. 13-295-cv
Commissioner of Social Security,
Defendant-Appellee,
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FOR APPELLANT: Karen S. Southwick, Esq., Olinsky Law Group, 300 South
State Street, Suite 420, Syracuse, NY.
FOR APPELLEE: Peter W. Jewett, Esq., Social Security Administration,
26 Federal Plaza, Room 3904, New York, NY.
Appeal from a November 20, 2012 order in the United States District Court for the Western
District affirming the Commissioner of Social Security’s decision to decline to provide Supplemental
Security Income Benefits. (Michael A. Telesca, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be VACATED AND
REMANDED for further proceedings consistent with this order.
Darryl L. Rugless appeals the district court’s order affirming the decision of the
Commissioner of Social Security denying his application for Supplemental Security Income
Benefits. Appellant argues that he is entitled to benefits based on chronic back pain stemming
from an injury he sustained in 1997. Appellant’s application for Supplementary Security Income
Benefits stated that his disability started on December 31, 2008. A hearing was held before an
Administrative Law Judge (“ALJ”), who denied his claim on June 6, 2011. Appellant requested
review of the ALJ decision and on October 26, 2011 the Appeals Council denied his request for
review. Appellant then filed the instant action. The district judge affirmed the Commissioner’s
decision. Appellant now appeals. We assume the parties’ familiarity with the record.
We “may set aside the Commissioner’s determination that a claimant is not disabled only
if the factual findings are not supported by ‘substantial evidence’ or if the decision is based on
legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008), quoting Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000). “When deciding an appeal from a denial of disability benefits, we
focus on the administrative ruling rather than the district court’s opinion.” Moran v. Astrue, 569
F.3d 108, 112 (2d Cir. 2009), quoting Kohler v. Astrue, 546 F.3d 260, 264-65 (2d Cir. 2008). In
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reviewing the administrative record, we must determine “if there is substantial evidence,
considering the record as a whole, to support the Commissioner’s decision and if the correct
legal standards have been applied.” Id. There must be “more than a mere scintilla” of evidence,
and it must be enough that “a reasonable mind might accept [it] as adequate to support a
conclusion.” Burgess, 537 F.3d at 127 (internal quotations and citations omitted).
Appellant contends that the ALJ did not properly defer to Dr. Thomas Carroll, his last
treating physician. Under the treating physician rule, deference is given to the opinions of the
physician who has provided the primary treatment for the patient. Green-Younger v. Barnhart,
335 F.3d 99, 106 (2d Cir. 2003). “SSA regulations advise claimants that a treating source’s
opinion on the issues of the nature and severity of [their] impairments will be given ‘controlling
weight’ if the opinion is well supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.”
Id. (internal quotations and alterations omitted), citing 20 C.F.R. § 404.1527(d)(2); Rosa v.
Callahan, 168 F.3d 72, 78–79 (2d Cir. 1999) (“[T]he ALJ cannot arbitrarily substitute his own
judgment for competent medical opinion.”). While the ALJ deferred to part of Dr. Carroll’s
opinion, she discredited some of it. The ALJ decision states,
[t]he undersigned assigns great weight to Dr. Carrol[l]’s opinion that the claimant needs
provisions for alternating positions because it is consistent with the record. However, the
undersigned assigns little weight to Dr. Carrol[l]’s conclusion that the claimant has
trouble lifting any weight because it is inconsistent with the record and not supported by
any facts or findings.
The ALJ gave only a conclusory explanation of why Dr. Carroll’s opinion regarding appellant’s
ability to lift 10 lbs. is inconsistent with the record.
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We have “consistently held that the failure to provide good reasons for not crediting the
opinion of a claimant’s treating physician is a ground for remand.” Sanders v. Comm’r of Soc.
Sec., 506 F. App’x 74, 77 (2d Cir. 2012); see also Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.
2004) (per curiam). We therefore remand for consideration of the following issues. We need a
more elaborate explanation of the reasons why the ALJ gave little weight to Dr. Carroll’s
opinion. To the extent that the rejection of that opinion was based on the views of other treating
physicians -- appellant does not appear to have a single long-term primary physician -- the ALJ
must describe how those views differed from Dr. Carroll’s -- the differences, if any, are not
obvious -- and why those differing views are of greater weight than Dr. Carroll’s.
In addition, we need some explanation of why there was no discussion in the ALJ’s
decision of Dr. Carroll’s opinion that appellant would have to miss more than four days per
month, would require unscheduled ten to fifteen minute breaks on a daily basis, and would be
off-task more than twenty percent of the workday because of his limitations. The ALJ asked the
testifying vocational expert (“VE”) if any jobs would be available to appellant if “[c]laimant
[was] expected to be off-task more than 20 percent of the day, or would require unscheduled
breaks or would be absent more than three times a month.” The VE replied that “such a person
would have . . . difficulty maintaining competitive work standards.” Thus, the additional
limitations of being off-task, needing unscheduled breaks, and missing unscheduled work days
might be an important factor in determining whether appellant could hold a job such as a cashier
or a parking lot attendant. Some clarification is, therefore, necessary.
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For the foregoing reasons, the district court’s affirmance of the denial of appellant’s
application is hereby VACATED, and the matter is REMANDED to the Commissioner for
proceedings consistent with this order.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
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