Schillo v. Kijakazi ( 2022 )

20-3943-cv
Schillo v. Kijakazi
In the
United States Court of Appeals
For the Second Circuit
August Term, 2021
No. 20-3943-cv
BRENDA LYNN SCHILLO,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of New York.
No. 5:19-cv-00999 — Thérèse Wiley Dancks, Magistrate Judge.
ARGUED: JANUARY 5, 2022
DECIDED: APRIL 6, 2022
AMENDED: APRIL 6, 2022
Before: JACOBS, RAGGI, and NARDINI, Circuit Judges.
Plaintiff-Appellant Brenda Lynn Schillo applied for Social
Security Disability Insurance and Supplemental Security Income
benefits under the Social Security Act, 42 U.S.C. §§ 401–434. After a
hearing, an administrative law judge considered the medical opinions
of Schillo’s treating physicians as well as other evidence. The
administrative law judge denied Schillo’s claim, finding that she was
not disabled under the Social Security Act because she had the
residual functional capacity to perform her past relevant work as a
project manager. That decision became the final decision of the
Commissioner of Social Security. Schillo sought judicial review
before the United States District Court for the Northern District of
New York (Thérèse Wiley Dancks, M.J.), and the district court
affirmed. We AFFIRM because substantial evidence in the record
supports the ALJ’s assignment of less than controlling weight to the
opinions of Schillo’s treating physicians about the nature and severity
of her impairments, and the ALJ’s finding as to Schillo’s residual
functional capacity. Although the ALJ committed a procedural error
when applying the treating physician rule, 20 C.F.R. § 404.1527(c),
which applies to claims like Schillo’s that were filed before March 27,
2017, we hold that the error was harmless.
JUSTIN M. GOLDSTEIN, Law Offices of
Kenneth Hiller, PLLC, Amherst, NY, for
Plaintiff-Appellant.
MOLLY E. CARTER (Michael Pegrio, Regional
Chief Counsel, on the brief), Office of the
General Counsel, Social Security
Administration, Boston, MA, for Defendant-
Appellant.
2
WILLIAM J. NARDINI, Circuit Judge:
The Social Security Act, 42 U.S.C. §§ 401–434, creates a system
of disability insurance and other benefits for qualifying applicants.
The task of determining whether an applicant is disabled and
therefore eligible for benefits is entrusted in the first instance to the
Social Security Administration (“SSA”). If the agency initially denies
an application, the claimant is entitled to request a hearing before an
administrative law judge (“ALJ”). The ALJ is charged with
developing the factual record, conducting a non-adversarial
administrative hearing, and serving as an impartial decisionmaker,
all with the goal of fairly and expeditiously adjudicating claims. For
claims filed before March 27, 2017, the ALJ’s decision must account
for the “treating physician rule”: If the record contains a treating
physician’s opinion about the nature and severity of the claimant’s
impairments, the ALJ must determine whether, in light of the
3
administrative record, that opinion is entitled to controlling weight,
or something less. Congress has authorized federal courts to engage
in limited review of final agency decisions in Social Security disability
cases. We may vacate the agency’s disability determination only if it
is based on legal error or unsupported by “substantial evidence”—
that is, if no reasonable factfinder could have reached the same
conclusion as the ALJ.
In May 2016, Plaintiff-Appellant Brenda Lynn Schillo filed a
claim for Social Security Disability Insurance and Supplemental
Security Income benefits. Schillo claimed disability based on her
medical conditions of cerebral palsy, fibromyalgia, benign tremors,
and osteoarthritis. Schillo relied, in part, on opinions of two of her
treating physicians. After a hearing, an ALJ assigned only partial
weight to the treating physicians’ opinions. Based on all of the
medical evidence in the record, the ALJ determined that Schillo was
not disabled because her residual functional capacity (“RFC”) still
4
allowed her to perform her past relevant work as a project manager.
Schillo challenged this determination through the agency
appeals process and then in the United States District Court for the
Northern District of New York (Thérèse Wiley Dancks, M.J.), but both
times the ALJ’s decision was upheld. She now appeals the denial of
benefits, arguing primarily that (1) the ALJ’s RFC determination (and
particularly the ALJ’s assignment of lesser weight to the treating
physicians’ opinions) was not supported by substantial evidence; and
(2) the ALJ committed procedural error by failing to explicitly
consider certain factors listed in 20 C.F.R. § 404.1527(c) when deciding
how much weight to accord the treating physicians’ opinions.
We find Schillo’s arguments unpersuasive and therefore affirm.
In doing so, we recognize that adjudication of Social Security
disability claims is a highly case-specific endeavor that depends on
the objective medical evidence in the administrative record. Upon
review of this record, we hold that substantial evidence supported the
5
ALJ’s determinations and that any procedural error was harmless.
I. Background
A. Statutory & regulatory framework
Subchapter II of the Social Security Act, 42 U.S.C. §§ 401–434,
sets forth the benefits available to an eligible claimant who is
“disabled.” Under 42 U.S.C. § 423(d)(1)(A), “[a] claimant is disabled
and entitled to disability insurance benefits if she is unable . . . ‘to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.’” Cichocki v. Astrue, 729
F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The
“ultimate finding of whether a claimant is disabled and cannot work
[is] ‘reserved to the Commissioner.’” Snell v. Apfel, 177 F.3d 128, 133
(2d Cir. 1999) (quoting 20 C.F.R. § 404.1527(e)(1) (1991)). To make that
finding, the agency follows a five-step process detailed in 20 C.F.R.
6
§ 404.1520(a)(4)(i)–(v). “If at any step a finding of disability or
nondisability can be made, the [Commissioner] will not review the
claim further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003); see also 20
C.F.R. § 404.1520(a)(4).
Under the five-step process, the Commissioner determines:
(1) whether the claimant is currently engaged in substantial gainful
activity; (2) whether the claimant has a severe physical or mental
impairment, or combination of severe impairments; (3) whether the
impairment (or combination) meets or equals the severity of one of
the impairments specified in 20 C.F.R. Part 404, Subpart P, Appendix
1 (“Listing of Impairments”); (4) whether, based on an assessment of
the claimant’s residual functional capacity, the claimant can perform
any of her past relevant work; and (5) whether the claimant can make
an adjustment to other work given the claimant’s residual functional
capacity, age, education, and work experience. 20 C.F.R.
§ 404.1520(a)(4)(i)–(v). “The claimant bears the burden of proof in the
7
first four steps of the sequential inquiry.” Selian v. Astrue, 708 F.3d
409, 418 (2d Cir. 2013). In step five, the burden shifts, to a limited
extent, to the Commissioner to show that other work exists in
significant numbers in the national economy that the claimant can do.
20 C.F.R. § 404.1560(c)(2); see Poupore v. Astrue, 566 F.3d 303, 306 (2d
Cir. 2009). Because the shift in step five is limited, the Commissioner
“need not provide additional evidence of the claimant’s residual
functional capacity.” Poupore, 556 F.3d at 306; see 20 C.F.R.
§ 404.1560(c)(2).
The ultimate finding of whether the claimant is disabled is
reserved to the agency; but where the record includes the opinions of
treating physicians, “the Social Security Administration considers the
data that [their opinions] provide [and then] draws its own
conclusions as to whether those data indicate disability.” Snell, 177
F.3d at 133. A treating physician’s opinion that the claimant is
disabled may carry particular weight, but it is not itself determinative
8
of that finding. Id.For claims filed before March 27, 2017 (as is the case here), the
agency must apply 20 C.F.R. § 404.1527. Pursuant to that regulation,
the ultimate finding on the claimant’s residual functional capacity is
reserved to the Commissioner. 20 C.F.R § 404.1527(d)(2). In making
that finding, the agency “use[s] medical sources, including [the
claimant’s] treating source, to provide evidence, including opinions,
on the nature and severity of [the claimant’s] impairment(s).” Id. The
agency must follow what is commonly called the “treating physician
rule” when considering the opinion of a claimant’s treating source: If
the agency finds “that a treating source’s medical opinion on the
issue(s) of the nature and severity of [the claimant’s] impairments is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record, [the agency] will give it
controlling weight.” Id. The agency has adopted new regulations for
9
claims filed on or after March 27, 2017, which change how the agency
considers the opinions of treating sources. 1 Accordingly, our
application of the treating physician rule in this opinion is limited to
claims like Schillo’s that were filed before the effective date of the new
regulation and are therefore still governed by 20 C.F.R. § 404.1527.
B. Administrative proceedings
Schillo’s background is laid out in detail in the administrative
record. As relevant here, she received a high school diploma, later
attended vocational school for computer systems operations, and in
1 On January 18, 2017, the Social Security Administration promulgated the
regulations now found at 20 C.F.R. §§ 404.1520c and 416.920c, which apply to
claims filed on or after March 27, 2017. Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5853 (Jan. 18, 2017). For these
cases, the new regulations no longer apply the treating physician rule. See id.(“[W]e are not retaining the treating source rule in final 404.1520c and 416.920c for
claims filed on or after March 27, 2017.”). Going forward, the agency “will not
defer or give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) or prior administrative medical finding(s), including those
from [a claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). The agency will
instead consider the factors found at § 404.1520c(c) during its review of these
sources.
It is undisputed that Schillo filed her claim on May 19, 2016, and that the
earlier regulation therefore applies to this case.
10
2005 obtained a real estate license (which has since expired). Schillo
has worked as a service repair coordinator (the last position she held),
an office assistant, a self-service administrator, a customer service
representative, a data analyst, an accounts payable clerk, and a project
specialist. Schillo has not worked since May 17, 2016. She states that
she stopped working due to chronic pain and fatigue from
fibromyalgia. Through her employer, she was on short-term
disability until November 2016 but was denied long-term disability
benefits.
On May 19, 2016, Schillo filed a claim for Social
Security Disability Insurance and Supplemental Security Income
benefits based on cerebral palsy, fibromyalgia, benign tremors, and
osteoarthritis, alleging a disability onset date of May 17, 2016. The
SSA denied Schillo’s application on August 1, 2016. Schillo then
requested a hearing before an ALJ.
The ALJ held a video hearing on April 11, 2018, at which Schillo
11
was represented by counsel. During the hearing, the ALJ questioned
Schillo about her family and living situation, financial assistance,
employment history, daily activities, medical conditions, and
symptoms she experienced from those conditions. The ALJ
considered the administrative record, which includes MRI results, x-
ray results, and notes documenting Schillo’s visits with different
health care providers, including Arthritis Health Associates and the
Bone and Joint Center. The record also contains notes from Schillo’s
visits with her treating physicians—Dr. Hassan Shukri, her
neurologist, and Dr. Michael Picciano, her primary care provider.
Further, the record contains the opinion of consultative examiner Dr.
Kalyani Ganesh, from whom the SSA’s Division of Disability
Determination had requested an internal medicine examination in
connection with Schillo’s claim for disability.
The ALJ issued her findings of fact and conclusions of law on
May 25, 2018. The ALJ concluded that Schillo had not been under a
12
disability within the meaning of the Social Security Act from May 17,
2016, through the date of the ALJ’s decision. She therefore denied
Schillo’s claim for disability. In reaching this conclusion, the ALJ
made the following findings: First, Schillo met the insured status
requirements of the Social Security Act through December 31, 2021.
Second, Schillo had not engaged in substantial gainful activity since
May 17, 2016. Third, Schillo had the following severe impairments:
fibromyalgia, Charcot-Marie-Tooth disease, essential tremor, and
osteoarthritis. Fourth, Schillo did not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in the Listing of
Impairments. Fifth, Schillo had the residual functional capacity to lift,
carry, push, or pull twenty pounds occasionally and ten pounds
frequently, sit for six hours, and stand and/or walk for six hours in an
eight-hour day. She could frequently balance and stoop; occasionally
kneel, crouch, climb ramps, climb stairs, and operate foot controls;
13
and never crawl or climb ladders, ropes, or scaffolds. Schillo could
have no exposure to vibration or workplace hazards, including
unprotected heights and moving mechanical parts. She could
frequently handle, finger, and feel with her dominant right hand, and
she could occasionally handle, finger, and feel with her non-dominant
left hand. Lastly, Schillo was capable of performing past relevant
work as a project manager, because it did not require the performance
of work-related activities precluded by Schillo’s RFC.
In assessing Schillo’s RFC, the ALJ weighed the opinions of her
treating physicians and determined that they should not be afforded
controlling weight. First, the ALJ addressed the conclusory nature of
Dr. Shukri’s opinions. On May 19, 2016, Dr. Shukri opined that most
of Schillo’s symptoms will “get worse with age” making it “very
difficult for her to do any physical job”; Dr. Shukri thus noted that
Schillo could “[m]aybe . . . qualify for social security disability.”
Admin. R. on Appeal at 285. On October 5, 2016, Dr. Shukri opined
14
that Schillo “is unable to perform any job because of [her] tremor.” Id.
at 486. And on more than one occasion Dr. Shukri concluded that
Schillo is “permanently totally disabled.” Id. at 356; see also id. at 487
(“For now we will consider her permanently totally disabled because
of the tremor and the spasticity in bilateral lower extremities.”). The
ALJ found that those opinions were “conclusory” and “did not speak
to [Schillo’s] specific physical capabilities or limitations.” App’x at 75.
The ALJ also found the terms Dr. Shukri used—such as “physical
job,” “very difficult,” and “might qualify”—to be “vague, undefined
terms with regard to the determination of an individual’s residual
functional capacity and therefore open to interpretation, giving them
little utility in making such a determination.” Id. Accordingly, the
ALJ afforded little weight to these opinions.
Second, the ALJ found inconsistencies between Dr. Shukri’s
opinions and the objective medical evidence, which included his own
treatment notes. The ALJ highlighted that Dr. Shukri had concluded
15
that Schillo’s bilateral hand tremors “would make fine manipulation
impossible,” but “[t]he medical record shows [Schillo] generally has
mild right-sided tremors and mild to moderate left-sided tremors,
which does not suggest a total inability to engage in fine manipulation
with either hand.” App’x at 75–76. The ALJ further pointed to
Schillo’s own testimony establishing her ability to engage “in several
activities that require fine manipulation, including driving a vehicle,
dressing, bathing, preparing meals, doing chores, and using a
cellphone.” Id. at 76. In sum, because the ALJ found Dr. Shukri’s
opinions to be an “overstatement” of Schillo’s manipulative
limitations, the ALJ afforded his opinions partial weight and assigned
limitations on Schillo’s RFC that “are more commensurate with the
objective evidence.” Id.
The ALJ also gave partial weight to the opinions of Dr. Picciano.
Most of Dr. Picciano’s opinions of Schillo’s RFC were submitted in
February 2018 on a check-marked worksheet endorsing specific
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limitations with almost no explanation. According to this worksheet,
Schillo (1) experiences for over 30% of the workday symptoms severe
enough to interfere with the attention and concentration needed to
perform simple work tasks; (2) cannot walk more than one city block
without experiencing pain or needing to rest; (3) can sit for only ten
minutes before needing to get up; (4) can stand for no more than
twenty minutes before needing to sit down; (5) cannot “sit and
stand/walk” for more than two hours in an eight-hour workday (with
normal breaks); (6) needs a job that permits shifting positions at will
from sitting, standing, or walking; (7) needs ten-minute breaks each
hour of an eight-hour workday; (8) can lift items weighing less than
ten pounds only occasionally; (9) can use her right hand for gross
manipulation for 20% of the workday and for fine manipulation for
10% of the workday, but can never use her left hand for gross or fine
manipulation; and (10) on average will likely be absent from work for
more than four days per month as a result of her impairments.
17
Admin. R. on Appeal at 407–09. That same month, Dr. Picciano
opined that Schillo “is unable to work and has been unable to work
since 5/2016 due to the effects of multiple neurological and
musculoskeletal disorders.” Id. at 410. The ALJ afforded some weight
to Dr. Picciano’s opinions because they “support[ed] some measure
of exertional, postural, and manipulative limitations, which [were]
consistent with the longitudinal record.” App’x at 76. But, like Dr.
Shukri’s opinion, the ALJ found that the manipulative limitations
suggested by Dr. Picciano did “not match up with the evidence
showing mild tremor symptoms and sensory deficits in the right
dominant hand and mild to moderate symptoms in the left.” Id.
Accordingly, because the ALJ found that Dr. Picciano’s opinions
deviated from the objective medical evidence, they were entitled to
no more than partial weight. Id.
Finally, the ALJ gave little weight to the opinion of the
consultative examiner, Dr. Ganesh, that Schillo’s overall movements
18
were very brisk and that she had no physical difficulties. Dr.
Ganesh’s examination of Schillo had resulted in few abnormal
findings. The ALJ concluded that this was inconsistent with the
longitudinal evidence, which instead indicated “ongoing problems
with hand tremors, neuropathic symptoms, and fibromyalgia, all of
which contribute to functional limitations.” Id. at 76–77. Although
the ALJ found that the opinions of Schillo’s treating physicians
overstated Schillo’s limitations in light of the objective evidence, the
ALJ gave them more weight than the opinion of Dr. Ganesh because
they were “more consistent with a preponderance of the evidence
than [Dr. Ganesh’s finding of] no limitations at all.” Id.
C. Review of the ALJ’s decision
Schillo sought review of the ALJ’s May 25, 2018, decision by the
SSA’s Appeals Council. The Appeals Council denied her request on
January 15, 2019, making the ALJ’s decision the final decision of the
Commissioner. On August 12, 2019, Schillo filed a complaint in the
19
United States District Court for the Northern District of New York
seeking judicial review of the Commissioner’s decision. The district
court issued a memorandum decision and order affirming the
Commissioner’s denial of Schillo’s application for Social Security
benefits on September 29, 2020, and entered judgment that same day.2
On November 20, 2020, Schillo filed this timely appeal.
II. Standard of review
Congress has authorized federal courts to engage in limited
review of final SSA disability benefit decisions. “On an appeal from
the denial of disability benefits, we focus on the administrative ruling
rather than the district court’s opinion.” Estrella v. Berryhill, 925 F.3d
90, 95 (2d Cir. 2019) (internal quotation marks omitted). That is
because the same standard of review applies to the agency’s decision,
both in the district court and before a court of appeals: “The findings
of the Commissioner of Social Security as to any fact, if supported by
2 On September 6, 2019, Schillo consented to the jurisdiction of a magistrate
judge.
20
substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g).
“We conduct a plenary review of the administrative record to
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.” Estrella, 925 F.3d at 95 (internal
quotation marks omitted). The “substantial evidence” standard is “a
very deferential standard of review—even more so than the ‘clearly
erroneous’ standard.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443,
448 (2d Cir. 2012). “Indeed, it is not our function to determine de novo
whether a plaintiff is disabled.” Id. at 447 (alterations and internal
quotation marks omitted). “Substantial evidence” is “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
quotation marks omitted); see also Brault, 683 F.3d at 448. “In
determining whether the agency’s findings were supported by
substantial evidence, the reviewing court is required to examine the
21
entire record, including contradictory evidence and evidence from
which conflicting inferences can be drawn.” Selian, 708 F.3d at 417
(internal quotation marks omitted). “If evidence is susceptible to
more than one rational interpretation, the Commissioner’s conclusion
must be upheld.” McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014).
“The substantial evidence standard means once an ALJ finds facts, we
can reject those facts ‘only if a reasonable factfinder would have to
conclude otherwise.’” Brault, 683 F.3d at 448 (emphasis added in Brault)
(quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994)). We
“require that the crucial factors in any determination be set forth with
sufficient specificity to enable us to decide whether the determination
is supported by substantial evidence.” Estrella, 925 F.3d at 95
(alterations and internal quotation marks omitted).
III. Discussion
Schillo advances two related arguments, both of which turn on
the treating physician rule. She contends first that the ALJ’s RFC
22
determination was not supported by substantial evidence because
what the ALJ articulated as “good reasons” for discounting the
treating physicians’ opinions were not, in fact, backed up by the
record. Schillo’s second argument is essentially procedural: that in
spelling out “good reasons” for according less than controlling weight
to the treating physicians’ opinions, the ALJ failed to expressly walk
through certain mandatory factors outlined in 20 C.F.R. § 404.1527.
As our precedents have held, when applying 20 C.F.R.
§ 404.1527, there are “specific procedures that an ALJ must follow in
determining the appropriate weight to assign a treating physician’s
opinion. First, the ALJ must decide whether the opinion is entitled to
controlling weight.” Estrella, 925 F.3d at 95. The opinion of a
claimant’s treating physician as to the nature and severity of the
impairment is given controlling weight so long as it is well supported
by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with (or contradicted by) other substantial
23
evidence in the claimant’s case record. See Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008); 20 C.F.R. § 404.1527(c)(2). “[T]he ALJ cannot
arbitrarily substitute his own judgment for competent medical
opinion,” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (internal
quotation marks omitted); rather, the ALJ’s assessment of the relevant
opinion must always be supported by substantial evidence in the
record. “Second, if the ALJ decides the opinion is not entitled to
controlling weight, it must determine how much weight, if any, to
give it.” Estrella, 925 F.3d at 95. The governing regulations require an
ALJ to explicitly consider certain nonexclusive factors when making
this determination: “(1) the frequency, 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.” Id. at 95–96
(alterations and internal quotation marks omitted) (summarizing 20
C.F.R. § 404.1527(c)). Even though this list of considerations is
24
established by regulation, we discussed them at length in Burgess v.
Astrue, 537 F.3d at 129, and so they are sometimes referred to as the
“Burgess factors.”
At both steps, the regulations require the ALJ to give “good
reasons”—i.e., reasons supported by substantial evidence in the
record—for the weight she affords the treating source’s medical
opinion. See Estrella, 925 F.3d at 96; see also 20 C.F.R. § 404.1527(c)(2).
Indeed, our Court did not hesitate to remand in our recent decision in
Colgan v. Kijakazi, where the ALJ failed to provide good reasons at step
one for discounting a treating physician’s opinion. 22 F.4th 353, 360
(2d Cir. 2022). The ALJ there erroneously relied on a “one-time
snapshot” of the claimant’s mental health status to find that the
physician’s opinion was inconsistent with the objective medical
evidence. Id. at 362.
If the ALJ proceeds to step two, she must explicitly apply the
factors listed in § 404.1527; the failure to do so is procedural error and
25
subject to harmless error analysis. Estrella, 925 F.3d at 95–96; Colgan,
F.4th at 359 n.3. A court can conclude that such an error is harmless
if the ALJ has otherwise provided “good reasons” for its weight
assignment. See Estrella, 925 F.3d at 96. For instance, our Court has
upheld an ALJ’s denial of disability benefits even where the ALJ’s
written opinion failed to assist our review on appeal and did not
“generate much confidence in the result.” Halloran v. Barnhart, 362
F.3d 28, 31–33 (2d Cir. 2004). In Halloran, it was “unclear on the face
of the ALJ’s opinion whether the ALJ considered (or even was aware
of) the applicability of the treating physician rule,” but the Court
concluded, “[a]fter carefully considering the entire record and the
ALJ’s opinion,” that the ALJ had applied the substance of the rule. Id.
at 32. The ALJ explained that the treating physician’s two key
findings were conclusory given that he provided them on an
“uninformative response to a multiple-choice question about [the
claimant’s] ability to sit,” and that he “did not address the question of
26
whether [the claimant] could do the job if given several breaks or
allowed to change position often.” Id. (internal quotation marks
omitted). The ALJ’s explanation thereby struck the Court as an
application of the substance of the treating physician rule. See also
Estrella, 925 F.3d at 96 (where “‘a searching review of the record’
assures us ‘that the substance of the treating physician rule was not
traversed,’ we will affirm” (quoting Halloran, 362 F.3d at 32)).
A. The ALJ’s RFC assessment was supported by
substantial evidence
We turn first to Schillo’s claim that the ALJ’s assessment of the
treating physicians’ opinions, and ultimately of her RFC, was
unsupported by substantial evidence. Here, at step one, the ALJ did
not afford controlling weight to the opinions of Schillo’s treating
physicians. 3 We hold that the reasons the ALJ provided—that their
3 Although the ALJ here did not expressly state that she would not afford
“controlling” weight to the opinions of Schillo’s treating physicians, that much is
clear given that the ALJ ultimately concluded that Dr. Shukri’s opinions would
receive little and partial weight and that Dr. Picciano’s opinions would receive
partial weight.
27
opinions were conclusory, unhelpful with respect to assessing RFC,
and inconsistent with the objective medical evidence—were “good
reasons” supported by substantial evidence.
The ALJ reasonably determined that Dr. Shukri’s conclusory
opinion that Schillo was disabled was not entitled to controlling
weight. Dr. Shukri’s statement—standing alone—cannot be
determinative of Schillo’s disability status. See Snell, 177 F.3d at 133.
And what accompanies Dr. Shukri’s opinion are conclusory words as
to how Schillo will “[m]aybe qualify” for disability benefits and that
it might be “very difficult” for her to do any “physical job.” Admin.
R. on Appeal at 285. The ALJ was entitled to conclude that these
statements were too vague to be of much help in a concrete
assessment of Schillo’s RFC, and that Dr. Shukri’s opinion was
therefore entitled to only limited weight.
Schillo contends that “the ALJ was duty bound to obtain a more
detailed and clarified statement from Dr. Shukri before rejecting
28
statements due to ‘vague, undefined terms.’” Appellant’s Br. at 49.
We disagree. To be sure, a hearing on disability benefits is a non-
adversarial proceeding. An ALJ generally has an affirmative duty to
develop the administrative record, including when there are
deficiencies in the record. Burgess, 168 F.3d at 79; Rosa, 168 F.3d at 79.
But a deficiency in reasoning by a treating physician is not the same
as a gap in treatment records. In other circumstances, we have
concluded that an ALJ should have sought additional information to
fill a record consisting only of sparse and conclusory notes of a single
treating physician. Rosa, 168 F.3d at 79–80; see also Pratts v. Chater, 94
F.3d 34, 38 (2d Cir. 1996) (concluding that the record offered “no basis
to find the substantial evidence necessary to uphold the ALJ’s
decision” given that much of the claimant’s medical history was
missing and that the medical records appearing in the record were
frequently incomplete or illegible, providing “no coherent overview
of [the claimant’s] treatment”). Here, by contrast, there was a
29
complete record before the ALJ consisting of medical opinions,
treatment notes, and test results from 2016 to 2018, as well as Schillo’s
own testimony. The ALJ pointed to specific portions of the record
that undercut Dr. Shukri’s opinion that Schillo had a total inability to
manipulate both hands. Schillo has not identified any missing
medical records that should have been included in the record, and we
are aware of none. Accordingly, the ALJ did not err in failing to
supplement the administrative record.
Similarly, the ALJ provided good reasons for not affording
controlling weight to Dr. Picciano’s check-box form medical opinion.
As we recently made clear, there is no rule that “the evidentiary
weight of a treating physician’s medical opinion can be discounted by
an ALJ based on the naked fact that it was provided in a check-box
form.” Colgan, 22 F.4th at 361. An ALJ may, however, discount a
treating physician’s opinion—regardless of its form—if it is not
supported by substantial evidence in the record. For example, in
30
Halloran, the treating physician’s medical report was “prepared on a
standardized, multiple-choice ‘New York State Office of Temporary
and Disability Assistance’ Form, which elicits information about the
patient’s ability to do work-related physical activities.” Halloran, 362
F.3d at 31. “Among other designations,” the treating physician
checked a box stating that the claimant “could sit for ‘less than 6 hours
per day.’” Id. Because the treating physician’s opinions “were not
particularly informative and were not consistent with those of several
other medical experts,” we concluded that they were not entitled to
controlling weight. Id. at 32. Conversely, we recently vacated an
ALJ’s decision not to afford controlling weight to a treating
physician’s check-box form opinion. Colgan, 22 F.4th at 362. As we
explained in Colgan: “In contrast to the medical report at issue in
Halloran—which completely lacked any supporting evidence in the
medical record—[the treating physician’s] check-box form opinion
[here] was supported by voluminous treatment notes gathered over
31
the course of nearly three years of clinical treatment.” Id. (emphasis
added).
On balance, Dr. Picciano’s opinion is more akin to that of the
treating physician in Halloran: it deviates from the consistent 2016 to
2018 medical evidence showing only mild tremor symptoms and
sensory deficits in Schillo’s right dominant hand and mild to
moderate symptoms in Schillo’s left hand. 4 The ALJ found notable
inconsistencies between Dr. Picciano’s conclusions and the
longitudinal records of Schillo’s physical health—parsing through
4 Further, Schillo’s testimony about her daily activities—including her
ability to do chores around her house, bathe, dress, and use her cellphone—lends
some support to the ALJ’s findings that both Drs. Shukri’s and Picciano’s opinions
are inconsistent with the objective medical evidence. Of course, “[w]hen a
disabled person gamely chooses to endure pain in order to pursue important
goals, . . . it would be a shame to hold [that] endurance against him in determining
benefits unless his conduct truly showed that he is capable of working.” Colgan, 22 F.4th
at 363 (emphasis added) (internal quotation marks omitted). Schillo did not testify
that she persevered through tremors or pain when completing all activities. For
instance, she reported no difficulty with fine or gross hand or finger manipulation
when doing her laundry, cleaning her home, or doing the dishes. Regardless of
whether this testimony standing alone could have been sufficient to accord lesser
weight to the treating physicians’ opinions, it bolsters what the ALJ found after a
thorough review of the record: that during the relevant period, Schillo did not
have a total inability to use her hands such that it would have precluded her from
performing her past relevant work.
32
each data point and thus not resting the disability determination on
an unrepresentative “one-time snapshot” of Schillo’s status. See, e.g.,
Colgan, 22 F.4th at 362; Estrella, 925 F.3d at 97–98. In short, substantial
evidence supported the ALJ’s decision to afford only limited weight
to the opinion of Dr. Picciano. 5 We therefore cannot second-guess
that decision on appeal. See Brault, 683 F.3d at 448.
Having concluded that the ALJ’s assignment of lesser weight to
Drs. Shukri’s and Picciano’s medical opinions was permissible, we
also hold that substantial evidence supports the ALJ’s ultimate RFC
determination. As the ALJ accorded the treating physicians’ opinions
5 We note that the ALJ gave even less weight to the opinion of the
consultative examiner, compared to the opinions of Drs. Shukri and Picciano. See
App’x at 77 (“I gave more weight to the opinions of the claimant’s treating
physicians who, although they overstated the claimant’s limitations in light of the
objective evidence, were more consistent with a preponderance of the evidence
than no limitations at all.”). “[W]e have frequently cautioned that ALJs should not
rely heavily on the findings of consultative physicians after a single examination,”
and so it can be problematic when an ALJ affords them more weight than a treating
physician’s findings. Colgan, 22 F.4th at 363 (internal quotation marks omitted);
see also Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990). That is not an issue here,
where the ALJ engaged in a careful comparative assessment of the various medical
opinions in the record and accorded relatively more (though ultimately non-
determinative) weight to the opinions of the treating physicians.
33
lesser and not no weight, she still considered their conclusions to
assess Schillo’s RFC. The ALJ also looked to the other sources in the
administrative record, including MRI results, x-ray results, and notes
documenting Schillo’s visits with other medical providers. Using
these opinions and data points, the ALJ laid out with specificity
Schillo’s physical capabilities. See supra pps. 13–14; see also Estrella,
925 F.3d at 95. Under our very deferential standard of review, see
Brault, 683 F.3d at 448, we cannot say that no reasonable factfinder
could have reached the same conclusion—that an assessment of
Schillo’s RFC showed that she could perform her past relevant work
as a project manager.
In reaching this conclusion, we also reject Schillo’s argument
that, having declined to afford controlling weight to any of the three
physicians’ opinions, the ALJ was thereby prohibited from making an
RFC finding whatsoever. The ALJ is permitted to discount the
opinion of a treating physician if it is inconsistent with other
34
substantial evidence. See Halloran, 362 F.3d at 32. And the ALJ bears
“the final responsibility” for making RFC determinations. 20 C.F.R.
§ 404.1527(d)(2). It follows from these basic principles that the ALJ’s
RFC conclusion need not perfectly match any single medical opinion
in the record, so long as it is supported by substantial evidence. See
Richardson, 402 U.S. at 399 (“We therefore are presented with the not
uncommon situation of conflicting medical evidence. The trier of fact
has the duty to resolve that conflict.”). In so holding, we here reiterate
a point that this Court has previously made summarily. See Matta v.
Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (stating that an ALJ’s
conclusions need not “perfectly correspond with any of the opinions
of medical sources cited in his decision” because the ALJ is “entitled
to weigh all of the evidence available to make an RFC finding that [is]
consistent with the record as a whole”).
B. The ALJ’s procedural error was harmless
Next, we consider Schillo’s claim that the ALJ committed an
35
error of law by failing to follow the correct procedures when applying
the treating physician rule. Once the ALJ decided not to afford
controlling weight to the treating physicians’ opinions, she was
required to explicitly review the factors listed in 20 C.F.R.
§ 404.1527(c) to determine what (if any) lesser weight to give those
opinions. See Burgess, 537 F.3d at 129. As the agency concedes, the
ALJ failed to consider each factor explicitly and thereby committed a
procedural error.
But this is not the end of the road. Our examination of the
record discloses that the ALJ nevertheless applied the substance of the
treating physician rule. The ALJ’s written decision effectively
covered the factors listed in 20 C.F.R. § 404.1527(c)(2), including the
nature of the examining and treating relationships, the supportability
of the opinions, their consistency with the record as a whole, and the
doctors’ specialization. With respect to Dr. Shukri’s background and
proffered medical opinions, the ALJ explained that Dr. Shukri treated
36
Schillo from May 2016 into 2017; that Dr. Shukri’s opinion that
Schillo’s bilateral hand tremors would make fine manipulation
impossible was inconsistent with the objective findings and Schillo’s
reported activities; and that Dr. Shukri, as a neurologist, is a specialist.
As to Dr. Picciano, the ALJ similarly explained that Dr. Picciano
treated Schillo between 2016 and 2018; that Dr. Picciano’s opinion
with respect to Schillo’s hand and finger manipulation deviated
significantly from the objective evidence; and that Dr. Picciano is not
a specialist. 6 Furthermore, in assessing Schillo’s RFC, the ALJ
articulated that although the body of medical evidence in the record
supports the treating physicians’ opinions to the extent they
concluded that Schillo had some physical limitations (which is why
the ALJ still afforded some weight to their opinions), that evidence
did not suggest that those limitations were so complete as to render
6We glean this from the fact that the ALJ specified Dr. Shukri’s specialty—
neurology—and omitted a specialty in her discussion of Dr. Picciano’s opinions.
Further, the record makes clear that Dr. Picciano is Schillo’s primary care
physician, not a specialist. See, e.g., Admin. R. on Appeal at 301, 424.
37
her disabled. For instance, the ALJ detailed how “[d]uring a detailed
neurological examination, the claimant demonstrated no resting
tremors, but she had mild to moderate low-amplitude action hand
tremors that were worse on the left, with minimal to mild impairment
in drawing and writing.” App’x at 74; see, e.g., id. (summarizing
results from Schillo’s examinations in 2017, including that Schillo
presented no tremors or involuntary movements and a normal gait
despite limited range of cervical motion bilaterally and that she was
doing notably well on her medication).
Accordingly, although the ALJ should have proceeded more
methodically through the factors enumerated in § 404.1527(c)(2), it is
evident that she “applied the substance of the treating physician
rule.” Halloran, 362 F.3d at 32. The ALJ articulated “good reasons”
for assigning little weight and partial weight to Dr. Shukri’s opinions
and partial weight to Dr. Picciano’s opinions: their opinions were
conclusory, inconsistent with the objective medical evidence, and
38
unhelpful in assessing Schillo’s RFC. The procedural error was
therefore harmless. See Estrella, 925 F.3d at 96.
We have considered Schillo’s remaining arguments and
conclude that they lack merit.
IV. Conclusion
To summarize, we hold as follows:
1. Substantial evidence in the record supports (a) the
ALJ’s assignment of less than controlling weight to the opinions
of Schillo’s treating physicians about the nature and severity of
her impairments pursuant to 20 C.F.R. § 404.1527, and (b) the
ALJ’s finding that Schillo retained the residual functional
capacity to perform her previous work as a project manager.
2. The ALJ committed procedural error by failing to
explicitly apply each of the factors listed in 20 C.F.R.
§ 404.1527(c) when determining what weight to assign the
opinions of Schillo’s treating physicians. But that error was
39
harmless because the record establishes that the ALJ
nevertheless applied the substance of the treating physician
rule.
For the foregoing reasons, we AFFIRM the judgment of the
district court affirming the Commissioner’s denial of Schillo’s
application for Social Security Disability Insurance and Supplemental
Security Income benefits.
40