Persaud v. Comm'r of Soc. SEC.

22-2640
Persaud v. Comm’r of Soc. Sec.
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 2nd day of November, two thousand twenty-three.
4
5 PRESENT:
6 GERARD E. LYNCH,
7 MICHAEL H. PARK,
8 Circuit Judges,
9 ARUN SUBRAMANIAN,
10 District Judge.*
11 _____________________________________
12
13 Ishwar Persaud,
14
15 Plaintiff-Appellant,
16
17 v. 22-2640
18
19 Commissioner of Social Security,
20
21 Defendant-Appellee.
22 _____________________________________
23
24 FOR PLAINTIFF-APPELLANT: CHRISTOPHER JAMES BOWES, Shoreham, NY.
25
26 FOR DEFENDANT-APPELLEE: ANNE M. ZEIGLER, Special Assistant United
27 States Attorney (Ellen E. Sovern, Associate
28 General Counsel, Social Security
29 Administration, on the brief), Baltimore,
* Judge Arun Subramanian, of the United States District Court for the Southern District
of New York, sitting by designation.
1 MD, for Breon Peace, United States Attorney
2 for the Eastern District of New York,
3 Brooklyn, NY.
4
5 Appeal from a judgment of the United States District Court for the Eastern District of New
6 York (Komitee, J.).
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
8 DECREED that the judgment of the district court is VACATED and the case is REMANDED to
9 the district court with instructions to remand the matter to the Commissioner of Social Security
10 (the “Commissioner”) for further proceedings not inconsistent with this order.
11 Ishwar Persaud applied for Social Security Disability Insurance on February 7, 2017, two
12 years after he was injured in a car crash. The Administrative Law Judge (“ALJ”) assigned to his
13 case denied his application, so Persaud sued the Commissioner in the Eastern District of New
14 York. Persaud now appeals the district court’s August 5, 2022 order granting the
15 Commissioner’s motion for judgment on the pleadings and denying Persaud’s. We assume the
16 parties’ familiarity with the underlying facts, procedural history of the case, and issues on appeal.
17 We review a district court’s judgment on the pleadings de novo. Jasinski v. Barnhart,
18 341 F.3d 182, 184 (2d Cir. 2003). “In reviewing an appeal from the denial of disability benefits,
19 we focus on the administrative ruling rather than the district court’s opinion to determine whether
20 the ALJ’s decision was supported by substantial evidence.” Colgan v. Kijakazi, 22 F.4th 353,
21 359 (2d Cir. 2022) (internal quotation marks and citations omitted).
22 Claims filed prior to March 27, 2017 are governed by the “treating physician rule” which
23 states that the “medical opinion of a claimant’s treating physician must be given controlling weight
2
1 if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is
2 not inconsistent with the other substantial evidence in the case record.” Id. (internal quotation
3 marks omitted); see also 20 C.F.R. § 404.1527. An “ALJ must articulate ‘good reasons’ to rebut
4 the presumption of controlling deference conferred on the treating physician’s opinion.” Colgan,
5 22 F.4th at 360. Good reasons are “reasons supported by substantial evidence in the record.”
6 Schillo v. Kijakazi, 31 F.4th 64, 75 (2d Cir. 2022).
7 If the ALJ does not give controlling weight to the treating physician’s opinion, “it must
8 determine how much weight, if any, to give it” by “explicitly consider[ing] the following,
9 nonexclusive Burgess factors: (1) the frequency, length, nature, and extent of treatment; (2) the
10 amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the
11 remaining medical evidence; and (4) whether the physician is a specialist.” Estrella v. Berryhill,
12 925 F.3d 90, 95-96 (2d Cir. 2019) (internal quotation marks and brackets omitted); see also
13 Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008). An ALJ must also give “good reasons” for
14 the weight it gives the treating source other than controlling weight. Estrella, 925 F.3d at 96.
15 “[F]ailure to explicitly apply the Burgess factors when assigning weight at step two is a
16 procedural error.” Id. (internal quotation marks omitted). “If the Commissioner has not
17 otherwise provided good reasons for its weight assessment, we are unable to conclude that the
18 error was harmless and consequently remand for the ALJ to comprehensively set forth its reasons.”
19 Id. (internal quotation marks and brackets omitted). But if “‘a searching review of the record’
20 assures us ‘that the substance of the treating physician rule was not traversed,’ we will affirm.”
21 Id. (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)).
3
1 Here, the ALJ did not explicitly consider the Burgess factors in granting “little weight” to
2 the opinion of Dr. Robert Hecht, Persaud’s treating physician. See generally Administrative
3 Record, Persaud v. Comm’r of Soc. Sec., No. 20-cv-04360-EK, (E.D.N.Y. Apr. 16, 2021), ECF
4 No. 11 (“R.”). That was error. Our review does not assure us that the treating physician rule
5 was applied in substance. The ALJ’s decision fails to indicate that Dr. Hecht was a treating
6 physician. It explains only that Dr. Hecht’s opinion was given “little weight because it is not
7 supported by the objective evidence of record.” R. at 18. Even if the ALJ had provided a
8 sufficient discussion of the evidence supporting and contradicting Dr. Hecht’s opinion, his
9 decision says nothing about the “frequency, length, nature, and extent of treatment,” which was
10 extensive, including roughly thirty-five visits over nearly four years, or about Dr. Hecht’s relevant
11 expertise.
12 In light of the lengthy and regular treating relationship between Persaud and Dr. Hecht, we
13 cannot be sure that the ALJ still would have assigned Dr. Hecht’s opinion “little weight” if he had
14 explicitly applied the Burgess factors. So, the ALJ’s failure to apply the Burgess factors requires
15 remand. We therefore VACATE the judgment of the district court, and REMAND to the district
16 court with instructions to remand to the Commissioner for further proceedings not inconsistent
17 with this order.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk of Court
20
4