BELLEHSEN v. COMMISSIONER OF SOCIAL SECURITY (2021)

United States Court of Appeals, Second Circuit.2021-07-06No. No. 20-2566

Summary · law.co

Holding. The district court's judgment affirming the Commissioner's denial was vacated and the case was remanded to the ALJ for a procedurally correct reconsideration that properly applies the legal standards for evaluating treating physician opinions.

Ani Bellehsen appealed the denial of her applications for child disability benefits and supplemental security income, arguing that an administrative law judge improperly rejected opinions from her long-term treating psychiatrist, Dr. Stanley Hertz. Dr. Hertz had treated Bellehsen approximately monthly from 2011 to 2018 for conditions including anxiety, panic attacks, depression, bipolar disorder, and borderline personality disorder. Instead, the ALJ gave greater weight to a one-time evaluation by a consulting psychologist.

The court found that the ALJ failed to follow the required two-step procedure for evaluating treating physician opinions. First, the ALJ did not properly assess whether Dr. Hertz's opinions qualified for controlling weight by examining whether they were well-supported by medical evidence. Second, when deciding to give Dr. Hertz's opinions only limited weight, the ALJ did not explicitly consider the relevant factors—including the frequency and length of treatment, the amount of supporting medical evidence, consistency with other evidence, and the physician's specialty status. The ALJ's bare acknowledgment of the long treatment relationship was insufficient.

The court rejected the argument that any error was harmless. Medical records supported Dr. Hertz's opinions regarding Bellehsen's condition, and while some periods of stability were documented, the cyclical nature of mental illness meant an ALJ cannot simply isolate moments of improvement to discount a treating physician's overall assessment without proper analysis. The ALJ also failed to seek clarification from Dr. Hertz about any apparent inconsistencies before rejecting his opinion.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an ALJ must give controlling weight to a treating physician's opinion
Proper application of factors in assigning weight to non-controlling treating physician opinions
Treatment of cyclical symptoms in mental illness cases
ALJ's duty to develop the record by seeking clarification from treating physicians

Procedural posture

Bellehsen appealed the district court's affirmance of the Commissioner's denial of her disability benefits applications.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

SUMMARY ORDER

Plaintiff-Appellant Ani D. Bellehsen appeals from the district courts decision affirming the Commissioner of Social Securitys denial of her applications for child disability benefits and supplemental security income (“SSI”) under Titles II and XVI, respectively, of the Social Security Act (“SSA” or “the Act”). See 42 U.S.C. §§ 401–434, 1381–1383. On appeal, Bellehsen argues that the administrative law judge (the “ALJ”), who found she was not disabled within the meaning of the SSA, erred by failing to give controlling weight to the opinion of her longtime treating psychiatrist, Dr. Stanley Hertz, and by failing to provide good reasons for its decision to afford Dr. Hertzs opinions “some weight, but not great weight.” ROA 15. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to which we refer only as necessary to explain our decision to vacate and remand.

The ALJ must afford the opinion of a treating physician controlling weight if it is well-supported by medical evidence and “not inconsistent with the other substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2); see Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir. 1999).

Under our precedent, the ALJ must follow a two-step procedure to determine the appropriate weight to assign the treating physicians opinion. Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). At step one, “the ALJ must decide whether the opinion is entitled to controlling weight.” Id. (citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). At step two, “if the ALJ decide[d] the opinion is not entitled to controlling weight, it must determine how much weight, if any, to give it.” Id. In so doing, the ALJ “must explicitly consider the ․ Burgess factors.” Id. These are: “(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; see also Burgess, 537 F.3d at 129.

“[F]ailure to explicitly apply the Burgess factors when assigning weight at step two is a procedural error.” Estrella, 925 F.3d at 96. Unless the ALJ has “provided good reasons for its weight assignment, we are unable to conclude that the error was harmless and consequently remand for the ALJ to comprehensively set forth its reasons.” Id. Even so, “[i]f ․ a searching review of the record assures us that the substance of the treating physician rule was not traversed, we will affirm.” Id.

In Bellehsens case, the ALJ did not give controlling weight to the opinions of Dr. Hertz, who had treated Bellehsen on roughly a monthly basis from 2011 to 2018.

The ALJ gave Dr. Hertzs opinions “some weight, but not great weight,” explaining that in his view those opinions “were not consistent with the medical evidence, which supports a less severe degree of limitation.” ROA 15. Instead, the ALJ gave “great weight” to the opinion of consulting psychologist Dr. Kathleen Acer, who examined Bellehsen on one occasion, on December 28, 2015. ROA 14.

In deciding not to give Dr. Hertzs opinions controlling weight, the ALJ did not address whether those opinions were “well-supported by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1527(c)(2). And in deciding to give Dr. Hertzs opinions no more than “some weight,” the ALJ noted only that Dr. Hertzs opinions “were based on multiple examinations over a prolonged period of time,” without explicitly considering any of the other three Burgess factors. ROA 15. This was error. Estrella, 925 F.3d at 96; see also Ferraro v. Saul, 806 F. Appx 13, 15 (2d Cir. 2020) (“[M]erely acknowledging the existence of treatment relationships is not the same as explicitly considering the frequency, length, nature, and extent of treatment.”). We agree with Bellehsen that the ALJs opinion was fundamentally flawed by its failure to apply the Burgess factors and to provide good reasons for not giving Dr. Hertzs opinions controlling weight.

Moreover, a “searching review of the record” does not “assure[ ] us that the substance of the treating physician rule was not traversed.” Estrella, 925 F.3d at 96. Bellehsens medical records show that, over an extended period of time, she was treated—including through medication—for anxiety, panic attacks, depression, bipolar disorder, and borderline personality disorder, consistent with Dr. Hertzs opinions. It is true, as the Commissioner points out, that the record also reflects times during which Bellehsens mood was stable and she reported no excessive anxiety. But given the cyclical nature of much mental illness, we cannot decide based on the cold record before us whether these examples of improvement provide a sufficient reason to discount Dr. Hertzs opinions. Cf. Estrella, 925 F.3d at 97 (“Cycles of improvement and debilitating symptoms of mental illness are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.”). Furthermore, “[i]f an ALJ perceives inconsistencies in a treating physicians reports, the ALJ bears an affirmative duty to seek out more information from the treating physician and to develop the administrative record accordingly” before rejecting the opinion. Rosa, 168 F.3d at 79. We are therefore not reassured by these intermittent observations of remission that, “had the ALJ complied with the procedural mandates of the treating physician rule,” it would still have declined to assign controlling weight to Dr. Hertzs opinion. Estrella, 925 F.3d at 98.

We commend the district court for its thorough analysis of the administrative record following its determination that the ALJ erred in the ways we have described. Ultimately, however, this Court reviews the “administrative ruling rather than the district courts opinion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). For the reasons outlined above, the ALJs analysis fell short of what is required, and we are unable to conclude that the error was harmless. See Estrella, 925 F.3d at 96; Burgess, 537 F.3d at 128-29. Accordingly, we remand the case to the ALJ for a thorough and procedurally correct reconsideration of Bellehsens claim in light of the obligations imposed by Burgess and Estrella.

* * *

For the reasons set forth above, the district courts judgment is VACATED and the case is REMANDED to the Commissioner for further proceedings.

FOOTNOTES

. Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.

. Dr. Hertz treated Bellehsen regularly except for a period in 2013 when Bellehsen was attending an intensive outpatient program at St. Lukes Roosevelt Hospital, where she attended group therapy five days a week.