Caseflicks

Court of Appeals for the Second Circuit • 2008

Burgess v. Astrue

537 F.3d 117 | 2008 U.S. App. LEXIS 16726

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Takeaway

In short, this case requires ALJs to confront objective evidence supporting a treating physician rather than disregard that evidence and rely on an expert opinion formed from an incomplete record.

Background

Doleen Burgess injured her knees, back, and neck when she fell over a box at work in 1997. She returned briefly to work but stopped in February 1998 because of continuing pain. Her principal treating physician, orthopedic surgeon Dr. Milton Smith, treated her regularly for more than four years, performed knee surgery, and ultimately concluded that she was totally disabled. A 1999 lumbar MRI showed disc material encroaching on the neural foramen at L2-3 and producing stenosis; Dr. Smith explained that this condition impinged the nerve root and caused pain with movement.

Burgess sought Title II disability benefits. The ALJ found that she had a severe impairment but retained the residual functional capacity for light work and could return to her past work as a salesperson. In reaching that conclusion, the ALJ relied heavily on testimony from a nonexamining orthopedic expert, Dr. Abeles, who mistakenly believed that the record contained no lumbar-MRI report. The ALJ also discounted Dr. Smith's opinion, citing a supposed absence of objective support and Burgess's conservative treatment.

The Appeals Council declined review. The Eastern District of New York granted the Commissioner's motion for judgment on the pleadings, holding that substantial evidence supported the denial. Burgess appealed, arguing that the ALJ improperly rejected her treating physician's opinion, failed to explain the weight assigned to it, and inadequately developed the record.

Issues

Issue #1

Whether the ALJ gave legally sufficient reasons for declining to credit Dr. Smith's treating-physician opinion.

Holding

No. The ALJ failed to provide the required good reasons for rejecting Dr. Smith's MRI-supported opinion, and the denial therefore lacked substantial-evidence support.

Reasoning

Under the treating-physician rule, a treating source's opinion on the nature and severity of an impairment receives controlling weight when it is well supported by medically acceptable clinical and diagnostic techniques and is not inconsistent with other substantial evidence. Even when an ALJ does not give the opinion controlling weight, the ALJ must consider the length, frequency, nature, and extent of treatment; the opinion's supportability and consistency; and the physician's specialization. The ALJ must then give a comprehensive explanation of the weight assigned and good reasons for declining to credit the opinion.

Dr. Smith was Burgess's long-term orthopedic treating physician. He examined her regularly for more than four years, treated her immediately after the workplace injury, performed her knee surgery, reviewed the lumbar MRI, and explained why the MRI's stenosis and disc protrusion would impinge the nerve root and cause pain during movement. His opinion was therefore supported by objective diagnostic evidence as well as an extensive treating relationship.

The ALJ repeatedly asserted that the record contained no objective evidence that could produce Burgess's claimed pain. That premise was wrong. The lumbar MRI report was in the administrative record, and it documented disc material encroaching on the L2-3 neural foramen and producing stenosis. The transcript of Dr. Smith's Workers' Compensation testimony was also in the record and explained the clinical significance of those findings. The ALJ's failure to recognize and consider this evidence meant that the stated reason for rejecting Dr. Smith's opinion was not a good reason.

The ALJ's reliance on Dr. Abeles did not cure the error. Dr. Abeles had not examined Burgess and wrongly believed that no lumbar-MRI report had been supplied. His conclusion that there was no objective reason for functional limitations was thus based on an incomplete understanding of the record. Likewise, the opinions of the one-time examining doctor and state-agency reviewers did not substantially undermine Dr. Smith because those sources also appeared not to have considered the MRI findings.

The ALJ also treated Burgess's conservative treatment, including Tylenol and Motrin rather than surgery or stronger medication, as evidence against disability. That rationale was insufficient. A factfinder may not substitute a lay view that severe impairment necessarily demands aggressive treatment for a physician's medical judgment, particularly where Dr. Smith had explained that Burgess's chronic condition limited how much medication could appropriately be given.

Issue #2

Whether the ALJ fulfilled the duty to develop the nonadversarial Social Security record concerning the lumbar MRI.

Holding

No. At minimum, if the MRI report had been absent, the ALJ should have sought it rather than treating its apparent absence as evidence against Burgess.

Reasoning

Social Security disability hearings are nonadversarial, and an ALJ has an affirmative obligation to develop the administrative record. An ALJ cannot reject a treating physician's diagnosis without first trying to fill clear gaps in the record.

Although the MRI report was actually included in the record, the ALJ and Dr. Abeles mistakenly believed otherwise. Even had it truly been missing, the ALJ was on notice that it existed: Dr. Zaretsky referenced it in several reports, and Dr. Abeles acknowledged that the records mentioned an MRI. The ALJ should have obtained the report instead of relying on its supposed absence to find no objective support for Dr. Smith's opinion.

Issue #3

Whether the Court should order benefits outright or remand for further administrative proceedings.

Holding

Remand, not an immediate award of benefits, was appropriate.

Reasoning

The Court could not sustain the ALJ's finding that Burgess could return to salesperson work, which in her experience required standing virtually all day. That finding conflicted with Dr. Smith's opinion that she could stand only one hour total in an eight-hour day and no more than fifteen minutes at a time, and the ALJ had not supplied substantial evidence or adequate reasons to reject that opinion.

Still, the present record did not compel an immediate benefits award. Dr. Robert Zaretsky examined Burgess twelve times, considered the lumbar MRI in his later reports, described a mild partial and possibly permanent disability, and once stated that she could engage in gainful employment. The ALJ had not expressly evaluated whether Zaretsky's reports materially conflicted with Dr. Smith's assessment.

On remand, the ALJ must expressly consider the MRI report, Dr. Smith's explanation of it, and the relevant competing evidence. If the ALJ again declines to give Dr. Smith's opinion controlling weight, the decision must identify the weight assigned and provide good reasons grounded in substantial evidence.