17‐3247‐cv
Estrella v. Berryhill



                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT
                                  ______________

                                     August Term 2018

                    (Argued: April 18, 2019     Decided: May 29, 2019)

                                    Docket No. 17‐3247

                                     BRENDA ESTRELLA

                                     Plaintiff‐Appellant,

                                             –v.–

           NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY,

                                     Defendant‐Appellee.

                                      ______________

Before:
                WESLEY, CHIN, Circuit Judges; KAPLAN, District Judge.*

       Plaintiff‐Appellant Brenda Estrella appeals from a judgment of the United
States District Court for the Eastern District of New York (Kuntz, J.) affirming the
Commissioner of Social Security’s denial of disability benefits. Estrella contends
that the administrative law judge who reviewed her claim, and whose decision the
Commissioner adopted, erred by (A) failing to give controlling weight to the
opinion of her treating physician and (B) failing to explain the reasons for giving


*Judge Lewis A. Kaplan, United States District Court for the Southern District of
New York, sitting by designation.
that opinion minimal weight. For the reasons that follow, we VACATE the
judgment of the district court and REMAND the case to the Commissioner for
further proceedings consistent with this opinion.
                                  _________________


             CAROLYN A. KUBITSCHEK, Lansner & Kubitschek, New York, NY,
                 for Plaintiff‐Appellant.

             CANDACE SCOTT APPLETON, Assistant United States Attorney
                 (Varuni Nelson and Arthur Swerdloff, Assistant United States
                 Attorneys, on the brief), for Richard P. Donoghue, United States
                 Attorney for the Eastern District of New York, New York, NY,
                 for Defendant‐Appellee.

                                   _________________


WESLEY, Circuit Judge:

      Plaintiff‐Appellant Brenda Estrella appeals from a judgment of the United

States District Court for the Eastern District of New York (Kuntz, J.), affirming the

Commissioner of Social Security’s (“Commissioner”) denial of disability benefits

under Titles II and XVI of the Social Security Act (“SSA” or “the Act”), 42 U.S.C.

§§ 401–434 and 1381–1383. Estrella contends that the administrative law judge

(“ALJ”) who reviewed her claim, and whose decision the Commissioner adopted,

erred by (A) failing to give controlling weight to the opinion of her treating

physician and (B) failing to explain the reasons for giving that opinion minimal

weight. For the reasons that follow, we vacate the judgment of the district court



                                         2
and remand the case to the Commissioner for further proceedings consistent with

this opinion.

                                BACKGROUND

      Estrella worked as an administrative clerk from 1994 until 2008. Beginning

in 2002 and continuing through at least 2013, Estrella suffered from, as relevant to

this appeal, major depressive disorder, bipolar disorder, and Attention Deficit

Hyperactive Disorder. From 2003 to 2006, and again from 2010 to 2013, Estrella

took various medications to treat her mental illness and attended monthly

psychotherapy sessions. Estrella testified that she did not seek treatment between

2006 and 2010 because she “was in an abusive relationship[,] . . . was suffering

from severe depression,” and had consequently “withdr[awn] [her]self.” Admin.

R. 108.

      In June 2012, Estrella applied for Social Security Disability Insurance and

Supplemental Security Income benefits. She claimed that she had been unable to

work since August 27, 2008 because of depression, herniated discs, knee pain,

diabetes, nerve damage, sleep apnea, and “spasms.” Id. at 236.

      A claimant is disabled for purposes of the SSA if she is unable to “engage in

any substantial gainful activity by reason of any medically determinable physical




                                         3
or mental impairment [that] 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.” 42

U.S.C. § 423(d)(1)(A). The Social Security Administration has outlined a “five‐step,

sequential evaluation process” to determine whether a claimant is disabled:

      (1) whether the claimant is currently engaged in substantial gainful
      activity; (2) whether the claimant has a severe impairment or
      combination of impairments; (3) whether the impairment meets or
      equals the severity of the specified impairments in the Listing of
      Impairments; (4) based on a “residual functional capacity”
      assessment, whether the claimant can perform any of his or her past
      relevant work despite the impairment; and (5) whether there are
      significant numbers of jobs in the national economy that the claimant
      can perform given the claimant’s residual functional capacity, age,
      education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (citing Burgess v. Astrue, 537 F.3d

117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v)). The

claimant bears the burden of proving her case at steps one through four. Id. The

burden shifts to the Commissioner at step five. Id.

      On October 22, 2012, the Commissioner denied Estrella’s application. The

Social Security Administration’s Office of Disability Adjudication and Review

subsequently granted Estrella’s request for a hearing before an ALJ. Following a

hearing in October 2013, and a second hearing in January 2014, the ALJ

determined, in accordance with the five‐step process, the following: (1) Estrella



                                           4
“ha[d] not engaged in substantial gainful activity since August 27, 2008,” Admin.

R. 25; (2) her mild lumbar and median nerve radiculopathy, mild to moderate

bilateral carpal tunnel syndrome, diabetes, and depression were severe

impairments because the conditions “impose[d] more than minimal limitations”

on her ability to perform basic work activities, id.; (3) she did not have an

impairment or combination of impairments that met or equaled the severity of the

specified impairments in the Listing of Impairments, id.; (4) she had the residual

functional capacity (“RFC”) to perform light work, with certain limitations, and

she could perform past relevant work as an administrative clerk, which would not

be precluded by her RFC, id. at 27, 30; and (5) she could otherwise perform a “wide

range of light level . . . work,” id. at 30. The ALJ accordingly denied Estrella’s

application. Id.

      The Office of Disability Adjudication and Review denied Estrella’s request

for review on May 14, 2015, at which point the ALJ’s decision became the final

decision of the Commissioner. On July 8, 2015, Estrella filed a complaint in the

United States District Court for the Eastern District of New York, effectively

appealing the Commissioner’s decision. On September 6, 2017, the district court




                                        5
denied Estrella’s motion for judgment on the pleadings and granted the

Commissioner’s cross‐motion for the same. This appeal followed.


                                    DISCUSSION

      I.     Standard of Review

      On an appeal from the denial of disability benefits, “we focus on the

administrative ruling rather than the district court’s opinion.” McIntyre, 758 F.3d

at 149 (citation omitted). “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.” Cichocki v. Astrue, 729 F.3d 172, 175–76 (2d Cir. 2013) (per

curiam) (quotation marks and citation omitted). Substantial evidence is evidence

that “a reasonable mind might accept as adequate to support a conclusion.”

McIntyre, 758 F.3d at 149 (citation omitted). Although we do not require that

“every conflict in a record be reconciled by the ALJ or the Secretary, . . . we do

[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.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).




                                            6
      II.    Treating Physician Rule

      Estrella principally challenges the ALJ’s handling of her treating

psychiatrist’s opinion. In October 2013, Dr. Felix Dron submitted a Medical Source

Statement to the Office of Disability Adjudication and Review in which he opined

that Estrella’s “poor concentration, forgetful[ness], low stress tolerance, rage

outbursts[,] . . . depression[,] and anxiety” resulted in “marked” limitations in the

areas of making work‐related decisions and understanding, remembering, and

carrying out detailed instructions. Admin. R. 507–08. Although Dr. Dron had

treated Estrella for roughly five years, the ALJ assigned “little weight” to his

opinion. Id. at 29. Estrella argues that, in doing so, the ALJ failed to comply with

the procedural mandates of the so‐called treating physician rule. We agree.

      Social Security Administration regulations, as well as our precedent,

mandate 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. “[T]he opinion of a

claimant’s treating physician as to the nature and severity of [an] 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 the other




                                         7
substantial evidence in [the] case record.’” Burgess, 537 F.3d at 128 (third brackets

in original) (quoting 20 C.F.R. § 404.1527(c)(2)). Second, if the ALJ decides the

opinion is not entitled to controlling weight, it must determine how much weight,

if any, to give it. In doing so, it must “explicitly consider” the following,

nonexclusive “Burgess factors”: “(1) the frequen[cy], 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.” Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per

curiam) (citing Burgess, 537 F.3d at 129 (citing 20 C.F.R. § 404.1527(c)(2))). At both

steps, the ALJ must “give good reasons in [its] notice of determination or decision

for the weight [it gives the] treating source’s [medical] opinion.” Halloran v.

Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (quoting 20 C.F.R. §

404.1527(c)(2)).

      An ALJ’s failure to “explicitly” apply the Burgess factors when assigning

weight at step two is a procedural error. Selian, 708 F.3d at 419–20. If “the

Commissioner has not [otherwise] 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.” See




                                          8
Halloran, 362 F.3d at 33. If, however, “a searching review of the record” assures us

“that the substance of the treating physician rule was not traversed,” we will

affirm. See id. at 32.

       To begin, although substantial evidence supports the ALJ’s decision at step

one to assign less‐than‐controlling weight to Dr. Dron’s opinion, the same is not

true of its decision at step two to assign “little weight” thereto. In deciding, at step

one, that Dr. Dron’s opinion was not entitled to controlling weight, the ALJ

pointed to two positive treatment notes from July and August 2012. The October

2013 Medical Source Statement, it explained,

       [was] inconsistent with the evidence and [Dr. Dron’s own]
       examination of [Estrella]. During [Dr. Dron’s] examination of
       [Estrella], . . . most of her mental status examinations were normal,
       she only had at most mild depression, she denied having
       hallucination [sic], and suicidal, homicidal ideations, and there was
       no evidence of cognitive limitations or psychosis. Most importantly,
       from September 12, 2012 through October 15, 2013, [Estrella’s] [Global
       Assessment of Functioning] scores [had] been consistently at 70,
       which indicate[d] mild depression, not marked depression.

Admin. R. 29. In subsequently deciding, at step two, to assign “little weight” to

Dr. Dron’s opinion, the ALJ provided no additional reasoning. It thus failed to

“explicitly consider” the first Burgess factor—“the frequen[cy], length, nature, and

extent of [Dr. Dron’s] treatment”—before weighing the value of the opinion. See

Selian, 708 F.3d at 418. Nowhere in the ALJ’s decision, for example, is the fact that


                                           9
Dr. Dron treated Estrella from 2004 to 2006, and again from 2010 to 2013. Nor did

the ALJ consider that Dr. Dron prescribed various psychotropic medications over

the course of his treatment, in addition to providing monthly psychotherapy

sessions.

       Because the ALJ procedurally erred, the question becomes whether “a

searching review of the record . . . assure[s us] . . . that the substance of the . . . rule

was not traversed”—i.e., whether the record otherwise provides “good reasons”

for assigning “little weight” to Dr. Dron’s opinion. See Halloran, 362 F.3d at 32. It

does not.

       First, a number of treatment notes not cited by the ALJ reflect a more serious

impairment than the ALJ acknowledged. For example, in January 2012, prior to

the only two referenced notes, Dr. Dron observed that Estrella

       [was] inattentive[,] . . . ha[d] a short attention span[,] . . . often [did]
       not seem to be listening when spoken to directly[,] . . . often [did] not
       follow through on instructions[,] and fail[ed] to finish tasks. She [was]
       disorganized . . . [and avoided t]asks that require sustained mental
       effort . . . . She often los[t] things necessary for tasks or activities[,] . . .
       [and was] easily distracted . . . [and] forgetful.

Admin. R. 456. In June 2013, subsequent to the two referenced notes and closer in

time to the ALJ’s decision, Dr. Dron observed that Estrella’s

       anxiety symptoms continue[d] . . . . [She] continue[d] to be
       inattentive[,] . . . [and did] not seem to be listening when spoken to


                                              10
       directly . . . . Tasks that require[d] sustained mental effort [were] still
       being avoided . . . . [Estrella] continue[d] to often lose things necessary
       for tasks or activities[,] . . . [was] still as forgetful as previously[,] . . .
       [and showed] signs of anxiety.

Id. at 434.

       The ALJ made no attempt to “reconcile” or “grapple with” the apparent

longitudinal inconsistencies in Estrella’s mental health—one of the motivations

behind Burgess’s procedural requirement of explicit consideration of “the

frequen[cy], length, nature, and extent of [a physician’s] treatment.” See Selian, 708

F.3d at 418–19. This failure is especially relevant here because the first Burgess

factor, and therefore evidence supporting its satisfaction, is of heightened

importance in the context of Estrella’s claimed impairment: depression. “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.” Garrison v. Colvin,

759 F.3d 995, 1017 (9th Cir. 2014); see also Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir.

2008) (“A person who has a chronic disease, whether physical or psychiatric, and

is under continuous treatment for it with heavy drugs, is likely to have better days

and worse days . . . . Suppose that half the time she is well enough that she could



                                             11
work, and half the time she is not. Then she could not hold down a full‐time job.”).

When viewed alongside the evidence of the apparently cyclical nature of Estrella’s

depression, the ALJ’s two cherry‐picked treatment notes do not provide “good

reasons” for minimalizing Dr. Dron’s opinion.

      Second, Estrella’s Global Assessment of Functioning (“GAF”) scores, which

the ALJ concluded “indicated mild depression, not marked depression,” Admin.

R. 29, do not provide good reasons for assigning little weight to Dr. Dron’s

opinion.1 The Social Security Administration has explained that “[u]nless [a]

clinician clearly explains the reasons behind his or her GAF rating, and the period

to which the rating applies, it does not provide a reliable longitudinal picture of

the claimant’s mental functioning for a disability analysis.” U.S. Soc. Sec. Admin.,

Office of Disability Programs, AM‐13066, Global Assessment of Functioning

(GAF) Evidence in Disability Adjudication (Oct. 14, 2014). Furthermore, “[u]nless

the GAF rating is well supported and consistent with other evidence in the file, it




1The Government contends Estrella waived any argument regarding the ALJ’s treatment
of the GAF scores. However, as we have explained, claimants in Social Security cases
must preserve legal arguments—not necessarily factual ones. See Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009) (per curiam). Estrella preserved the legal argument that the
ALJ erroneously assigned little weight to the opinion of her treating physician.
Accordingly, we will review her factual GAF argument in support of that claim of legal
error.


                                           12
is entitled to little weight under our rules.” Id. Because Estrella’s GAF scores were

bereft of any explanation of Dr. Dron’s reasoning, and because they are

unsupported by Dr. Dron’s other conclusions as to the severity of Estrella’s

depression, they do not provide “good reasons” for assigning little weight to Dr.

Dron’s opinion.

      Finally, the opinion of Dr. Christopher Flach, a one‐time consultative

psychologist, similarly does not provide a good reason for diminishing Dr. Dron’s

opinion. After examining Estrella once in September 2012, Dr. Flach opined that

Estrella had mild problems maintaining attention and concentration but could

follow and understand simple directions and instructions, maintain a regular

schedule, learn new tasks, perform complex tasks independently, and make

appropriate decisions. The ALJ assigned “substantial weight” to Dr. Flach’s

opinion because it “[was] consistent with [Dr. Dron’s] mental treatment notes,

which [did] not show marked limitations.” Admin. R. 29.

      We have frequently “cautioned that ALJs should not rely heavily on the

findings of consultative physicians after a single examination.” Selian, 708 F.3d at

419. This concern is even more pronounced in the context of mental illness where,

as discussed above, a one‐time snapshot of a claimant’s status may not be




                                         13
indicative of her longitudinal mental health. Because the ALJ made the same error

with respect to Dr. Flach as it did with respect to Dr. Dron—namely, relying on his

opinion without “reconcil[ing]” or “grappl[ing] with” Estrella’s fluctuating state

of mental health—we are not assured that, had the ALJ complied with the

procedural mandates of the treating physician rule, it would still have assigned

significant weight to Dr. Flach’s opinion. The opinion of Dr. Flach, in other words,

similarly does not provide a “good reason” for minimizing that of Dr. Dron.

      In light of the ALJ’s failure to “explicitly consider” the first Burgess factor

before assigning “little weight” to the opinion of Estrella’s treating psychiatrist,

and the lack of other “good reasons” to support that decision, we conclude that

the ALJ traversed the substance of the treating physician rule.2 Accordingly, we

remand to the ALJ for reconsideration of Estrella’s claim for disability benefits

consistent with the procedural mandates of the SSA and this Court.3 On remand,



2 Estrella also challenges the ALJ’s hypothetical question to the vocational expert.
However, because she “does not challenge the ALJ’s determination that she has the
physical [RFC] to perform light work,” Appellant Br. 19 n.23, we do not consider this
argument, which concerns her physical limitations resulting from her mild to moderate
bilateral carpal tunnel syndrome.
3Although we have the “power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing,” 42 U.S.C. § 405(g), the
record here does not “provide[] persuasive evidence of total disability that [would]



                                          14
the ALJ should apply all four Burgess factors in determining the appropriate

weight to accord to Dr. Dron’s opinion.


                                   CONCLUSION

      For the foregoing reasons, the judgment of the district court is VACATED,

and the case is REMANDED to the Commissioner for further proceedings

consistent with this opinion.




render[] any further proceedings pointless,” Williams v. Apfel, 204 F.3d 48, 50 (2d Cir.
1999).


                                          15
