08-5544-cv
Gunter v. Commissioner of Social Security


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER

R U LIN GS BY SU M M A R Y O RD ER D O N OT H AVE PR EC ED EN TIA L EFFEC T . C IT A TIO N T O A SU M M A R Y O R D ER F IL ED O N O R
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PAR TY M UST CITE EITHER THE F EDER AL A PPEND IX OR A N ELECTRONIC DATABASE ( W ITH TH E N OTA TIO N “ SU M M A R Y
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CO UN SEL .


        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 15th
day of January, two thousand and ten.

PRESENT:
            GUIDO CALABRESI,
            ROSEMARY S. POOLER,
                        Circuit Judges,
            LAWRENCE E. KAHN,*
                        District Judge.
_______________________________________________

Joseph L. Gunter,

                                         Plaintiff-Appellant,
                    v.                                                                      No. 08-5544-cv

Commissioner of Social Security,

                        Defendant-Appellee.
______________________________________________

For Appellant:                                                          JOSEPH L. GUNTER, pro se,
                                                                        Bronx, N.Y.

For Appellee:                                                           LESLIE A. RAMIREZ-FISHER,
                                                                        Assistant United States Attorney, of
                                                                        counsel to Lev L. Dassin, Acting


          *
         Lawrence E. Kahn, Senior Judge of the United States District Court for the Northern
District of New York, sitting by designation.
                                                      United States Attorney for the
                                                      Southern District of New York (Ross
                                                      E. Morrison, Assistant United States
                                                      Attorney, on the brief).


       Appeal from a judgment of the United States District Court for the Southern District of
New York (Cote, J.). UPON DUE CONSIDERATION, it is hereby ORDERED,
ADJUDGED AND DECREED that the judgment of the district court be REVERSED and the
case be REMANDED to the district court with instructions to remand to the Commissioner of
Social Security (“Commissioner”) for further proceedings.

        Plaintiff Joseph L. Gunter, pro se, appeals the district court’s grant of the Commissioner’s
motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure,
which upheld the Commissioner’s denial of plaintiff’s application for disability insurance
benefits. We assume the parties’ familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.

          Because our review of the district court’s decision granting defendant’s motion to
dismiss is de novo, we review the Commissioner’s determination directly. See Schaal v. Apfel,
134 F.3d 496, 501 (2d Cir. 1998) (noting focus of review is on the administrative ruling, not the
district court’s decision). We review the Commissioner’s determination for substantial evidence,
setting the determination aside only if it was based on an incorrect legal standard, or if it is not
supported by evidence that a reasonable mind might accept as adequate to support the
conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Burgess v. Astrue, 537 F.3d
117, 127 (2d Cir. 2008).

        It is well-settled that an ALJ cannot substitute her own judgment for that of a medical
professional. E.g., Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). Further, while
genuine conflicts in the medical evidence are for the ALJ to resolve, Burgess, 537 F.3d at 128,
the so-called “treating physician rule” directs the ALJ to give controlling weight to the opinion of
the treating physician so long as it is consistent with the other substantial evidence, see Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 829 (2003); Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004); 20 C.F.R. § 404.1527(d)(2).1 Before an ALJ may elect to discredit the medical
conclusions of a treating physician, she must explicitly consider (1) the frequency of examination

       1
         Judge Posner has expressed puzzlement over this rule: “Obviously if it is well
supported and there is no contradictory evidence, there is no basis on which the administrative
law judge, who is not a physician, could refuse to accept it. Equally obviously, once
well-supported contradicting evidence is introduced, the treating physician’s evidence is no
longer entitled to controlling weight.” Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006).
We need not decide here whether the rule functions, as Judge Posner concludes, as a
“disappearing presumption,” id. at 377, as a “tiebreaker,” or as some third possibility. What is
relevant for our purposes is that the rule imposes on the Commissioner a heightened duty of
explanation when a treating physician’s medical opinion is discredited.
and length, nature, and extent of the treatment relationship, (2) the evidence in support of the
physician’s opinion, (3) the consistency of the opinion with the record as a whole, (4) whether
the opinion is from a specialist, and (5) whatever other factors tend to support or contradict the
opinion. Id. We do not hesitate to remand when the Commissioner has not given good reasons
for the weight given to a treating physician’s opinion. Halloran, 362 F.3d at 32.

        In the present case, the ALJ erred in failing adequately to explain his determination not to
credit the opinion of Dr. Bernard Nidus, plaintiff’s treating physician. Dr. Nidus concluded that
plaintiff could not sustain fine and gross movement, and could sit only for two hours out of an
eight-hour work day.2 In explaining its determination not to credit Dr. Nidus’s opinion, the ALJ
noted that he gave “controlling weight to the opinion of Dr. Nidus insofar as it is consistent with
the substantial evidence of record,” but went on to say that he gave

       little weight to his opinion that the claimant can only sit for an aggregate of two
       hours in an eight hour workday . . . because it is not consistent with the substantial
       evidence of record. Significant weight is assigned to the opinions of the state agency
       consultants and Dr. Seo because they are consistent with the substantial evidence of
       record.

These remarks fall far short of the ALJ’s duty to provide “good reasons” for rejecting a treating
physician’s opinion. 20 C.F.R. § 404.1527(d)(2). As best we can determine, the ALJ refused to
credit Dr. Nidus’s opinion because various non-examining doctors came to a different
conclusion. The ALJ is, of course, entitled to credit the opinions of consulting physicians.
However, while contradictions in the medical record are for the ALJ to resolve, Burgess, 537
F.3d at 128, they cannot be resolved arbitrarily, Green-Younger, 335 F.3d at 106. Here, the
ALJ’s incantatory repetition of the words “substantial evidence” gives us no indication at all of
why he chose to credit the opinions of the consulting physicians over that of Dr. Nidus.

         Indeed, the ALJ’s determination to credit the consulting physicians as if they spoke with
a unified voice appears to be factually as well as legally problematic. Although the ALJ found
that the consulting doctors’ opinions were “consistent with the substantial evidence of record,”
the record reveals that these opinions did not corroborate one another. Whereas Dr. Seo stated
that plaintiff’s abilities in bending, lifting, and carrying were “slightly limited,” the agency
consultant claimed that plaintiff’s limitations were “severe,” albeit “not to the degree alleged.”
The consulting doctors were also not consistent in their assessment of plaintiff’s knee injuries, as
Dr. Seo reported only a right knee derangement, whereas Dr. Wells reported a left knee medial
meniscus tear.

       2
          As the government notes, Dr. Nidus expressed this opinion on an “Arthritis Impairment
Questionnaire” that had been provided to him by plaintiff’s then-attorney. However, “the mere
fact that a medical report is provided at the request of counsel or, more broadly, the purpose for
which an opinion is provided, is not a legitimate basis for evaluating the reliability of a report.”
Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998). Further, we note that Dr. Nidus’s opinion
appears to be consistent with contemporaneous treatment notes that are contained elsewhere in
the record.
        The record also reveals that Dr. Wells, a non-examining physician, made his assessment
without reviewing the complete record of Gunter’s medical history, which revealed medial
meniscus tears in both of Gunter’s knees. Consideration of Gunter’s entire medical records
might have altered Dr. Wells’s conclusions. E.g., Hidalgo v. Bowen, 822 F.2d 294, 298 (2d Cir.
1987) (holding that Commissioner’s evidence was not sufficiently substantial to override the
treating physician’s assessment of the plaintiff’s abilities, where consulting doctor did not review
the complete medical records of the plaintiff, which records confirmed the treating physician’s
diagnosis).

        Accordingly, for the foregoing reasons, the judgment of the district court is hereby
REVERSED and the case is REMANDED to the district court with instructions to remand to the
Commissioner for further proceedings consistent with this opinion. It is further ORDERED, sua
sponte, that counsel is APPOINTED from this Court’s pro bono panel.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk


                                                      By: _______________________
