16-1346
Gavazzi v. Berryhill

                             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.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 19th day of
April, two thousand seventeen.

Present:
         ROBERT A. KATZMANN,
               Chief Judge,
         DENNIS JACOBS,
         PIERRE N. LEVAL,
               Circuit Judges.
________________________________________________

MATTHEW GAVAZZI,

             Plaintiff-Appellant,

                        v.                                             No. 16-1346

NANCY A. BERRYHILL, ACTING COMMISSIONER
OF SOCIAL SECURITY,*

         Defendant-Appellee.
________________________________________________



*
    The Clerk of Court is directed to amend the caption to conform to the caption displayed above.
                                                  1
For Plaintiff-Appellant:                                Peter A. Gorton, Lachman & Gorton,
                                                        Endicott, NY.

For Defendant-Appellee:                                 Lauren E. Myers, Special Assistant
                                                        United States Attorney, for Richard S.
                                                        Hartunian, United States Attorney for the
                                                        Northern District of New York, Albany,
                                                        NY; Stephen P. Conte, Regional Chief
                                                        Counsel, Office of the General Counsel,
                                                        Social Security Administration, New
                                                        York, NY.


        Appeal from the United States District Court for the Northern District of New York

(Scullin, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED and the case is REMANDED

with instructions to remand the matter to the Commissioner of Social Security for

reconsideration in light of this order.

        Plaintiff-appellant Matthew Gavazzi appeals from the order and judgment entered by the

United States District Court for the Northern District of New York (Scullin, J.) on March 31,

2016, upholding the decision of the Commissioner of Social Security (the “Commissioner”) to

deny Gavazzi’s application for benefits. We assume the parties’ familiarity with the facts and

procedural history of the case. “In reviewing a district court’s decision upholding a decision of

the Commissioner, we ‘review the administrative record de novo to determine whether there is

substantial evidence supporting the Commissioner’s decision and whether the Commissioner

applied the correct legal standard.’” Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) (quoting

Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)).


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       Gavazzi argues that the Administrative Law Judge (“ALJ”) erred in discounting parts of

the opinions of his treating physician, Dr. Brian Wood.1 Specifically, the ALJ assigned minimal

or no weight to the parts of Dr. Wood’s opinions stating (1) that Gavazzi “may” need frequent

position changes and needed to change positions from sitting to standing every 15 minutes; and

(2) that Gavazzi would miss a substantial amount of work if he attempted sedentary work on a

sustained basis. In addition, the ALJ did not directly address the part of Dr. Wood’s March 2013

opinion in which Dr. Wood indicated that Gavazzi would need to rest for more than ten minutes

per hour. Further, the ALJ found unsupported Gavazzi’s “report of concentration problems,” S.

App. 30, although Dr. Wood had opined that Gavazzi would experience “moderate” difficulties

in concentration and ability to sustain his work pace. The ALJ, in assigning little or no weight to

these parts of Dr. Wood’s opinions, did not cite any contrary medical opinion, but rather stated,

for example, that “there is no clinical evidence to support the need to change positions

frequently” and that the relevant parts of Dr. Wood’s opinions were not supported by the

physician’s treatment notes. S. App. 30-31.

       “[T]he opinion of a claimant’s treating physician as to the nature and severity of the

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 substantial

evidence in [the] case record.’” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (per curiam)

(second alteration in original) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)); see


1
  Another physician who examined Gavazzi, Dr. Martin Masarech, provided a medical opinion
that was not assigned significant weight by the ALJ. The ALJ appears not to have treated Dr.
Masarech as a treating physician. For the purposes of this order, we assume arguendo, without
deciding, that Dr. Masarech was properly treated as a non-treating source and that the ALJ
permissibly assigned little weight to Dr. Masarech’s opinion.
                                                3
20 C.F.R. § 404.1527(c)(2). “In analyzing a treating physician’s report, ‘the ALJ cannot

arbitrarily substitute his own judgment for competent medical opinion.’” Rosa v. Callahan, 168

F.3d 72, 79 (2d Cir. 1999) (quoting McBrayer v. Sec’y of Health & Human Servs., 712 F.2d 795,

799 (2d Cir. 1983)). “[A] circumstantial critique by non-physicians, however thorough or

responsible, must be overwhelmingly compelling in order to overcome a medical opinion.”

Burgess, 537 F.3d at 129 (alteration in original) (quoting Shaw v. Chater, 221 F.3d 126, 135 (2d

Cir. 2000)). Here, the ALJ, on the basis of the record before him, was not entitled to assign

minimal or no weight to the parts of Dr. Wood’s opinions mentioned above. Without input from

additional medical practitioners, “[n]either a reviewing judge nor the Commissioner,” Burgess,

537 F.3d at 131, could conclude that Dr. Wood’s treatment notes, or any other part of the record,

contained information that justified the decision to discount these parts of Dr. Wood’s opinions.

       Therefore, we direct the district court to remand to the ALJ for reconsideration of

Gavazzi’s residual functional capacity and, in particular, the weight to be assigned to Dr. Wood’s

opinions on the topics of (1) Gavazzi’s need to alternate between sitting and standing positions;

(2) Gavazzi’s need to rest; (3) Gavazzi’s potential absenteeism; and (4) Gavazzi’s ability to

concentrate and maintain work pace. Although the record as it stands does not support a decision

to assign minimal or no weight to the opinions of Dr. Wood on these topics, the ALJ may further

develop the record by, for example, arranging for the input of another examining physician.

       Additionally, a Social Security ruling provides that

       An individual may need to alternate the required sitting of sedentary work by
       standing (and, possibly, walking) periodically. Where this need cannot be
       accommodated by scheduled breaks and a lunch period, the occupational base for
       a full range of unskilled sedentary work will be eroded. . . . The [residual
       functional capacity] assessment must be specific as to the frequency of the
       individual’s need to alternate sitting and standing.
                                                  4
Titles II & XVI: Determining Capability to Do Other Work-Implications of A Residual

Functional Capacity for Less Than A Full Range of Sedentary Work, SSR 96-9P, 1996 WL

374185, at *6-7 (July 2, 1996). Thus, we direct the district court to instruct the ALJ on remand to

“be specific as to the frequency of [Gavazzi’s] need to alternate sitting and standing,” id., and to

consider the consequences of this frequency for the range of work that Gavazzi can perform.

       Gavazzi also argues that the ALJ erred in not consulting with a vocational expert.

Because we remand for further consideration of Gavazzi’s residual functional capacity, we need

not address this argument now. However, should the ALJ on remand determine that Gavazzi’s

need to alternate between sitting and standing limits the range of sedentary work that Gavazzi

can perform, we note that the Social Security ruling advises that “[i]t may be especially useful in

these situations to consult a vocational resource in order to determine whether the individual is

able to make an adjustment to other work.” SSR 96-9P, 1996 WL 374185, at *7.

       We have considered all of the parties’ remaining arguments and find in them no basis for

altering our decision. Accordingly, the judgment of the district court is VACATED and the case

is REMANDED with instructions to remand the matter to the Commissioner of Social Security

for reconsideration in light of this order. Specifically, the ALJ is to reconsider the issue of

whether Gavazzi has the residual functional capacity to perform the full range of sedentary work

and, if not, whether he could make an adjustment to other work. In addressing this issue, the ALJ

is to reconsider how much weight to give the opinions of Gavazzi’s treating physician Dr. Wood

on (1) Gavazzi’s need to alternate between sitting and standing; (2) Gavazzi’s need to rest; (3)

Gavazzi’s potential absenteeism; and (4) Gavazzi’s ability to concentrate and maintain work

pace. While the current record does not support a finding that these parts of Dr. Wood’s opinions

                                                  5
are entitled to little or no weight, the ALJ may further develop the record, including by arranging

for the input of another examining physician.



                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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