12-4605-cv
Aung Winn v. Comm’r of Soc. Sec.

                            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 United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of October, two thousand and thirteen.

Present:
            PIERRE N. LEVAL,
            PETER W. HALL,
            RAYMOND J. LOHIER, JR.,
                        Circuit Judges.
____________________________________________________

AUNG WINN,

                        Plaintiff-Appellant,

                v.                                                          No. 12-4605-cv

CAROLYN W. COLVIN, IN HER OFFICIAL CAPACITY AS ACTING
COMMISSIONER OF SOCIAL SECURITY,

                  Defendant–Appellee.
____________________________________________________

FOR APPELLANT:                     Scot G. Miller, Coughlin & Gerhart, LLP, Binghamton, NY.

FOR APPELLEE:           Monica K. Crawford, Special Assistant United States Attorney,
                        New York, NY, for Richard S. Hartunian, United States Attorney
                        for the Northern District of New York, Buffalo, NY.
____________________________________________________
       Appeal from a judgment of the United States District Court for the Northern District of

New York (Dancks, M.J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the judgment of the District Court for the Northern District of New York is

VACATED and the case is REMANDED to the district court with instructions to remand to the

Commissioner of Social Security for further consideration in light of this order.

       Plaintiff–Appellant Aung Winn (“Winn”) appeals from the September 26, 2012 decision

and order that affirmed Administrative Law Judge Thomas Tielens’s (“the ALJ”) decision

upholding a determination that Winn was not entitled to Social Security disability insurance

benefits. On appeal to this Court, Winn argues that (1) the ALJ failed properly to evaluate the

medical evidence in the record as well as Winn’s evidence of nonexertional impairments, and (2)

the Commissioner failed to provide Winn an appropriately qualified interpreter at the ALJ

hearing. He asserts principally that substantial evidence does not support the ALJ’s

determination as to his Residual Functional Capacity (“RFC”). We agree. Our analysis assumes

the parties’ familiarity with the underlying facts, procedural history, and issues for review.

       “When a district court has reviewed a determination 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.”

Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (internal quotation marks and brackets

omitted). We have characterized this review as “plenary.” Moran v. Astrue, 569 F.3d 108, 112

(2d Cir. 2009) (citation omitted). “Substantial evidence, however, is more than a mere scintilla.

It means such relevant evidence as a reasonable mind might accept as adequate to support a




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conclusion.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (internal quotation marks

omitted).

       The Social Security Administration utilizes a “five-step sequential evaluation process” to

determine whether an applicant for benefits is disabled and qualifies for benefits. 20 C.F.R.

§ 404.1520(a). At the final step of this five-step process, the ALJ must assess an applicant’s

residual functional capacity (“RFC”), age, education, and work experience “to see if [the

applicant] can make an adjustment to other work.” Id. at (a)(4)(v). The regulations promulgated

pursuant to the Social Security Act establish the evidence relevant and necessary for the Social

Security Administration to make a determination regarding an applicant’s RFC. 20 C.F.R.

§ 404.1545. This evidence includes all relevant medical reports, consultative examinations, and

medical history, as well as statements from medical sources, family, neighbors or other persons

attesting to the limitations suffered due to an impairment. Id. at (a)(3). “[T]he administrative

law judge or the administrative appeals judge at the Appeals Council (when the Appeals Council

makes a decision) is responsible for assessing [the applicant’s] residual functional capacity.” 20

C.F.R. § 404.1546. Winn argues that the ALJ afforded undue weight to the assessment of the

State Agency disability analyst without appropriately weighing the medical opinions of the

physicians who treated Winn. We hold that the ALJ erred in his analysis and determination of

Winn’s RFC, and we therefore remand for further proceedings.

       The ALJ determined that Winn’s RFC allowed him “to lift and/or carry 20 pounds

occasional, 10 pounds frequently, stand and/or walk for a total of 6 hours in an 8 hour work day,

and sit for a total of 6 hours in an 8 hour work day. The claimant must be permitted to change

positions during regularly scheduled breaks. He is also limited to simple work.” The ALJ cited

to medical reports from Dr. Finver and Dr. Pollack to establish that Winn’s back condition had



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remained stable since 2001. He referred to reports prepared by Dr. Ortiz, Dr. Darlow, and Dr.

Kadlecik. The ALJ afforded both Dr. Sirotenko’s medical reports and the report of the State

Agency disability analyst “some weight.” The ALJ noted that the opinion of the State Agency

disability analyst, “[w]hile not a medical source opinion . . . is supported by the longitudinal

medical evidence and consistent with other probative medical opinions of record, namely Dr.

Sirotenko’s,” but gave them little weight.

       Dr. Sirotenko’s recommendations, however, were vague and broad and provided few

specific recommendations that supported the ALJ’s RFC determination. In his report, Dr.

Sirotenko stated that “[Winn] should avoid pushing, pulling or lifting objects greater than a

moderate degree of weight provided those are on a table at waist height. He should avoid lifting

objects over his head to prevent axial load.” The State Agency Residual Functional Capacity

Assessment, on the other hand, stated that Winn could:

               Occasionally lift and/or carry 20 pounds
               Frequently lift and/or carry 10 pounds
               Stand and/or walk with normal breaks for about 6 hours in an 8 hour work day
               Sit about 6 hours with normal breaks in an 8 hour work day
               Perform unlimited push and/or pull operations other than as shown for lift and/or
               carry

These recommendations, prepared by the State Agency disability analyst and afforded “some

weight,” correspond exactly to the RFC that the ALJ endorsed. No medical facts in Dr.

Sirotenko’s or any of the other doctors’ reviews correspond directly to the ALJ’s RFC

determination, despite the ALJ’s assurances that “it is supported by the longitudinal medical

evidence and consistent with other probative medical opinions of record.”

       Examining the record as a whole, we are not persuaded by the Government’s argument

that the RFC determination was supported by substantial medical evidence. For instance, one of

Winn’s treating physicians, Dr. Pollack, saw Winn at least eight times from the onset of the

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impairments to the date last insured. The opinions of Dr. Pollack, despite his having seen Winn

a number of times over the relevant period, were afforded little weight, and the ALJ did not

provide reasons for discounting Dr. Pollack’s opinion. See Burgess v. Astrue, 537 F.3d 117,

127-131 (2d Cir. 2008). Important to the analysis of RFC, Dr. Pollack had provided instructions

recommending “[n]o bending or twisting at the trunk, no lifting over 5 pounds occasionally” and

the requiring that Winn “be able to sit or stand as comfort dictates.” The ALJ includes no

explanation for why this assessment was given only little weight, despite citing to other

provisions of the report in which these recommendations were found, as well as other reports

from Dr. Pollack and having before him Dr. Pollack’s extensive treatment history. The ALJ

gave only little weight to reports of another treating physician, Dr. Darlow, who noted the pain

Winn was suffering in his back and his legs and who recommended that Winn continue with

work restrictions recommended by Dr. Pollack. Nor does the ALJ explain how he considered the

medical opinions of treating physician Dr. Kadlecik, who recommended that Winn could engage

in occasional lifting of 10 pounds and standing or walking less than 2 hours per day.

       We have previously held that “[f]ailure to provide good reasons for not crediting the

opinion of a claimant’s treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128,

133 (2d Cir. 1999) (internal quotation marks and citation omitted); see Selian v. Astrue, 708 F.3d

409, 419 (2d Cir. 2013) (“The failure to provide good reasons for not crediting [the treating

physician’s] diagnosis by itself warrants remand.” (internal quotation marks and citations

omitted)). Here, the ALJ rejected the medical opinions of Winn’s treating physicians in favor of

the opinions of Dr. Sirotenko (who was not a treating physician and only performed a

consultative medical examination) and the non-physician State Agency disability analyst without

providing good reasons for discrediting the treating physicians’ opinions. Given the substantial



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similarity between the recommendation of nonmedical personnel, i.e. the State Agency disability

analyst, and the ALJ’s final RFC determination, versus the express statements of physicians

observing and treating Winn, we remand for the ALJ to consider further and explain how the

medical evidence supports the RFC determination, gathering such additional evidence and

testimony as may be necessary. On remand, we expect the ALJ to support his findings and

reconcile the divergent recommendations of the doctors who have observed Winn during his

time of impairment, noting the opinions of treating physicians where appropriate.

       Winn also argues that, once the ALJ determined that Winn’s mental impairment should

be part of the case, the ALJ had an obligation to develop the record in the issue, which the ALJ

failed to discharge. We agree. In Kohler v. Astrue, 546 F.3d 260 (2d Cir. 2008), we concluded

that an ALJ failed to make specific findings and “conduct a distinct analysis that would permit

adequate review on appeal” in the context of an alleged mental disorder. Id. at 267. In this case,

once the issue was raised, the ALJ had the responsibility to explain whether, based on the record,

the claimant suffered from a medically determinable mental impairment pursuant to 20 C.F.R.

§ 404.1520a(b)(1), and then, if the claimant was found to have such an impairment, conduct the

appropriate inquiry under § 404.1520a(b)(2). Id. at 266. We make no determination as to

Winn’s alleged mental impairments, but we note that the record was incomplete with respect to

its potential severity given the lack of any full and final test of Winn’s IQ. Supplementing the

record as to any mental impairment will assist both in determining the severity of Winn’s mental

impairment and also in assessing his RFC.

       Given our disposition of this matter, we do not need to decide whether the presentation of

Winn’s case before the ALJ was inhibited by the absence of an interpreter. We note that any




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timely request for the services of an interpreter in the proceedings before the ALJ can be

accommodated on remand.

       We hereby VACATE the judgment of the district court and REMAND with instructions

to remand the matter to the Commissioner for further consideration in light of this order.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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