11-2630-cv
Sanders 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 26th day of December, two thousand twelve.

PRESENT:    DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                      Circuit Judges,
            JOHN GLEESON,
                      District Judge.*

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LENORRIS SANDERS,
                         Plaintiff-Appellant,

                         -v.-                             11-2630-cv

COMMISSIONER OF SOCIAL SECURITY,
                    Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:              HOWARD D. OLINSKY (Jaya A.
                                      Shurtliff, on the brief), Olinsky
                                      Law Group, Syracuse, New York.



      *
          The Honorable John Gleeson, United States District
Judge for the Eastern District of New York, sitting by
designation.
FOR DEFENDANT-APPELLEE:          KATRINA LEDERER, Special Assistant
                                 United States Attorney (Mary Ann
                                 Sloan, Acting Regional Chief
                                 Counsel, Region II, and Tracy
                                 Udell, Special Assistant United
                                 States Attorney on the brief), for
                                 Kathleen M. Mehltretter, United
                                 States Attorney for the Western
                                 District of New York, Syracuse, New
                                 York.

             Appeal from the United States District Court for the

Western District of New York (Telesca, J.).

             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is VACATED and the case is REMANDED

to the district court with instructions to remand the case to the

Commissioner of Social Security for further proceedings.

             Plaintiff-appellant Lenorris Sanders appeals from the

district court's judgment entered May 6, 2011, dismissing his

complaint.    The judgment was based on the district court's May 3,

2011 order granting judgment on the pleadings in favor of

defendant-appellee Commissioner of Social Security (the

"Commissioner").    Sanders v. Astrue, No. 10-CV-6317T, 2011 WL

1672534, at *12 (W.D.N.Y. May 3, 2011).    We assume the parties'

familiarity with the underlying facts and procedural history of

the case, as well as the issues presented for review.

             On October 30, 2007, Sanders applied for disability

benefits under Title XVI of the Social Security Act (the "Act"),

claiming impairment in his spine, lower back, and left leg.    The


                                  -2-
application was denied initially and, following a de novo hearing

before Administrative Law Judge ("ALJ") John P. Costello, denied

again on November 3, 2009.   The ALJ held that Sanders was not

disabled within the meaning of the Act.   On April 16, 2010, the

Social Security Administration Office of Disability Adjudication

and Review denied review of the ALJ's decision.   The district

court ruled in favor of the Commissioner below, and this appeal

followed.

            On appeal, Sanders argues (1) the ALJ erroneously held

that he failed to meet Listing 1.04; (2) the ALJ's determination

of his residual functional capacity ("RFC") was not supported by

substantial evidence; (3) the ALJ erred by accepting the

vocational expert's testimony as substantial evidence; and (4)

the ALJ erred by failing to apply the proper legal standards in

assessing his credibility.

            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."   Burgess v.

Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation

marks omitted).   "[I]t is not our function to determine de novo

whether [a plaintiff] is disabled."    Brault v. Soc. Sec. Admin.,

Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (quoting Pratts v.

Chater, 94 F.3d 34, 37 (2d Cir. 1996)).


                                 -3-
1.   Listing 1.04

          Listing 1.04 sets parameters for impairments involving

a disorder of the spine that results in the compromise of a nerve

root or the spinal cord.   See 20 C.F.R. pt. 404, Subpt. P, App.

1, Section 1.04 (2006).    Under Listing 1.04(A), such a disorder

can be demonstrated by evidence of nerve root compression

accompanied by sensory or reflex loss.      Id.   As the district

court found, the ALJ's determination that Sanders failed to meet

Listing 1.04 was supported by substantial evidence in the record.

          Sanders essentially concedes that no doctor diagnosed

him with nerve root compression.       Nevertheless, he contends that

the record contains evidence of nerve root compression.      Even

assuming that is true, the evidence also contains substantial

evidence supporting the conclusion that there was no nerve root

compression.   For example, a January 8, 2008 orthopedic

examination (with an x-ray of the spine) revealed "[n]o frank

features of lower extremity radiculopathy."       Although a March 3,

2008 examination noted "radicular symptoms in the left leg," it

also found:

          The patient has good range of motion of the lumbar
          spine. Muscle strength is 5/5 in the bilateral
          upper and lower extremities. There is no atrophy
          or abnormal movements.

We conclude there is substantial evidence in the record

supporting the Commissioner's decision that Sanders did not

suffer from a listed impairment.

                                 -4-
2.   Residual Functional Capacity

            Sanders argues that the ALJ's determination of his RFC

was not supported by substantial evidence.    The ALJ found that

Sanders:

            has the residual functional capacity to lift 20 pounds
            occasionally and 10 pounds frequently; sit, stand
            and/or walk . . . for a total of about 6 hours in an
            8-hour workday; . . . and is precluded from overhead
            lifting.

            Sanders claims that the ALJ failed to accord

appropriate weight to the opinion of his treating physician, Dr.

Bharat Gupta, who reported that Sanders could lift no more than

10 pounds and stand for no longer than 1 hour.    For the following

reasons, we agree with Sanders.

            First, the ALJ stated that the opinions of the treating

source and examining sources, including that of the state agency

examiner, "are generally consistent with each other."      This was

wrong.2    Dr. Gupta, the treating source, opined in 2009 that

Sanders could lift no more than 10 pounds.    The state agency

examiner, L. Patelunas, was of the opinion that Sanders could

lift 20 pounds.    These opinions are not consistent, compare 20

C.F.R. § 416.967(a) (defining sedentary work as lifting no more

than 10 pounds at a time) with id. § 416.967(b) (defining light



     2
          The government concedes this point, acknowledging that
Dr. Gupta gave a more "restrictive assessment" of Sanders's
functional limits than the one ultimately adopted by the ALJ.
App. Br. at 38.

                                  -5-
work as lifting no more than 20 pounds at a time), and the

inconsistency cannot be dismissed as trivial.   Indeed, it struck

right at the heart of the decision denying benefits:   the ALJ's

finding that Sanders could perform a range of light work requires

a rejection of the treating physician's opinion in favor of the

consultative examiner's opinion.    The ALJ's statement that these

contradictory opinions are "generally consistent" is sufficient

by itself to remand for an explanation.

           Second, the ALJ did not follow the treating physician

rule in assessing Sanders's exertional capabilities.   In arriving

at an RFC determination, an ALJ must assess a claimant's

exertional capabilities - which includes the ability to stand and

carry - based on "all of the relevant medical and other

evidence," 20 C.F.R. § 404.1545(a)(3).    Dr. Gupta was Sanders's

treating physician.   He treated Sanders for back and neck pain on

at least thirteen different occasions over three years beginning

in July 2006.3   Based on this treatment, Dr. Gupta concluded in

July 2009 that Sanders should engage in "no lifting more than 10

[pounds]" and "no prolonged standing for more than 1 [hour] at a

time."   Despite this opinion, the ALJ concluded that Sanders had

the RFC to "lift 20 pounds occasionally and . . . stand . . . for

a total of about 6 hours . . . ."



     3
          Dr. Gupta treated Sanders in July and October 2006; in
January, February, March, May, October and December 2008; and
February, April, July, August and September 2009.

                                -6-
          A treating physician's opinion must be given

"controlling weight" when 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."   Id. § 404.1527(c)(2).    Where, as here, an ALJ

gives a treating physician opinion something less than

"controlling weight," he must provide good reasons for doing so.

This Court has consistently held that the failure to provide good

reasons for not crediting the opinion of a claimant's treating

physician is a ground for remand.     Schaal v. Apfel, 134 F.3d 496,

505 (2d Cir. 1998); see also Halloran v. Barnhart, 362 F.3d 28,

33 (2d Cir. 2004) (per curiam) ("We do not hesitate to remand

when the Commissioner has not provided 'good reasons' for the

weight given to a treating physicians [sic] opinion and we will

continue remanding when we encounter opinions from ALJs that do

not comprehensively set forth reasons for the weight assigned to

a treating physician's opinion.").

          Here, the ALJ failed to provide good reasons for

failing to give controlling weight to Dr. Gupta's opinion.

Moreover, from our plenary review of the record, it is not

possible to glean any "good reason" for deviating from Dr.

Gupta's opinion on Sanders's exertional limits.4    Accordingly, we


     4
          The record does not permit us to conclude that Dr.
Gupta's opinion was "inconsistent with the other substantial
evidence in [the] case record." 20 C.F.R. § 404.1527(c)(2). The
1994 and 1999 reports relied on by the district court pre-date

                                -7-
hold that the Commissioner's determination that Sanders is

capable of performing light work is not supported by substantial

evidence.5

             The judgment of the district court is VACATED and the

case is REMANDED to the district court with instructions to

remand the case to the Commissioner for further proceedings.

                                 FOR THE COURT:
                                 Catherine O'Hagan Wolfe, Clerk




Sanders's October 2006 car accident by twelve and seven years
respectively. Given their age, these reports do not provide a
"good reason" to deviate from the opinion of the current treating
physician. Indeed, the district court's conclusion to the
contrary appears to be based on a mistake, as it incorrectly
identified the latter evaluation as taking place in November 2009
when, in fact, it took place ten years earlier. See Decision &
Order at 21. Likewise, in the absence of a good reason
otherwise, Dr. Lefebvre's March 1994 report - which indicates
that Sanders is capable of doing "light to medium" work - cannot
be relied upon to contradict an opinion of a treating physician
that came fifteen years later. Id. Last, the contradictory RFC
provided by the state agency disability examiner, L. Patelunas,
is not a good reason to disregard Dr. Gupta's medical opinion.
Where, as here, there are conflicting opinions between the
treating and consulting sources, the "consulting physician's
opinions or report should be given limited weight." Cruz v.
Sullivan, 912 F.2d 8, 13 (2d Cir. 1990).
     5
          The ALJ concluded that Sanders was not completely
credible because his statements were inconsistent with his RFC.
Since that RFC as found by the Commissioner is not supported by
substantial evidence, the ALJ is directed to re-assess this
credibility assessment on remand. Likewise, since the vocational
expert's testimony relied on a RFC that is not supported by
substantial evidence, on remand the Commissioner is directed to
re-assess the weight it gave to the testimony of vocational
expert Peter Mansey.

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