14-3779
Lesterhuis v. Colvin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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August Term, 2015
(Submitted: October 30, 2015 Decided: November 6, 2015)
Docket No. 14‐3779
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MARC LESTERHUIS,
Plaintiff‐Appellant,
—v.—
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant‐Appellee.
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B e f o r e:
KATZMANN, Chief Judge, POOLER and CHIN, Circuit Judges.
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Appeal from a judgment of the district court (Wolford, J.), granting the
defendant’s motion for judgment on the pleadings. We hold that the Social
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Security Administration administrative law judge’s determination that the
plaintiff was not disabled is not supported by substantial evidence in the record,
which includes a medical opinion submitted only to the Social Security
Administration’s Appeals Council, but not to the administrative law judge. We
therefore VACATE the district court’s judgment and REMAND to the
Commissioner for further proceedings.
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William J. McDonald, Jr., Bond, McDonald & Lehman, P.C., Geneva,
New York, for Plaintiff‐Appellant.
Andreea Lechleitner, Special Assistant U.S. Attorney, and Stephen P.
Conte, Regional Chief Counsel, Region II, Office of the General
Counsel, Social Security Administration, for William J. Hochul,
Jr., U.S. Attorney for the Western District of New York, New
York, New York, for Defendant‐Appellee.
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PER CURIAM:
A Social Security Administration (“SSA”) administrative law judge (“ALJ”)
denied Plaintiff‐Appellant Marc Lesterhuis’s application for Social Security
disability benefits. After the SSA’s Appeals Council denied review of the ALJ’s
decision, Lesterhuis sought review of the agency’s determination in the U.S.
District Court for the Western District of New York (Wolford, J.), which granted
the defendant’s motion for judgment on the pleadings.
2
This appeal centers on a medical opinion provided by one of Lesterhuis’s
treating physicians, Dr. Donovan Holder. Lesterhuis submitted Dr. Holder’s
opinion to the Appeals Council, not to the ALJ. The Appeals Council added Dr.
Holder’s opinion to the record, but it nevertheless summarily denied review of
the ALJ’s decision. Lesterhuis now argues both that the Appeals Council erred by
failing to provide an explanation for why it disregarded the treating physician’s
opinion and that the ALJ’s decision is not supported by substantial evidence in
light of Dr. Holder’s opinion.1
We hold that the ALJ’s determination is not supported by substantial
evidence in the record. Accordingly, we VACATE the district court’s judgment
and REMAND to the Commissioner for further proceedings.
BACKGROUND
Lesterhuis is currently forty‐seven years old. He has an eleventh‐grade
education and worked for twenty‐two years as a heavy truck driver for Golden
State Foods. Lesterhuis experienced serious back pain in the aftermath of a June 9,
1 Lesterhuis also argues that the ALJ erred by failing to provide adequate
support for his determination regarding Lesterhuis’s credibility. We need not
reach this issue because we vacate in full for an independent reason.
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2008 injury. He left work in July 2008, but tried unsuccessfully to return to work
on light duty for a few weeks in September 2008. Lesterhuis has undergone a
series of treatments, including surgery, for his injury, but these treatments have
not significantly improved his condition.
Lesterhuis eventually filed a claim for Social Security disability benefits on
January 8, 2009, alleging a disability onset date of July 12, 2008. The claim was
initially denied on May 15, 2009. Lesterhuis then timely filed a request for an
administrative hearing.
As part of the administrative hearing process, a number of doctors
provided medical opinions about Lesterhuis’s condition. Dr. Glenn Rechtine, one
of Lesterhuis’s treating physicians, concluded, in a December 2008 opinion, that
Lesterhuis can “perform[] light duty work on a part‐time basis,” “can lift up to 10
pounds frequently[,] can stand and walk occasionally with frequent changes in
position,” and “can bend, squat[,] . . . do overhead activities occasionally, arm and
leg controls occasionally.” A.R. 276.
Dr. Richard Byrne, an examiner for the workers’ compensation carrier,
expressed concern about Lesterhuis’s ability to return to full‐duty work. He
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concluded that Lesterhuis could be employed full‐time in a light‐duty capacity
doing sedentary activities but required the ability to change positions frequently
for comfort. According to Byrne, Lesterhuis “could do limited walking,” but “no
climbing, . . . repetitive stooping, bending[,] or reaching activities.” A.R. 367, 374.
“He could be called upon on an occasional basis to push, pull[,] or lift objects in
the 5‐10 pound range.” Id. Dr. Byrne also stated that Lesterhuis has a “temporary,
marked, partial disability of the lower back.” A.R. 448.
Dr. M. Gordon Whitbeck, Jr., was Lesterhuis’s treating orthopedic surgeon.
He opined on multiple occasions that Lesterhuis is temporarily totally disabled.
Additionally, he concluded that Lesterhuis should avoid the extreme ranges of
motion in the lumbar spine and not lift anything heavier than five to ten pounds.
George Sirotenko, a consultative examiner, concluded that Lesterhuis
suffers from a history of discogenic disease, anxiety, and depression and that he
has “[m]oderate limitations regarding prolonged standing, walking, stairs,
inclines[,] or ladders.” A.R. 336. Sirotenko warned that Lesterhuis should avoid
lumbar spine forward flexion, extension, and rotation and should avoid lifting
anything over his head.
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Another consultative examiner, Maryanne Hamilton, Ph.D., examined
Lesterhuis’s mental state, concluding that he suffers from anxiety and depressive
disorders, is mildly impaired in relating adequately with others, and is
moderately impaired in dealing with stress due to pain and anxiety.
Additionally, a vocational expert, Peter Mantee, testified at the
administrative hearing that an employee like Lesterhuis who missed four days of
work per month would be precluded from performing any jobs available in large
numbers in the national economy.
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After considering this and other evidence, the ALJ issued a decision on
September 23, 2010. The ALJ applied the standard five‐step sequential evaluation
for determining whether a claimant is disabled.2 He determined that, given
Lesterhuis’s age, work experience, education, and residual functional capacity, he
could perform jobs that exist in significant numbers in the national economy, such
2 The Commissioner has established a five‐step sequential evaluation for
adjudication of disability claims, set forth at 20 C.F.R. § 404.1520. First, the
Commissioner must determine whether the claimant is currently engaging in
substantial gainful activity. Id. § 404.1520(b). If so, the claimant is not disabled.
Second, if the claimant is not working, the Commissioner must determine
whether the claimant has a “severe” impairment, i.e., an impairment that limits
his ability to do physical or mental work‐related activities. Id. §§ 404.1520(c),
404.1521. If not, the claimant is not disabled. Third, if there is a severe
impairment, the Commissioner determines if the impairment meets or equals the
criteria of a per se disabling impairment contained in Appendix 1 to 20 C.F.R. Part
404, Subpart P (Listings of Impairment). 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526. If the claimant’s impairment does not meet or equal a listed impairment,
before proceeding to step four, the Commissioner determines, based on all the
relevant medical and other evidence of record, the claimant’s “residual functional
capacity,” which is what the claimant can still do despite the limitations imposed
by his impairment. Id. §§ 404.1520(a)(4), (e), 404.1545(a). Fourth, the
Commissioner considers whether the claimant’s residual functional capacity
permits him to return to his past relevant work. Id. §§ 404.1520(e), (f), 404.1560(b).
If so, the claimant is not disabled. Fifth, if the claimant cannot return to his past
work, the Commissioner considers, based on the claimant’s residual functional
capacity and vocational factors, whether the claimant can do other work existing
in significant numbers in the national economy. Id. §§ 404.1520(g), 404.1560(c). If
so, the claimant is not disabled.
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as “call out operator” and “surveillance system monitor.” A.R. 45–46. The ALJ
also determined that Lesterhuis had a residual functional capacity to perform
sedentary work but added a long list of limitations.
After the ALJ issued his decision, Lesterhuis timely filed a request for
review to the Appeals Council. As part of his appeal, Lesterhuis submitted
several pieces of new evidence, which the Appeals Council added to the record.
As relevant to this appeal, Lesterhuis provided to the Appeals Council the
medical opinion of another treating physician, Dr. Donovan Holder. Dr. Holder
concluded in part that Lesterhuis: (1) can only occasionally reach, push, and pull;
(2) can stand and walk for only one hour each in an eight‐hour workday; (3) can
lift and carry less than ten pounds for two to three hours per day; (4) is required
to alternate between sitting and standing; (5) is likely to be absent from work
more than four days per month; (6) has symptoms that are frequently severe
enough to interfere with the attention and concentration needed to perform even
simple work tasks; and (7) should not work more than four hours per day. A.R.
481–82.
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On September 12, 2011, the Appeals Council summarily denied review after
adding Dr. Holder’s medical opinion and several other exhibits to the record. The
Appeals Council wrote: “We found no reason under our rules to review the
[ALJ’s] decision. Therefore we have denied your request for review.” A.R. 3. The
Council added: “In looking at your case, we considered the reasons you disagree
with the decision and the additional evidence listed on the enclosed Order of
Appeals Council. We found that this information does not provide a basis for
changing the [ALJ’s] decision.” A.R. 3–4.3
On December 11, 2012, Lesterhuis filed this action in the Western District of
New York, appealing the Commissioner’s final decision on a number of grounds.
The district court granted the Commissioner’s motion for judgment on the
pleadings and dismissed Lesterhuis’s complaint in a judgment entered on August
13, 2014. A notice of appeal was timely filed.
3
The additional evidence listed on the enclosed Order of Appeals Council
includes Dr. Holder’s opinion. A.R. 6.
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DISCUSSION
On appeal, Lesterhuis argues that the Appeals Council erred by failing to
provide an explanation for why it disregarded the treating physician’s opinion
and that the ALJ’s decision is not supported by substantial evidence in light of Dr.
Holder’s opinion.
“[N]ew evidence submitted to the Appeals Council following the ALJ’s
decision becomes part of the administrative record for judicial review when the
Appeals Council denies review of the ALJ’s decision.” Perez v. Chater, 77 F.3d 41,
45 (2d Cir. 1996). “The only limitations stated in [20 C.F.R. §§ 404.970(b) and
416.1470(b)] are that the evidence must be new and material and that it must
relate to the period on or before the ALJ’s decision.” Id. In this case, the parties
agree that Dr. Holder’s opinion was properly included in the record, as it was
new, material, and related to the relevant time period.
Once evidence is added to the record, the Appeals Council must then
consider the entire record, including the new evidence, and review a case if the
“administrative law judge’s action, findings, or conclusion is contrary to the
weight of the evidence currently of record.” 20 C.F.R. § 404.970(b). If the Appeals
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Council denies review of a case, the ALJ’s decision, and not the Appeals
Council’s, is the final agency decision. See Perez, 77 F.3d at 44. Because the
Appeals Council denied review in this case, our review focuses on the ALJ’s
decision. See 42 U.S.C. § 405(g) (“Any individual, after any final decision of the
Commissioner . . . , may obtain a review of such decision by a civil action . . . .”
(emphasis added)).
When reviewing the Commissioner’s decision, we bear in mind that the
ultimate determination of whether a person has a disability within the meaning of
the Act belongs to the Commissioner. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999). We “review the entire administrative record, which includes the new
evidence, and determine, as in every case, whether there is substantial evidence to
support the decision of the Secretary.” Perez, 77 F.3d at 46; see also 42 U.S.C.
§ 405(g). Substantial evidence is “more than a mere scintilla” and “means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). Additionally, on appeal, we may not
“affirm an administrative action on grounds different from those considered by
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the agency.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999)).
The claimant bears the ultimate burden of proving that he was disabled
throughout the period for which benefits are sought. See 20 C.F.R. § 404.1512(a).
The claimant is required to demonstrate that he was unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . 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).
Here, Lesterhuis argues that the ALJ’s decision was not supported by
substantial evidence, particularly in light of treating physician Dr. Holder’s
medical opinion, which was added to the record by the Appeals Council. We
agree that, on the facts of this case, the ALJ’s decision was not supported by
substantial evidence because the new evidence contradicted the ALJ’s conclusion
in important respects. See Perez, 77 F.3d at 47. Specifically, Dr. Holder is a treating
physician who provided an opinion that is (1) generally entitled to controlling
weight, (2) likely dispositive on the issue of disability (if entitled to controlling
weight), and (3) uncontroverted by other evidence in the record.
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First, Dr. Holder is a treating physician, so SSA regulations give his
opinions “controlling weight” so long as they are “well‐supported by medically
acceptable . . . techniques and [are] not inconsistent with the other substantial
evidence in [the record].” 20 C.F.R. § 404.1527(c)(2). On remand, the ALJ might
conclude that Dr. Holder’s opinion is not entitled to any weight, much less
controlling weight, but that determination should be made by the agency in the
first instance, and we should refrain from “affirm[ing] an administrative action on
grounds different from those considered by the agency.” Burgess, 537 F.3d at 128
(quoting Melville, 198 F.3d at 52).
Second, at least one of Dr. Holder’s opinions would, if given controlling
weight, be dispositive as to disability given the other evidence in the record.
Specifically, we focus on Dr. Holder’s opinion that Lesterhuis is likely to be absent
from work more than four days per month. See A.R. 481. In testimony before the
ALJ, vocational expert Peter Mantee offered uncontroverted testimony that, if an
employee like Lesterhuis missed four days of work per month, it would preclude
that claimant’s ability to perform any jobs available in large numbers in the
national economy. See A.R. 71. Based on Mantee’s uncontroverted testimony, Dr.
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Holder’s conclusion that Lesterhuis would likely miss more than four days of
work per month would, if credited, suffice on its own to support a determination
of disability.
Third, the parties identify nothing in the record that contradicts Dr.
Holder’s conclusion about the number of days each month that Lesterhuis is
likely to be absent from work. Even though the district court concluded, without
explanation, that portions of Dr. Holder’s opinion are contrary to the observations
and opinions of doctors Byrne, Rechtine, and Whitbeck, nothing in the record
calls into question Dr. Holder’s conclusion that Lesterhuis is likely to miss more
than four days of work per month. The record therefore does not include any
contrary “substantial evidence” that would support the ALJ’s conclusion
regarding disability based on the number of work days that Lesterhuis would
miss per month.
Additionally, the ALJ had before him one other piece of evidence that
supported Dr. Holder’s conclusion: the opinion of the non‐doctor therapist Frank
Williams, who concluded that Lesterhuis would miss more than four days of
work per month. The ALJ gave “no to little weight” to Williams’s opinion because
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Williams “is a therapist and not an acceptable medical source.” A.R. 44. The same
critique does not apply, however, to the opinion of Dr. Holder, who, the parties
agree, is a medical expert. As such, the basis for the ALJ’s rejection of Williams’s
opinion does not provide substantial evidence to call into question Dr. Holder’s
opinion.
In concluding that the ALJ’s decision was supported by substantial
evidence, the district court identified a number of gaps in Dr. Holder’s knowledge
of Lesterhuis’s condition. But the district court’s substantive critique of Dr.
Holder’s opinions places courts, and not the SSA, in the position of making
factual and medical determinations about the evidence before the agency. Neither
the ALJ nor the Appeals Council analyzed the substance of Dr. Holder’s opinion,
and we may not “affirm an administrative action on grounds different from those
considered by the agency.” Burgess, 537 F.3d at 128 (quoting Melville, 198 F.3d at
52).
Accordingly, based on the record before us, which includes Dr. Holder’s
opinion, we hold that the ALJ’s decision is not supported by substantial evidence
in the record. We note, however, that we reach no conclusions about the full
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range of circumstances in which an ALJ’s decision is, or is not, supported by
substantial evidence. Additionally, because we hold that the ALJ’s decision was
not supported by substantial evidence, we need not consider Lesterhuis’s
alternative argument that the Appeals Council has an independent obligation to
provide “good reasons” before declining to give weight to the new, material
opinion of a treating physician submitted only to the Appeals Council and not to
the ALJ. See 20 C.F.R. § 404.1527(c)(2).
CONCLUSION
For the reasons stated herein, we VACATE the district court’s judgment
and REMAND to the Commissioner for further proceedings.
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