20-1109-cv
Holler v. Saul
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 27th day of April, two thousand twenty-one.
PRESENT: JOHN M. WALKER, JR.,
PIERRE N. LEVAL,
DENNY CHIN,
Circuit Judges.
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RICHARD HOLLER,
Plaintiff-Appellant,
-v- 20-1109-cv
ANDREW M. SAUL, COMMISSIONER OF SOCIAL
SECURITY,
Defendant-Appellee.
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FOR PLAINTIFF-APPELLANT: CHRISTOPHER JAMES BOWES, Shoreham,
New York.
FOR DEFENDANT-APPELLEE: VERNON NORWOOD, Special Assistant
United States Attorney (Ellen E. Sovern,
Regional Chief Counsel, Office of the General
Counsel of the Social Security Administration,
on the brief), for Antoinette T. Bacon, United
States Attorney for the Northern District of
New York, Syracuse, New York.
Appeal from the United States District Court for the Northern District of
New York (Mordue, J.).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Richard Holler appeals from a judgment of the district
court entered January 29, 2020, affirming a decision of defendant-appellee Andrew Saul,
Commissioner of the Social Security Administration (the "Commissioner"), denying
Holler's claim for disability insurance benefits based on his bipolar disorder, anxiety,
and Type 2 diabetes. The district court explained its reasoning in a memorandum
decision and order entered the same date. On appeal, Holler argues that the
Administrative Law Judge (the "ALJ") erred in denying him Social Security Income
benefits (1) because the ALJ did not give proper consideration to Holler's treating
physicians' opinions, and thus the ALJ's disability determination was not supported by
substantial evidence, and (2) by adopting a vocational expert's testimony that Holler
could perform work that exists in significant numbers in the national economy. We
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assume the parties' familiarity with the underlying facts, procedural history of the case,
and issues on appeal.
When reviewing a benefits determination by the Commissioner, we
conduct a de novo review of the administrative record "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) (internal quotation marks omitted). "Substantial evidence is evidence that
a reasonable mind might accept as adequate to support a conclusion." Estrella v.
Berryhill, 925 F.3d 90, 95 (2d Cir. 2019) (internal quotation marks omitted).
Holler argues that the ALJ "improperly discounted the well-supported
opinions of Mr. Holler's treating psychologist, Dr. James [Thalmann], 1 treating
psychiatrist, Dr. Gina Perez, and the consultative physician, Dr. Lauren Stack." Holler
Br. at 36. We disagree.
First, for substantially the reasons set forth by the district court, we
conclude that the ALJ did not err in affording Dr. Thalmann's opinions "some weight,"
but not controlling weight. CAR at 22. Some of Dr. Thalmann's opinions were
unsupported by any treatment notes or explanation, see CAR at 341 (checking a box that
Holler has "Limited" ability to sustain concentration and persistence without providing
1 The Certified Administrative Record ("CAR") is inconsistent as to the spelling of
Dr. Thalmann's name, but the doctor signs his name as "Thalmann," CAR at 339, so that is the
spelling we use here.
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the requested explanation), and others were contradicted by Dr. Thalmann's own
previous treatment notes as well as other evidence in the record, compare CAR at 340
(Dr. Thalmann describing Holler's mood as "hypo sensual," "active," and "euphoric [to]
dysphoric" without providing additional details despite question asking for examples),
with CAR at 650, 652-57, 659-60 (Dr. Thalmann describing Holler's mood on numerous
occasions as "stable," "euthymic," "balanced" and/or "optimistic"), and CAR at 382 (Dr.
Stack describing Holler's mood as "Euthymic"). After carefully considering all of the
evidence, the ALJ was correct to afford some, but not controlling, weight to Dr.
Thalmann's opinions. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (explaining
that ALJs need not afford "controlling weight where, as here, the treating physician
issued opinions that are not consistent with other substantial evidence in the record,
such as the opinions of other medical experts" or where the treating physician's
conclusions are "not particularly informative").
On this point, Holler also argues that the ALJ was required to "explicitly"
discuss "the relevant factors set forth in the treating physician regulations" before
"assign[ing] less than controlling weight to [Dr. Thalmann's] opinion." Holler Reply Br.
at 2-3 (citing Estrella, 925 F.3d at 95). Indeed, in Estrella, we held that when determining
how much weight to give a treating physician's medical opinion, an ALJ commits
procedural error when it fails to "explicitly" consider "(1) the frequency, length, nature,
and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3)
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the consistency of the opinion with the remaining medical evidence; and (4) whether
the physician is a specialist." Estrella, 925 F.3d at 95-96 (internal quotation marks and
alteration omitted). But we also explained that so long as the ALJ "provided good
reasons for its weight assignment," and "a searching review of the record assures us that
the substance of the treating physician rule was not traversed, we will affirm." Id. at 96
(internal quotation marks and alteration omitted). Here, as a threshold matter, the ALJ
discussed the first three factors listed above. In any event, where, as here, the ALJ
provided a detailed explanation for her decision to give less than controlling weight to a
treating physician's opinions, which we can easily understand from a review of the
CAR, the ALJ's failure to explicitly discuss each of the four factors described above is
not per se reversible error.
Second, Holler argues that the ALJ failed to specifically address Dr.
Perez's opinions, but the ALJ reviewed and summarized the treatment notes from The
Institute of Family Health, where Plaintiff was treated by several practitioners,
including Dr. Perez. In any event, "[w]hen, as here, the evidence of record permits us to
glean the rationale of an ALJ's decision, we do not require that [the ALJ] have
mentioned every item of testimony presented" or "explain[] why [s]he considered
particular evidence unpersuasive or insufficient." Mongeur v. Heckler, 722 F.2d 1033,
1040 (2d Cir. 1983).
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Finally, we disagree with Holler's assertion that the ALJ discounted the
opinions of Dr. Stack. To the contrary, the ALJ gave "Dr. Stack's opinions great weight,"
CAR at 23, and the ALJ's residual functional capacity ("RFC") finding explicitly
incorporated Dr. Stack's opinions.
Accordingly, we conclude that the ALJ did not err in weighing the
evidence, and we thus affirm the ALJ's RFC determination as supported by substantial
evidence. And because we conclude that substantial record evidence supports the RFC
finding, we necessarily reject Holler's vocational expert challenge. See generally Butts v.
Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) (noting that Commissioner may rely on
testimony of vocational expert). To the extent Holler continues to press that the
hypothetical presented to the vocational expert should have specifically accounted for
Holler's moderate non-exertional limitations, even if the ALJ’s omission was error, it is
harmless error. See McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014).
* * *
We have considered Holler's remaining arguments and conclude that they
are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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