Genier v. Astrue, No. 09-3991 (2d Cir. 2010)

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09-3991-cv Genier v. Astrue 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2009 4 (Argued: March 9, 2010 5 Decided: May 27, 2010) Docket No. 09-3991-cv 6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X 7 CRAIG J. GENIER, Plaintiff-Appellant, 8 9 10 11 12 13 14 15 16 v. MICHAEL J. ASTRUE , Commissioner of Social Security, Defendant-Appellee. -------------------------------X 17 Before: LEVAL, SACK, and WESLEY , Circuit Judges. 18 19 20 Appeal from the judgment of the United States District Court for the Northern District of New York (Peebles, M.J.) affirming a denial of benefits to the plaintiff by the Commissioner of Social Security. We vacate the judgment and remand for further proceedings. 21 22 MARK SCHNEIDER , Plattsburgh, New York, for Appellant. 23 24 KRISTINA COHN , Special Assistant U.S. Attorney (Stephen P. Conte, Acting Regional Chief Counsel, 1 09-3991-cv Genier v. Astrue 1 2 3 4 5 6 Office of the General Counsel, Social Security Administration, on the brief), for Andrew T. Baxter, Acting United States Attorney, Northern District of New York, Syracuse, New York, for Appellee. PER CURIAM. Plaintiff Craig Genier, an applicant for disability benefits under the Social Security Act, 7 42 U.S.C. § 401 et seq. ( the Act ), appeals from the judgment of the United States District 8 Court for the Northern District of New York (Peebles, M.J.),* which affirmed the agency s denial 9 of benefits. Genier argues that the administrative law judge who rendered the decision of the 10 Commissioner erred by failing to consider all of the relevant evidence. We agree. We 11 accordingly vacate the judgment of the district court and remand the case for further proceedings. 12 BACKGROUND 13 Genier filed an application for Supplemental Security Income and Disability Insurance 14 Benefits under the Act on April 4, 2006. He alleged that he had been unable to work since 15 August 13, 2005, due to his morbid obesity and related ailments, including, at various times, 16 severe sleep apnea, back pain, and knee pain. The Commissioner denied his application for 17 benefits, and Genier requested a hearing before an administrative law judge ( ALJ ). The ALJ 18 conducted a hearing and on May 8, 2008, issued a decision denying Genier s claims. That 19 decision became the final decision of the Commissioner when the Appeals Council denied 20 Genier s request for review on September 8, 2008. * Upon the consent of the parties, the case was referred to a magistrate judge, who conducted the proceedings and decided the case pursuant to 28 U.S.C. § 636(c)(1). 2 09-3991-cv Genier v. Astrue 1 Genier commenced an action in the United States District Court for the Northern District 2 of New York on September 30, 2008, seeking review of the denial of benefits pursuant to 42 3 U.S.C. §§ 405(g) and 1383(c). The district court affirmed the agency s decision, finding that it 4 was supported by substantial evidence, on September 22, 2009. 5 Evidence 6 Genier asserted that he became unable to work in August 2005 as a result of morbid 7 obesity and several related impairments, including sleep apnea and mobility and breathing 8 problems. At the time he stopped working, Genier was twenty-seven years old and weighed 9 approximately 400 pounds. 10 On May 11, 2006, Genier filled out a claimant questionnaire for the Division of Disability 11 Determinations in the New York State Office of Temporary and Disability Assistance, the state 12 agency charged with adjudication of disability claims on behalf of the federal government. On 13 the questionnaire, Genier described his daily activities. He wrote, in pertinent part, that he 14 tr[ied] to feed dogs and tr[ied] to let dogs out, but that his father help[ed] [him] with feeding 15 and letting dogs out. He also wrote that he tr[ied] to do thing[s] around house, like dishes[,] 16 vacuum[,] etc., and tr[ied] to do [his] own laundry, but that he need[ed] help with the 17 laundry because he tired easily, and that he was restricted in other household chores because it 18 was difficult for [him] to get around. 19 In November 2007, Genier underwent bariatric surgery. As a consequence of the surgery 20 and related treatments, Genier reduced his weight from 494 pounds in June 2006 to 327 pounds 21 at the time of his hearing before the ALJ, in April 2008. At the hearing, Genier testified that he 3 09-3991-cv Genier v. Astrue 1 wished to return to work as soon as his doctor permitted him to do so. Genier testified that he 2 continued to suffer from sleep apnea, high blood pressure, and back pain, but that they had 3 improved significantly with treatment and as a result of his surgery and weight loss. He testified 4 that he continued to suffer from severe knee pain, which caused his knee to give out 5 approximately once a week. 6 Genier further testified that, as of the time of his hearing, he was sometimes able to clean, 7 cook, and do outdoor chores, including snow shoveling and plowing. He indicated that he had 8 been more substantially limited in these activities prior to his surgery and weight loss. He 9 reported being able to stand or walk for ten to fifteen minutes at a time, and that he had regained 10 the ability to climb stairs. 11 The ALJ s Decision 12 In determining that Genier was not disabled, the ALJ used the sequential evaluation 13 process set forth at 20 C.F.R. §§ 404.1520 and 416.920. The ALJ concluded that Genier s 14 obesity and sleep apnea were severe impairments, but that they did not correspond to an 15 impairment set forth in Appendix 1 of 20 C.F.R. Part 404, Subpart P. The ALJ found that Genier 16 retained the residual functional capacity ( RFC ) to perform a wide range of medium work. 17 Specifically, he concluded that Genier could lift up to thirty pounds occasionally and up to 18 twenty pounds regularly, and that he could sit, stand, and walk for six hours each in an eight-hour 19 workday. In reaching this conclusion, the ALJ considered Genier s assertions of pain and 20 fatigue, but did not credit those assertions, as he found them to be contrary to the objective 21 medical evidence and other evidence of record, including Genier s reports of his daily activities. 4 09-3991-cv Genier v. Astrue 1 The ALJ s decision to discredit Genier s assertions was based, at least in part, on the fact that, 2 according to the ALJ, Genier indicated in a questionnaire dated May 11, 2006 that he was able 3 to care for his dogs, vacuum, do dishes, cook, and do laundry. The ALJ added that Genier 4 testified at the hearing that he performs these household chores. 5 Because Genier s prior jobs required him to perform at exertional levels beyond his RFC, 6 he could not perform his past relevant work. Given his age, education, experience, and RFC, 7 however, the ALJ concluded that under Medical-Vocational Rule 203.29, set forth at 20 C.F.R. 8 Part 404, Subpart P, Appendix 2, Genier was capable of doing jobs that existed in significant 9 numbers in the national economy. Because he determined that Genier was capable of substantial 10 productive activity, the ALJ ruled that Genier was not disabled under the Act, and denied his 11 claims. 12 13 DISCUSSION Genier argues that the ALJ erred by refusing to credit his reports of pain and fatigue on 14 the ground that they were inconsistent with the objective medical evidence and other evidence of 15 record. He also argues that the magistrate judge erred in refusing to consider an opinion letter 16 submitted by his treating physician after the administrative hearing, and that the ALJ erred (1) by 17 finding that Genier had the residual functional capacity to perform work at the medium 18 exertional level; (2) by failing to consult a vocational expert when determining whether Genier 19 could perform jobs that existed in significant numbers in the national economy; and (3) by failing 20 to recontact one of Genier s treating physicians when the doctor did not submit a written 21 evaluation along with his treatment records. We agree with Genier s first contention. The ALJ s 5 09-3991-cv Genier v. Astrue 1 disbelief of Genier s claims as to his level of capacity was based on the ALJ s mispercption of 2 the evidence, which in fact did not contradict Genier s claims. 3 I. Standard of Review and Governing Law 4 We review the ALJ s conclusions of law de novo and his findings of fact under a 5 substantial evidence standard. 42 U.S.C. § 405(g); Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 6 1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as 7 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal 8 quotation marks omitted). Even where the administrative record may also adequately support 9 contrary findings on particular issues, the ALJ s factual findings must be given conclusive 10 effect so long as they are supported by substantial evidence. Schauer v. Schweiker, 675 F.2d 55, 11 57 (2d Cir. 1982). 12 In performing the evaluation process the Commissioner has established to determine 13 whether an individual is disabled for purposes of the Act, see 20 C.F.R. §§ 404.1520, 416.920; 14 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987), the ALJ must determine whether a 15 claimant who has a severe impairment nonetheless has the residual functional capacity 16 ( RFC ) to perform work available to him. See 20 C.F.R. § 404.1520, 404.1560. A claimant s 17 RFC is the most [he] can still do despite [his] limitations. 20 C.F.R. § 416.945(a)(1). When 18 determining a claimant s RFC, the ALJ is required to take the claimant s reports of pain and 19 other limitations into account, 20 C.F.R. § 416.929; see McLaughlin v. Sec y of Health, Educ. & 20 Welfare, 612 F.2d 701, 704-05 (2d Cir. 1980), but is not required to accept the claimant s 21 subjective complaints without question; he may exercise discretion in weighing the credibility of 6 09-3991-cv Genier v. Astrue 1 the claimant s testimony in light of the other evidence in the record. Marcus v. Califano, 615 2 F.2d 23, 27 (2d Cir. 1979). 3 The regulations provide a two-step process for evaluating a claimant s assertions of pain 4 and other limitations. At the first step, the ALJ must decide whether the claimant suffers from a 5 medically determinable impairment that could reasonably be expected to produce the symptoms 6 alleged. 20 C.F.R. § 404.1529(b). That requirement stems from the fact that subjective 7 assertions of pain alone cannot ground a finding of disability. 20 C.F.R. § 404.1529(a). If the 8 claimant does suffer from such an impairment, at the second step, the ALJ must consider the 9 extent to which [the claimant s] symptoms can reasonably be accepted as consistent with the 10 objective medical evidence and other evidence of record. Id. The ALJ must consider 11 [s]tatements [the claimant] or others make about [his] impairment(s), [his] restrictions, [his] 12 daily activities, [his] efforts to work, or any other relevant statements [he] make[s] to medical 13 sources during the course of examination or treatment, or to [the agency] during interviews, on 14 applications, in letters, and in testimony in [its] administrative proceedings. 20 C.F.R. § 15 404.1512(b)(3); see also 20 C.F.R. § 404.1529(a); S.S.R. 96-7p. 16 II. 17 The ALJ s Credibility Determination Purportedly applying this framework, the ALJ found that Genier s medically 18 determinable impairments could reasonably be expected to produce the alleged symptoms; 19 however, the claimant s statements concerning the intensity, persistence and limiting effects of 20 these symptoms are not credible to the extent they are inconsistent with the . . . evidence of 21 record. 7 09-3991-cv Genier v. Astrue 1 Before finding that Genier was not a credible reporter of his own limitations, the ALJ was 2 required to consider all of the evidence of record, including Genier s testimony and other 3 statements with respect to his daily activities. 20 C.F.R. § 404.1529, 404.1545(a)(3). The 4 decision, however, was based on so serious a misunderstanding of Genier s statements that it 5 cannot be deemed to have complied with the requirement that they be taken into account. The 6 ALJ wrote that Genier indicated in a questionnaire dated May 11, 2006 that he was able to care 7 for his dogs, vacuum, do dishes, cook, and do laundry. In fact, Genier indicated on the 8 questionnaire that he tried to care for his dogs, to do thing[s] around house, like dishes[,] 9 vacuum[,] etc., and to do his laundry, but that he required the assistance of a parent for each of 10 11 these tasks because of his severe fatigue. In addition, the ALJ s decision was impaired by a misunderstanding of Genier s 12 testimony at his hearing relating to his ability to perform[] these household chores. After 13 reviewing Genier s responses on the May 11 questionnaire, the ALJ wrote, The claimant also 14 testified at the hearing that he performs these household chores. That testimony, however, did 15 not pertain to the same time period as Genier s written statements: it related to Genier s capacity 16 at the time of the hearing almost two years after he filled out the written questionnaire and six 17 months after his bariatric surgery. Accordingly, Genier s testimony did not contradict his 18 assertions that he had been substantially impaired by pain and fatigue prior to his treatment and 19 surgery. 20 21 Because the ALJ s adverse credibility finding, which was crucial to his rejection of Genier s claim, was based on a misreading of the evidence, it did not comply with the ALJ s 8 09-3991-cv Genier v. Astrue 1 obligation to consider all of the relevant medical and other evidence, 20 C.F.R. § 2 404.1545(a)(3), and cannot stand. 3 Finally, we note Genier s argument that the ALJ erred in not soliciting a statement from 4 Genier s surgeon, Dr. Hixson, before ruling on his case. See 20 C.F.R. § 404.1512(e)(1) ( When 5 the evidence we receive from your treating physician . . . or other medical source is inadequate 6 for us to determine whether you are disabled . . . . [w]e will first recontact your treating physician 7 . . . or other medical source to determine whether the additional information we need is readily 8 available. ). Because we remand on other grounds, we need not consider whether, under the 9 circumstances, the ALJ s failure to develop the record in this manner would have independently 10 warranted remand. See Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) ( Because a hearing on 11 disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative 12 obligation to develop the administrative record. ). However, now that the ALJ has been alerted 13 to the existence of a letter from Dr. Hixson that tends to support Genier s assertion of disability 14 and to undermine the ALJ s prior findings that Genier was not credible and not disabled, the ALJ 15 should consider that evidence in ruling anew in Genier s case. 16 17 CONCLUSION We vacate the judgment of the district court and remand for further proceedings. 9

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