1 15-2569-cv Evans v. Colvin UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY 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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 19 th day of May, two thousand sixteen.
PRESENT: JOHN M. WALKER, JR., REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges ,

---------------------------- ---------------------------- -------------- KATHERINE EVANS, Plaintiff-Appellant , v. No. 15-2569-cv CAROLYN COLVIN, Commissioner of Social Security, Defendant-Appellee

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: MARK SCHNEIDER, ESQ., Plattsburgh, New York.
APPEARING FOR APPELLEE: ROBERT R. SCHRIVER, Special Assistant United States Attorney (Stephen P. Conte, Regional Chief Counsel, Office of the General Counsel, Social Security Administration, on the brief ), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, New York.2 Appeal from a judgment of the United States District Court for the Northern District of New York (Randolph F. Treece, Magistrate Judge ). 1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on August 11, 2015, is VACATED and
REMANDED. Plaintiff Katherine Evans appeals from the di strict court’s affirmance of a decision of the Commissioner of Social Security (“Commissioner”) denying Evans’s application for Social Security disability benef its. In such a case, we review the administrative record de novo, and will uphold the Co mmissioner’s decision if it is supported by substantial evidence and the correct legal standards were applied. Se e Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010); see also Talavera v. Astrue, 697 F.3d 145 , 151 (2d Cir. 2012) (“Substantial evidence . . . mean s such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (inter nal quotation marks om itted)). In applying these standards here, we assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessa ry to explain our d ecision to vacate and remand. 1. Failure To Cons ider New Evidence Evans argues that the Co mmissioner erred in failing to consider new records submitted to the Appeals Counc il, including medical examin ation reports from November 2011 through July 2012 and a July 2012 determination by the Veteran’s Administration

1 Magistrate Judge Treece was, with the cons ent of the parties pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, designated to conduct a ll proceedings in this matter, including the entry of final judgment.3 (“VA”) that Evans was permanently disabl ed. The Appeals Council acknowledged the materials but deemed them irrelevant to the Commissioner’s decision because they pertained to a time after June 17, 2011, th e end of the period under consideration. In her reply brief, Evans concedes that th e relevant period runs through June 17, 2011, rather than Apri l 18, 2013, when the Appeals Counc il denied her request for review. That is correct, as 20 C.F.R. § 404.976(b)(1) plainly states that the “Appeals Council will consider . . . any new and materi al evidence submitted to it whic h relates to the period on or before the date of the administrative law j udge hearing decision” (emphasis added), which in this case was June 17, 2011. But even with the period so narrowed, Evans’s argument has merit. The VA determined that certain of Evans’s conditions had disablin g effect as of April 24, 2011—two months before the close of the relevant period—while other conditions had disabling effect in 2012. These conclusion s were reached based on evidence pertaining both to the period relevant he re and thereafter. In the end, however, the VA granted Evans’s disability entitlement ef fective April 24, 2011. Th ese circumstances precluded the Appeals Council from dismissing the VA evidence as irrelevant because it was unrelated to the time period at issue. “[W]h ile the determination of another governmental agency that a soci al security disability bene fits claimant is disabled is not binding on the Secretary, it is entitled to some weight and sh ould be considered.” Hankerson v. Harris, 636 F.2d 893, 896–97 (2d Cir. 1980) (brackets and internal qu otation marks omitted). See also Machia v. Astrue, 670 F.Supp.2d 3 26, 336 (D. Vt. 2009) (warning that VA determination may not be “completely ignore[d] ” and observing that “[t]he point of the4 Second Circuit’s admonition to a ccord VA determinations ‘some weight’ is that in addition to the oral testimony and medical evidence, VA rating decisions are another item to be placed on the evidentiary scale” ). Thus, we remand for the re quisite consider ation of new evidence pertaining to the relevant period. We do not, however, identify error in the Appeals Council’s determination that the medical examination reports from November and December 2011 were not material to the disability determination up to June 2011. While evidence from a la ter evaluation can be material to an earlier time peri od, such evidence must be both (1 ) relevant to the claimant’s condition during the relevant period and (2) pr obative, and additiona lly must create “a reasonable possibility that the new evidence would have infl uenced the Commissioner to decide claimant’s application differently.” Pollard v. Halter, 377 F. 3d 183, 193 (2d Cir. 2004) (brackets and internal quotation ma rks omitted). That is not this case. Dr. Binter assessed Evans on November 25, 2011. Physically, Dr. Binter noted that Evans was neurologically intact in her lower extremity motor st rength and sensation, experienced some difficulty relaxing and s light limitation in her range of motion when raising her legs bilaterally, a nd became uncomfortable while s eated for a long period of time. Mentally, Dr. Binter fo und that Evans was “intelligen t and sensitive,” with normal “thought process, content and me ntation.” R. 663. Dr. Binter concluded that Evans “has no neurological deficits,” noted that her preexisting depression, anxiety, and attention deficit disorders were not related to her injury, and recommended that she take up volunteer work along with treatme nt. Id. at 664. Dr. Gitlin , who conducted a psychiatric examination of Evans on Dece mber 13, 2011, in connection with a lawsuit against the5 stable at which her back inju ry occurred, concurred with D r. Binter’s conclusions. While she found that Evans was “signi ficantly depressed,” she stated that Evans was “intelligent, personable and motivated” and recommended both future paid employment and volunteer work along with other treatment. Id. at 670 –71. Both assessments are consistent with and duplicative of medical evidence before the ALJ at the time of Evans’s disability determination. Accordi ngly, we identify no reasonable po ssibility that the ALJ would have reached a different conclusion based upon th is evidence, rendering it immaterial to the relevant period. 2. Weight Ascribed to Trea ting and Consultative Sources Evans argues that the Commissioner further erred in fa iling adequately to defer to the opinions of the physician’ s assistant (“PA”) who was Ev ans’s primary care provider. While an ALJ may consider ev idence from a PA, such a so urce is not an “acceptable medical source” and therefore ca nnot constitute a “treating source.” See 20 C.F.R. §§ 404.1502, 404.1513(d)(1). We have thus made clear that an ALJ is not required to defer to such a source under the treating source rule, but merely to consider her opinion as with any other probative evidence. See Kohler v. Astrue , 546 F.3d 260, 268

- 69 (2d Cir. 2008). Nonetheless, an ALJ must weigh that opinion according to a number of factors, including the length, nature, and extent of the treatment relationship and the frequency of examination; evidence in suppor t of the opinion; the opinion’s consistency with the record as a whole; and other relevant fact ors. See 20 C.F.R. § 404.1527(c). The record fails to show th at the ALJ adequately considered these factors when weighing PA Thompson’s opinion. As Evans’s primary care provider, PA Thompson6 evaluated Evans over 20 times over a period of 16 months. She noted that Evans suffered from chronic back pain despite recent surgery and prescribed medications to treat Evans’s symptoms. She also referred Evans to a pa in management specialist, Dr. Gellis, who prescribed additional medications to trea t Evans’s symptoms. Meanwhile, Evans’s surgeon, Dr. Braun, recommended steroid injec tions, which Dr. Gellis then administered. The ALJ failed to acknowledge any of this ev idence weighing in favor of PA Thompson’s opinion. Accordingly, we remand for the ALJ to reevaluate th e weight owed PA Thompson’s opinion in light of the factors set forth in 20 C.F.R. § 40 4.1527(c). Further, to the extent the ALJ discre dited PA Thompson’s assessment s as merely reflective of Evans’s subjective reports of pain, we remand fo r the reasons discussed in the next section of this order. 3. Credibility Determination Evans argues that the Commissioner erred in failing to credit Evans’ account of the severity of her impairments. Where s upported by objective medical evidence, a claimant’s subjective evidence of pain is entitled to great wei ght. Simmons v. U.S. R. R. Ret. Bd., 982 F.2d 49, 56 (2d Cir. 1992). If a claimant’s subjective evidence of pain suggests a greater severity of impairment than can be demonstrated by objective evidence alone, the ALJ must consider other evidence, such as the claimant’s daily activities, duration and frequency of pain, medicati on, and treatment. See 20 C.F.R. § 404.1529(c)(3). Where su pported by specific reas ons, “an ALJ’s credibility determination is generally entitled to defere nce on appeal.” Selia n v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013).7 Here, although the ALJ made specific findi ngs regarding Evans’s treatment history, see 20 C.F.R. §§ 404.1529(c)(3)(v), 416.929(c )(3)(v); the consistency of Evans’s own statements, see S.S.R. 96-7p (S.S.A. July 2, 1996), 1996 WL 374186; and the consistency of her reported symptoms with the obje ctive medical evidence, see 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2), the ALJ largely ignored re cord evidence supporting Evans’s complaints of pain. For example, all of Evans’s treating and consulting doctors diagnosed her with chronic ba ck pain. Several observed discomfort, tenderness, and a limited range of motion. Both Dr. Ge llis and Dr. Braun recommended additional measures to treat Evans’s pain following her surgery, including steroid injections, a TENS unit, and physical therapy. Dr. Arguelle s likewise recommended aggressive spinal rehabilitation. These doctors seemed intent on treating Evans’s condition and relieving her pain; not one of them suggested that Evans was exaggerating her symptoms. And while PT Hando noted the pr esence of Waddell’s signs, 2 he ascribed no significance to those signs, ultimately givi ng Evans a low back pain disability score of 70%. Meanwhile, Evans’s daily activ ities were significantly limited. She reported that she spent most days lying down, was unable to drive for extended periods of time, and was capable of doing about 15% of what she previo usly had been able to do. She was also retired from the Vermont National Guard. On this record, we cannot c onclude that the ALJ’s adve rse credibility determination of Evans’s credibility—and particularly his finding of “documented symptom

2 Waddell’s signs are “a clinical test for patien ts with low back pain that can be used to indicate whether the patient is exaggerating sy mptoms.” Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 420 (6th Cir. 2008).8 exaggeration”—is supported by substantial evidence. We th erefore remand for the ALJ to reassess Evans’s credib ility in accordance with the factors set forth under 20 C.F.R. § 404.1529(c)(3). 4. Conclusion For the reasons stated, we VACATE the judgment of the district court and REMAND with instructions for the district c ourt to remand this case to the Commissioner to evaluate Evans’s disability claim consiste nt with the controlling law identified herein.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court