19-170 Gough v. Saul 

### 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 PROC EDURE 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 ELEC TRONIC DATABASE (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 th e Second Circuit, held at the Thurgood Marshall United States Co urthouse, 40 Foley Square, in the City of New York, on the 13 th day of January, two thousand twenty.
PRESENT: PETER W. HALL, Circuit Judge , JED S. RAKOFF, District Judge

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_____________________________________ Rachelle Gough, Plaintiff

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Appellant , v. No. 19-170 Andrew Saul, Commissioner of Soci al Security Administration, Defendant

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Appellee.

_____________________________________ *Judge Jed S. Rakoff, of the Unite d States District Cour t for the Southern Di strict of New York, sitting by designation. Judge Robert D. Sack, origin ally a member of the panel, recused himself from consideration of this matter. The two remain ing members of the panel are in agreement and have decided this case in accordance with S econd Circuit Internal Operating Procedure E(b). See 28 U.S.C. § 46(d); cf. United States v. Desimone , 140 F.3d 457, 458 (2d Cir. 1998). For Appellant: M ARK A. S CHNEIDER , Law Office of Mark A. Schneider, Plattsburg, NY

### 2 For Appellee: K ATHRYN P OLLACK , Special Assistant United States Attorney (Ellen E. Sovern, Acting Regional Chief Counsel–Region II, Office of the General Counsel, Social Security Administration, on the brief ), for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY Appeal from a judgment of th e United States District Court for the Northern District of New York (Hummel, M.J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is VACATED AND REMANDED. Plaintiff–Appellant Rachelle Gough appeals from a j udgment of the U.S. District Court for the Northern District of New York (Hummel, M.J. 1 ) affirming the decision of the Commissioner of Social Security and dismissing Gough’s co mplaint. Gough challenges the Commissioner’s denial of disability benefits under the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3). The Commissioner's fina l determination was based on a finding by an Administrative Law Judge (“ALJ”) that Gough was not disabled under the Social Security Act. The district court granted the Commissioner’s motion for judgment on the pleadings and dismissed Gough’s complaint. 2019 WL 162018 (N.D .N.Y. Jan. 9, 2019). Gough timely appealed. We assume the parties’ familiarity with the unde rlying facts, the procedural hi story, and the issues on appeal. “In reviewing a district court’s decision upholding a decision of the Commissioner, we review the administrative record de novo to determine whether there is substantial evidence supporting the Commissioner’s decision and whethe r the Commissioner applie d the correct legal standard.” Zabala v. Astrue , 595 F.3d 402, 408 (2d Cir. 2010) (internal quotation marks omitted).

1 Parties consented to direct re view of this matter by a Magistra te Judge pursuant to 28 U.S.C. § 636(c).

### 3 Substantial evidence is “more than a mere scintilla . It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pratts v. Chater , 94 F.3d 34, 37 (2d Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We find that the ALJ erred by not giving adequate weight to the opinions of Gough’s treating physicians and by discrediting Gough’s testimony though it was consiste nt with her treatment records. “[T]he opinion of a claimant’s treating physician as to the nature and severity of the impairment is given ‘controlling weight’ so long as it ‘is well-supported . . . and is not inconsistent with the other substantial evidence in the case record.’” Burgess v. Astrue , 537 F.3d 117, 128 (2d Cir. 2008) (alteration omitted) (quoting 20 C.F. R. § 404.1527(d)(2)). An ALJ who refuses to accord controlling weight to the medical opinion of a treating physician must consider various “factors” to determine how much weight to give to the opinion. Greek v. Colvin , 802 F.3d 370, 375 (2d Cir. 2015). Relevant factors include (i) the nature and extent of the treatment relationship; (ii) the evidence in suppo rt of the treating physician’s opinion; (iii) the consiste ncy of the opinion with the record as a whole; and (iv) whethe r the opinion is from a specialist. 20 C.F.R. § 404.1527(c). Here, the ALJ concluded: “while the medi cal evidence show [sic] there are some limitations of function, they would not preclude all full time work.” We are hard pressed to find support for this conclusion in th e record. Gough was either not employed or working odd jobs during the period in question (January 1, 2014 through May 24, 2016). In fact, Gough has not worked full time since 2010. She left a part-time job in March 2014 when trouble with co-workers led to psychological distress and hos pitalization. There is nothing in the record to suggest that the treating clinicians believed th at Gough could work full time. When Gough suggested that she

### 4 would like to have more structur e in her life, her treat ing therapist recommended “a loose structure for a daily schedule. Allow herself to be somewhat flexible so that she doesn’t speak to herself negatively or harshl y.” Admin. ROA 345. The ALJ concluded that treatment notes fr om August through December 2015 “generally do not suggest significant proble ms in the claimant’s functioni ng.” Sp. App’x 10. Again, this is not supported by the record. Those treatment notes show that when Gough is depressed, she often has trouble motivating herself to get out of bed, and sh e sometimes experience s suicidal thoughts. Dr. A. Evan Eyler outlined similar symptoms in his psychiatric evaluation of Gough in July 2015. At the hearing, Gough described her challenges with low energy and motiv ation. When asked to describe a typical day, Gough said she wakes up around noon, takes the dogs out, tries to write letters, tries to read, tries to crochet, and genera lly tries to keep busy. She said she does the chores “but it takes a lot of, a lot [sic] because I hardly ev en want to take care of my own [activities of daily living], so things kind of get piled up.” Admin. ROA 50. We fear that the ALJ cherry-picked evidence fr om the record to suppor t his conclusion that Gough could work full time even though the record as a whole s uggested greater dysfunction. “Cycles of improvement and debi litating symptoms of mental il lness are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.” Estrella v. Berryhill , 925 F.3d 90, 97 (2d Cir. 2019) (alteration omitted) (quoting Garrison v. Colvin , 759 F.3d 995, 1017 (9th Ci r. 2014)). The ALJ’s relia nce on moments when Gough put significant effort into her Etsy shops or accomplished household chores is misplaced

### 5 given that as a whole her records show great fluctuation in energy and motivation. 2 The ALJ erred in not giving great weight to G ough’s subjective evidence of her symptoms given that objective medical ev idence supported he r descriptions. See Simmons v. U.S. R.R. Ret. Bd., 982 F.2d 49, 56 (2d Cir. 1992) (“It is well settled that a claimant 's subjective evidence of pain is entitled to great weight where, as here, it is supported by objective medical evidence.” (internal quotations and ellipsis omitted) ). The fact that Gough’s testim ony conflicted with the ALJ’s conclusion that she could work full time, when he r testimony was consistent with her treatment records, is not a basis to discount her credibility. In sum, the ALJ’s finding that Gough could work full time is inconsistent with her treatment records and Gough’s testim ony. While we agree with the district court that “[i]t is the ALJ’s sole responsibility to we igh all medical evidence and reso lve material conflicts where sufficient evidence provides fo r such,” Sp. App’x 23 (quoting Bliss v. Colvin , 3:13-cv-1086 (GLS/CFH), 2015 WL 457643 at *10 (N.D.N.Y. Feb. 3, 2015)), here the ALJ did not explain how the evidence conflicted, nor did the ALJ explain how he purporte d to resolve that conflict. See Ferraris v. Heckler , 728 F.2d 582, 587 (2d Cir. 1984) (“[T]he cr ucial factors in any determination must be set forth with sufficient specificity to en able us to decide whether the determination is supported by substantial evidence.”). If the ALJ put greater weight on other evidence in the record, the ALJ was required to explain why he gave that evidence more weight than the records from treating clinicians. See § 404.1527(d)(2) (“[The Commissioner] w ill always give good reasons in

2 The ALJ’s characterization of the chores co mpleted by Gough also misstates the record. E.g. , compare Sp. App’x. 8 (“At hearing [sic], the claimant reported that sh e is able to drive and that she grocery shops, suggesting an abili ty to interact with others.”) with Admin. ROA 50. (“When we do grocery shop, I usually stay in the car because I’m too anxious to go inside.”).

### 6 [his] notice of determina tion or decision for the weight [he] gi ve[s] [claimant’s] treating source’s opinion.”). It is possible that the ALJ did not view th e treatment records as conflicting with the evaluating opinions because the treatment record s did not include an explicit finding that Gough could not work full time. Indeed, when a differ ent ALJ viewed the same treatment records in combination with statements fr om treating clinicians, he conc luded that Gough was disabled starting the day after the time period in this appe al. If the ALJ perceived th ere to be a gap in the record, he had a duty to fill that gap, especially where–as here–the claimant was appearing pro se. Rosa v. Callahan , 168 F.3d 72, 79 (2d Cir. 1999) (“[W]here th ere are deficiencies in the record, an ALJ is under an affirmative obl igation to develop a claimant's medical history . . . .”). For the reasons stated above, we vacate the de cision of the district court. We remand to the district court with instructions to remand the matter to the Commissioner for further proceedings consistent with this order, including directing th e Commissioner to (1) explain whether, and if so, why, he gave greater weight to evaluating clinicians rather than to treating clinicians and, if warranted, request medical source statements fr om Gough’s treating physic ians; (2) allow Gough to supplement the record with any additional re levant medical records; (3) reassess Gough’s credibility in light of any ne wly-obtained and relevant info rmation; and (4) reassess Gough’s residual functional capacity in light of the expanded record. The j udgment of the district court is VACATED and this matter is REMANDED for further proceedings cons istent with this order.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court