20-2566 

Bellehsen v. Commissioner 

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 TO 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 6th day of July, two thousand twenty-one.

PRESENT:

SUSAN L. CARNEY,

RICHARD J. SULLIVAN,

JOSEPH F. BIANCO,

Circuit Judges.

_________________________________________

ANI D. BELLEHSEN,

Plaintiff-Appellant,

v. No. 20-2566

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

_________________________________________

FOR APPELLANT: DANIEL A. OSBORN, Osborn Law, P.C., 

New York, NY.

FOR APPELLEE: RACHEL G. BALABAN, (Varuni Nelson, 

Arthur Swerdloff, on the brief), for Jacquelyn 

M. Kasulis, Acting United States Attorney 

for the Eastern District of New York, 

Brooklyn, NY. 
 

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Appeal from a judgment of the United States District Court for the Eastern District 

of New York (Cogan, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered on June 25, 2020, is 

VACATED and the case REMANDED to the agency for further proceedings.

Plaintiff-Appellant Ani D. Bellehsen appeals from the district court’s decision 

affirming the Commissioner of Social Security’s denial of her applications for child disability 

benefits and supplemental security income (“SSI”) under Titles II and XVI, respectively, of 

the Social Security Act (“SSA” or “the Act”). See 42 U.S.C. §§ 401–434, 1381–1383. On 

appeal, Bellehsen argues that the administrative law judge (the “ALJ”), who found she was 

not disabled within the meaning of the SSA, erred by failing to give controlling weight to the 

opinion of her longtime treating psychiatrist, Dr. Stanley Hertz, and by failing to provide 

good reasons for its decision to afford Dr. Hertz’s opinions “some weight, but not great

weight.” ROA 15. We assume the parties’ familiarity with the underlying facts, procedural 

history, and arguments on appeal, to which we refer only as necessary to explain our decision 

to vacate and remand.

The ALJ must afford the opinion of a treating physician controlling weight if it is 

well-supported by medical evidence and “not inconsistent with the other substantial 

evidence” in the record. 20 C.F.R. § 404.1527(c)(2); see Rosa v. Callahan, 168 F.3d 72, 78-79

(2d Cir. 1999).1 Under our precedent, the ALJ must follow a two-step procedure to 

determine the appropriate weight to assign the treating physician’s opinion. Estrella v. 

Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). At step one, “the ALJ must decide whether the 

opinion is entitled to controlling weight.” Id. (citing Burgess v. Astrue, 537 F.3d 117, 128 (2d 

Cir. 2008)). At step two, “if the ALJ decide[d] the opinion is not entitled to controlling 

weight, it must determine how much weight, if any, to give it.” Id. In so doing, the ALJ 

1 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations, emphases, footnotes, 

and citations are omitted.
 

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“must explicitly consider the . . . Burgess factors.” Id. These are: “(1) the frequency, length, 

nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; 

(3) the consistency of the opinion with the remaining medical evidence; and (4) whether the 

physician is a specialist.” Id. at 95–96; see also Burgess, 537 F.3d at 129.

“[F]ailure to explicitly apply the Burgess factors when assigning weight at step two is a 

procedural error.” Estrella, 925 F.3d at 96. Unless the ALJ has “provided good reasons for its 

weight assignment, we are unable to conclude that the error was harmless and consequently 

remand for the ALJ to comprehensively set forth its reasons.” Id. Even so, “[i]f . . . a 

searching review of the record assures us that the substance of the treating physician rule 

was not traversed, we will affirm.” Id.

In Bellehsen’s case, the ALJ did not give controlling weight to the opinions of Dr. 

Hertz, who had treated Bellehsen on roughly a monthly basis from 2011 to 2018.2 The ALJ

gave Dr. Hertz’s opinions “some weight, but not great weight,” explaining that in his view 

those opinions “were not consistent with the medical evidence, which supports a less severe 

degree of limitation.” ROA 15. Instead, the ALJ gave “great weight” to the opinion of 

consulting psychologist Dr. Kathleen Acer, who examined Bellehsen on one occasion, on 

December 28, 2015. ROA 14. 

In deciding not to give Dr. Hertz’s opinions controlling weight, the ALJ did not 

address whether those opinions were “well-supported by medically acceptable clinical and 

laboratory diagnostic techniques.” 20 C.F.R. § 404.1527(c)(2). And in deciding to give Dr. 

Hertz’s opinions no more than “some weight,” the ALJ noted only that Dr. Hertz’s opinions 

“were based on multiple examinations over a prolonged period of time,” without explicitly 

considering any of the other three Burgess factors. ROA 15. This was error. Estrella, 925 F.3d 

at 96; see also Ferraro v. Saul, 806 F. App’x 13, 15 (2d Cir. 2020) (“[M]erely acknowledging the 

existence of treatment relationships is not the same as explicitly considering the frequency, 

length, nature, and extent of treatment.”). We agree with Bellehsen that the ALJ’s opinion 

2 Dr. Hertz treated Bellehsen regularly except for a period in 2013 when Bellehsen was attending an intensive 

outpatient program at St. Luke’s Roosevelt Hospital, where she attended group therapy five days a week.
 

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was fundamentally flawed by its failure to apply the Burgess factors and to provide good 

reasons for not giving Dr. Hertz’s opinions controlling weight. 

Moreover, a “searching review of the record” does not “assure[] us that the substance 

of the treating physician rule was not traversed.” Estrella, 925 F.3d at 96. Bellehsen’s medical 

records show that, over an extended period of time, she was treated—including through 

medication—for anxiety, panic attacks, depression, bipolar disorder, and borderline 

personality disorder, consistent with Dr. Hertz’s opinions. It is true, as the Commissioner 

points out, that the record also reflects times during which Bellehsen’s mood was stable and

she reported no excessive anxiety. But given the cyclical nature of much mental illness, we 

cannot decide based on the cold record before us whether these examples of improvement 

provide a sufficient reason to discount Dr. Hertz’s opinions. Cf. Estrella, 925 F.3d at 97

(“Cycles of improvement and debilitating symptoms of mental illness 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.”). Furthermore, “[i]f an ALJ perceives 

inconsistencies in a treating physician’s reports, the ALJ bears an affirmative duty to seek out 

more information from the treating physician and to develop the administrative record 

accordingly” before rejecting the opinion. Rosa, 168 F.3d at 79. We are therefore not 

reassured by these intermittent observations of remission that, “had the ALJ complied with 

the procedural mandates of the treating physician rule,” it would still have declined to assign 

controlling weight to Dr. Hertz’s opinion. Estrella, 925 F.3d at 98. 

We commend the district court for its thorough analysis of the administrative record

following its determination that the ALJ erred in the ways we have described. Ultimately, 

however, this Court reviews the “administrative ruling rather than the district court’s 

opinion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). For the reasons outlined above, 

the ALJ’s analysis fell short of what is required, and we are unable to conclude that the error 

was harmless. See Estrella, 925 F.3d at 96; Burgess, 537 F.3d at 128-29. Accordingly, we 

remand the case to the ALJ for a thorough and procedurally correct reconsideration of 

Bellehsen’s claim in light of the obligations imposed by Burgess and Estrella. 
 

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* * *

For the reasons set forth above, the district court’s judgment is VACATED and the 

case is REMANDED to the Commissioner for further proceedings. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court