Tricarico v. Colvin , 681 F. App'x 98 ( 2017 )

15-3786
Tricarico v. Colvin
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 3rd day of March, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RALPH K. WINTER,
Circuit Judge,
SIDNEY H. STEIN,*
District Judge.
JOSEPH TRICARICO,
Plaintiff-Appellant,
v. No. 15-3786
CAROLYN W. COLVIN, ACTING COMMISIONER
OF SOCIAL SECURITY
Defendant-Appellee.
For Plaintiff-Appellant Joseph Tricarico: CHRISTOPHER JAMES BOWES, Law Office of
Christopher Bowes, Shoreham, NY, of counsel
*
Judge Sidney H. Stein, of the United States District Court for the Southern District of New
York, sitting by designation.
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to Harry J. Binder and Charles E. Binder, P.C.,
New York, NY.
For Defendant-Appellee Carolyn W. Colvin: ROBERT R. SCHRIVER, Special Assistant U.S.
Attorney (Varuni Nelson and Arthur
Swerdloff, Assistant U.S. Attorneys, on the
brief), for Robert L. Capers, U.S. Attorney for
the Eastern District of New York, Brooklyn,
NY.
Appeal from a judgment of the United States District Court for the Eastern District of
New York (Mauskopf, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Joseph Tricarico appeals from the order and judgment of the United
States District Court for the Eastern District of New York (Mauskopf, J.) entered on September
28, 2015, denying Tricarico’s motion for judgment on the pleadings and granting Defendant-
Appellee Carolyn W. Colvin’s cross-motion for judgment on the pleadings. See Tricarico v.
Colvin, No. 14-CV-2415 (RRM), 2015 WL 5719696 (E.D.N.Y. Sept. 28, 2015). We assume the
parties’ familiarity with the underlying facts, procedural history, and issues on appeal.
Tricarico, a former police officer on disability retirement, applied for and was denied
Social Security Disability Insurance benefits by Administrative Law Judge James Kearns. After
the Social Security Administration Appeals Council denied review of his appeal, he challenged
the determination in district court. We review a district court’s judgment on the pleadings in a
social security action “de novo to determine whether there is substantial evidence supporting the
Commissioner’s decision and whether the Commission applied the correct legal standard.”
Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010). When reviewing a benefits determination by
the Commissioner, our focus “is not so much on the district court’s ruling as it is on the
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administrative ruling,” Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003) (citation and
quotation marks omitted), and “we do not substitute our judgment for the agency’s, or determine
de novo whether [the claimant] is disabled.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d
Cir. 2012) (citation and internal quotation marks omitted) (alteration in original). Instead,
reviewing the ALJ’s factfinding for substantial evidence, “we can reject those facts only if a
reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm’r,
683 F.3d 443, 448 (2d Cir. 2012) (quotation marks omitted). In deciding whether substantial
evidence exists, we defer to the Commissioner’s resolution of conflicting evidence. See Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
On appeal, Tricarico raises three issues. First, he argues that the ALJ erred by failing to
assign the appropriate weight to the opinion of his treating physician, whose opinion Tricarico
argues was “well-supported” and should have been accorded controlling weight. Second, he
asserts that the ALJ improperly rejected Tricarico’s subjective complaints of pain and did not
treat as credible Tricarico’s claims concerning his physical limitations. Third, Tricarico argues
that the evidence submitted to the Appeals Council — namely two reports from another
physician — was new and material and should have been considered by the Council in reviewing
the ALJ’s decision.
A. Denial of Controlling Weight to Treating Physician’s Assessment
As to the first issue, Tricarico contends that the ALJ wrongly declined to afford
controlling weight to the assessment of his treating physician, Dr. Wilen. Despite Tricarico’s
urging, the ALJ need not grant the treating physician’s assessment controlling weight where the
opinion is inconsistent with other evidence in the record, including the opinions of other medical
experts. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam). Here, the ALJ’s
decision to afford limited weight to Dr. Wilen’s assessment is supported by substantial evidence.
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First, the ALJ observed that Dr. Wilen’s assessment contained internal inconsistencies,
such as the fact that the extreme limitations Dr. Wilen identified were not consistent with the
relatively conservative treatment plan he had prescribed, which consisted of only pain relief
medication and physical therapy, the latter of which was later discontinued. The ALJ also noted
that Tricarico was seen by Dr. Wilen only every one to three months for pain medication and that
Tricarico had declined surgical care recommended by multiple providers. Second, Dr. Wilen’s
assessment also contradicted both Tricarico’s testimony and the assessment of Dr. Aurelio Salon,
who provided a consultative examination at the behest of the Division of Disability
Determination. Dr. Salon identified that Tricarico “can clean, go shopping, do child care,
shower, bathe, and dress by himself.” AR 293. Dr. Salon’s assessment further observed that
Tricarico had a “normal” gait, could “walk on heels and toes without difficulty,” could “[s]quat
full,” “[u]sed no assistive devices,” “[n]eeded no help changing” for the examination or getting
on and off the examination table, and was “[a]ble to rise from the chair without difficulty.” AR
293. Based on Tricarico’s medical history and his evaluation, Dr. Salon found nothing to support
the fact that the claimant would be restricted in his ability to sit or stand, or in his capacity to
climb, push, pull, or carry heavy objects.” AR 295. The ALJ assigned Dr. Salon’s opinion “great
weight” because it was “consistent with the examiner[’]s findings” and Tricarico’s “ongoing
conservative care.” AR 27.
This Circuit has held that a Commissioner’s determination of liability is subject to
remand where the ALJ fails “to provide ‘good reasons’ for the weight she gives to the treating
source’s opinion.” See Halloran, 362 F.3d at 32–33; see also 20 C.F.R. § 404.1527(c)(2).
Although a treating physician’s assessment is typically given more weight than other examiners’
assessments, internal inconsistencies, and the conflicting opinions of other examining physicians,
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where supported by evidence in the record, can constitute substantial evidence to support not
according the treating physician’s opinion controlling weight, as well as good reasons to attribute
only limited weight to that opinion. See Diaz v. Shalala, 59 F.3d 307, 314–15 (2d Cir. 1995); see
also 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as
a whole, the more weight we will give to that opinion.”). Moreover, the ALJ’s conclusion need
not perfectly correspond to any one medical assessment as long as it is supported by the record
as a whole, see Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (summary order), which the
ALJ’s decision here is. Substantial evidence thus supports the ALJ’s decision not to afford
controlling weight to Dr. Wilen’s assessment.
B. Assessment of Tricarico’s Credibility
Second, Tricarico argues that the ALJ improperly evaluated Tricarico’s credibility as to
his subjective complaints of pain, symptoms, and limitations resulting from his condition. As to a
complainant’s credibility, the ALJ’s task is to consider the extent to which his self-reported
symptoms could “reasonably be accepted as consistent with the objective medical evidence and
other evidence of record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (quoting
20 C.F.R. § 404.1529(a)) (internal quotation marks omitted). As a factfinder, however, the “ALJ
is free to accept or reject testimony” of a witness, provided that when a witness is found not to be
credible, the ALJ provides findings with “sufficient specificity to permit intelligible plenary
review of the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260–61 (2d Cir. 1988).
Tricarico concedes that the ALJ did credit many of his complaints, including his pain and
limited movement in his right shoulder, neck, lower back, and right knee; tingling in his legs;
and pain upon lifting his 21-pound daughter. However, the ALJ also identified aspects of
Tricarico’s testimony that were not consistent with a finding of complete disability. For example,
the ALJ noted that Tricarico had “not sought surgical care though his multiple providers have
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encouraged him to have a right shoulder arthroscopy.” AR 28. The ALJ observed, moreover, that
“[w]hile the claimant testified to have ongoing pain complaints, he appears to have relatively
busy activities of daily living. He takes care of his three young children while his wife is at work,
including his one-year-old.” AR 28. As a result, the ALJ limited Tricarico to “sedentary
exertional work,” with additional limitations that he have “a sit and stand at will work option,”
AR 28, and that he avoid extreme temperatures due to ongoing pain. The ALJ also limited him to
simple and repetitive work based on Tricarico’s testimony that he had medication side-effects
that included diminished concentration. In short, given conflicting evidence in the record and in
Tricarico’s own account of his limitations, the ALJ appropriately assessed Tricarico’s credibility.
C. Evidence Submitted After the ALJ’s Decision
Last, Tricarico contends that the Appeals Council should have considered two additional
medical reports submitted by Dr. Joseph DeFeo that were excluded as not relevant to his
condition during the period at issue. The Appeals Council shall consider evidence submitted after
the ALJ’s decision if the petitioner can show “good cause” for not submitting the evidence to the
ALJ and that the additional evidence is “new, material, and relates to the period on or before the
date of the hearing decision.” 20 C.F.R. § 404.970(a)(5), (b). Even if the Appeals Council erred
by rejecting additional evidence, remand is only appropriate where there is a “reasonable
possibility” that this evidence would have influenced the ALJ to decide the disability
determination differently. See Lisa v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d 40, 43
(2d Cir. 1991) (quoting Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)).
Dr. DeFeo’s physical exam took place in July 2013 — nearly eight months after the
ALJ’s decision — and so the only argument that his assessments were relevant to Tricarico’s
condition when his benefits were denied is that Dr. DeFeo examined Tricarico’s MRI and EMG
reports dating back as far as 2007. His assessment as to Tricarico’s earlier condition is therefore
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cumulative of other doctors who reviewed these same reports prior to the ALJ’s decision.
Moreover, Dr. DeFeo’s assessment actually contradicted Dr. Wilen’s by suggesting Tricarico’s
impairments were less restrictive than what Dr. Wilen had determined. As a result, there is not a
reasonable possibility that Dr. DeFeo’s assessments would have altered the ALJ’s decision.
We have considered all of appellant’s contentions on appeal and have found in them no
basis for reversal. For the reasons stated herein, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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