Lucas v. Berryhill , 689 F. App'x 4 ( 2017 )

16-1766
Lucas v. Berryhill
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 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
25th day of April, two thousand seventeen.
Present: ROSEMARY S. POOLER,
RICHARD C. WESLEY,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________________________
DYSHELLE R. LUCAS,
Plaintiff-Appellant,
v. 16-1766
NANCY A. BERRYHILL1, ACTING COMMISSIONER
OF SOCIAL SECURITY, U.S.A.,
Defendant-Appellee.
_____________________________________________________
Appearing for Appellant: Carolyn A. Kubitschek, Lansner & Kubitschek, New York, NY.
Appearing for Appellee: Vernon Norwood, Special Assistant to the United States Attorney
(Marc H. Silverman, Assistant United States Attorney, on the
brief), for Deirdre M. Daly, United States Attorney for the District
of Connecticut, New Haven, CT.
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Nancy A. Berryhill is automatically substituted as the respondent in this case pursuant to
Federal Rule of Appellate Procedure 43(c)(2).
Appeal from the United States District Court for the District of Connecticut (Covello, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Dyshelle R. Lucas appeals from the April 4, 2016 judgment of the United States District
Court for the District of Connecticut (Covello, J.) affirming the decision of the Commissioner of
the Social Security Administration denying her disability benefits on the ground that Lucas is not
“disabled” within the meaning of the relevant statutes. We assume the parties’ familiarity with
the underlying facts, procedural history, and specification of issues for review.
When this Court reviews the Commissioner’s denial of Social Security benefits, “our
focus is not so much on the district court’s ruling as it is on the administrative ruling.” Brault v.
Soc. Sec. Admin., Comm’r, 683 F.3d 443, 447 (2d Cir. 2012) (citation omitted). “[I]t is not our
function to determine de novo whether a plaintiff is disabled.” Id. Rather, “we conduct a plenary
review of the administrative record to determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner’s decision and if the correct legal standards have
been applied.” Id. (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)); see also 42
U.S.C. § 405(g) (stating that, on judicial review, “[t]he findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive”).
“Substantial evidence is ‘more than a mere scintilla.’” Brault, 683 F.3d at 447 (quoting
Moran, 569 F.3d at 112). “It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. at 447-48 (citation and emphasis omitted). As a result,
when this Court determines whether there is substantial evidence to support the Commissioner’s
decision, it applies “a very deferential standard of review—even more so than the ‘clearly
erroneous’ standard.” Id. at 448. “The substantial evidence standard means once an
[administrative law judge (“ALJ”)] finds facts, we can reject those facts only if a reasonable
factfinder would have to conclude otherwise.” Id., 683 F.3d at 448 (citation, internal quotation
marks, and emphasis omitted).
We affirm for substantially the reasons stated by the district court, as we agree that the
Commissioner’s ruling is supported by substantial evidence. Lucas’s testimony, medical records,
and the opinions of the consulting physicians all support the Commissioner’s finding that Lucas
could perform certain sedentary work. While an ALJ must consider a claimant’s testimony, it
may look to other evidence in determining the nature or extent of an impairment. See 20 C.F.R.
§§ 404.1529(c), 416.929(c). Here, the ALJ considered various sources of evidence and
justifiably declined to give less than determinative weight to Lucas’s testimony regarding how
her pain affected her ability to function independently. The ALJ only partially credited Lucas’s
testimony because, in October 2011, she reported that she independently cooked, cleaned and
performed household chores, but by March 2012, she stated she could no longer do any of those
things, “with little evidence in the record showing that her condition significantly worsened in
that short time frame.” Admin. R. at 15; see 20 C.F.R. § 404.1529(c)(3)(i) (listing “daily
activities” as an appropriate consideration in determining a claimant's level of pain).
2
Assuming, arguendo, that Lucas did not waive her challenge to the ALJ’s conclusion that
she could ambulate effectively with her prosthesis, we conclude that that finding was also
supported by the record. The ALJ accepted the report of the consulting doctor, who concluded
that Lucas “is capable of limited walking of less than 5 minutes due to pain in her leg and back.”
Admin. R. at 331. The doctor’s report also noted that “[t]ravel will be somewhat problematic for
the patient due to her limited physical endurance.” Id. The ALJ specifically adopted this
conclusion, finding that Lucas could walk only for four minutes before stopping to rest. Lucas
argues that, as a matter of law, the ability to walk for such a short duration does not constitute
effective ambulation. We disagree. The rules as to ambulation do not set durational limitations.
See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2b (“To ambulate effectively, individuals must be
capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out
activities of daily living. They must have the ability to travel without companion assistance to
and from a place of employment or school.”). Moreover, the ALJ relied on a report by the
consulting psychiatrist who noted that Lucas traveled more than five miles by bus, alone, to their
appointment and that she reported functioning independently. The record also demonstrates that,
after her treating prosthetists repaired her prosthesis in October of 2012, the prosthetist noted that
Lucas could “ambulat[e] without discomfort” and noted that her “functional level assessment”
indicated she could “ambulate with variable cadence: perform activities beyond simple
locomotion.” Admin. R. at 406, 408. The ALJ’s conclusion is thus adequately supported by the
record.
We have considered the remainder of Lucas’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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