Woodmancy v. Colvin , 577 F. App'x 72 ( 2014 )

13-4395-cv
Woodmancy 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
ASUMMARY 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 2nd day of September, two thousand fourteen.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
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BARBARA LYNNE WOODMANCY,
Plaintiff-Appellant,
v. No. 13-4395-cv
CAROLYN W. COLVIN, ACTING COMMISSIONER
OF SOCIAL SECURITY, in place of Michael Astrue,
Defendant-Appellee.
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FOR APPELLANT: Jaya A. Shurtliff, Stanley Law Offices,
Syracuse, New York.
FOR APPELLEE: Sandra M. Grossfeld, Special Assistant United
States Attorney, Stephen P. Conte, Regional
Chief Counsel, Region II, Office of the General
Counsel, Social Security Administration, New
York, New York, for Richard S. Hartunian,
United States Attorney for the Northern District
of New York, Syracuse, New York.
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Appeal from a judgment of the United States District Court for the Northern District
of New York (Gary L. Sharpe, Chief Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on October 9, 2013, is AFFIRMED.
Plaintiff Barbara Lynne Woodmancy challenges the district court’s affirmance of
the Commissioner of Social Security’s denial of her application for disability benefits.
We review the administrative record de novo, but we will set aside the agency decision
“only if the factual findings are not supported by substantial evidence or if the decision is
based on legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (citation and
internal quotation marks omitted). We have defined “substantial evidence” as more than a
“mere scintilla,” and as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(internal quotation marks and alteration omitted). A lack of supporting evidence on a
matter where the claimant bears the burden of proof, particularly when coupled with other
inconsistent record evidence, can constitute substantial evidence supporting a denial of
benefits. See Talavera v. Astrue, 697 F.3d 145, 153 (2d Cir. 2012). In applying these
standards here, we assume the parties’ familiarity with the facts and record of prior
proceedings, which we reference only as necessary to explain our decision to affirm.
1. Consideration of All Severe Impairments
Woodmancy contends that Administrative Law Judge (“ALJ”) Elizabeth W.
Koennecke erred at step two of the disability analysis, see 20 C.F.R. § 404.1520(a)(4)(ii),
in finding that between June 15, 2009, and January 27, 2011, the period at issue,
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Woodmancy was severely impaired by substance abuse, depression, and facet anthropathy,
but not by anemia, sleep apnea, and chronic pancreatitis. A claimant has the burden of
establishing that she has a “severe impairment,” which is “any impairment or combination
of impairments which significantly limits [her] physical or mental ability to do basic
work.” 20 C.F.R. § 416.920(c); see Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003). Woodmancy argues that her anemia, sleep apnea, and chronic pancreatitis were
severe impairments because they required ongoing treatment and caused her functional
limitations, pain, and fatigue. For the reasons set forth in the district court’s thorough
opinion, see Woodmancy v. Colvin, No. 5:12-CV-991 GLS, 2013 WL 5567553, at *2
(N.D.N.Y. Oct. 9, 2013), we conclude that substantial evidence supports the agency
determination that Woodmancy did not carry her burden of demonstrating that these
conditions were severe impairments.1 Nor are we persuaded that there is any unwarranted
inconsistency between the ALJ’s determination that these conditions did not cause serious
impairment while substance abuse did. While these conditions may all have required
ongoing treatment, substantial record evidence indicated that Woodmancy either failed to
pursue or to benefit from treatment for substance abuse but did benefit from treatment for
the other conditions in ways that minimized their impairing effect. See Mongeur v.
Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (holding condition was not severe impairment
where it improved from treatment).
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In any event, we identify no error warranting remand because the ALJ did identify severe
impairments at step two, so Woodmancy’s claim proceeded through the sequential
evaluation process, in which all of Woodmancy’s ailments were part of the analysis.
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2. Residual Functional Capacity
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Woodmancy argues that the ALJ’s residual functional capacity (“RFC”)
determination following step three of the disability analysis was not supported by
substantial evidence in light of the 2010 opinions of treating physician Buchan and nurse
practitioner Nemitz that Woodmancy was disabled from performing even sedentary work
during the relevant period. Woodmancy further contends that the ALJ failed to factor into
the RFC determination her alleged inability to cope with work stress.
“[W]hile a treating physician’s retrospective diagnosis is not conclusive, it is
entitled to controlling weight unless it is contradicted by other medical evidence or
overwhelmingly compelling non-medical evidence.” Byam v. Barnhart, 336 F.3d 172,
183 (2d Cir. 2003) (citations and internal quotation marks omitted); see Perez v. Chater, 77
F.3d 41, 48 (2d Cir. 1996) (“A treating physician’s retrospective medical assessment of a
patient may be probative when based upon clinically acceptable diagnostic techniques.”).
If the ALJ chooses not to afford such an opinion controlling weight, then the ALJ must
consider the following factors in deciding what weight to assign the opinion: (1) examining
relationship; (2) treatment relationship, including its length, nature and extent;
(3) supportability with medical evidence; (4) consistency with the record as a whole;
2
A claimant’s RFC “is the most [she] can still do despite [her] limitations.” 20 C.F.R.
§ 416.945(a)(1). In assessing a claimant’s RFC, an ALJ must consider “all of the relevant
medical and other evidence,” including a claimant’s subjective complaints of pain. Id.
§ 416.945(a)(3). This court must affirm an ALJ’s RFC determination when it is supported
by substantial evidence in the record. See 42 U.S.C. § 405(g); Perez v. Charter, 77 F.3d
41, 46 (2d Cir. 1996).
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(5) specialization of the examiner; and (6) any other relevant factors. See 20 C.F.R.
§ 404.1527(c)(1)–(6).
Here, the ALJ acted within her discretion in according the Buchan/Nemitz opinions
little weight because record evidence of unremarkable clinical findings contradicted or
failed to support the limitations conclusions in these opinions. See Halloran v. Barnhart,
362 F.3d 28, 32 (2d Cir. 2004) (stating that treating physician’s opinion is not controlling
when contradicted by “other substantial evidence in the record”). As for Woodmancy’s
alleged inability to cope with work stress, Buchan and Nemitz did not treat this condition.
In any event, the ALJ reasonably relied on consultative psychologist Dr. Barry who, after
examination, opined that Woodmancy could perform basic work tasks despite her
complaints of stressors. Largely for the reasons identified by the district court, see
Woodmancy v. Colvin, 2013 WL 5567553, at *3–4, substantial evidence supports the
agency’s RFC assessment.3
3. Failure to Use Vocational Expert
Finally, Woodmancy argues that the ALJ erred by not obtaining the opinion of a
vocational expert in determining whether there were jobs in the national economy that
Woodmancy could perform. “If a claimant has nonexertional limitations that
‘significantly limit the range of work permitted by his exertional limitations,’ the ALJ is
required to consult with a vocational expert.” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir.
3
Insofar as Woodmancy alleges inconsistency in the ALJ’s findings classifying
Woodmancy’s restrictions in activities of daily living as both “mild” and “moderate,” we
identify no error warranting remand, as the ALJ’s RFC determination was supported by
substantial evidence.
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2010) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986)). A nonexertional
impairment will “significantly limit” a claimant’s range of work “when it causes an
additional loss of work capacity beyond a negligible one, or, in other words, one that so
narrows a claimant’s possible range of work as to deprive him of a meaningful
employment opportunity.” Id. at 411 (internal quotation marks and alteration omitted).
If, however, a claimant does not have such limitations, the ALJ may rely on the medical
vocational guidelines (the “grids”) to adjudicate the claim. See 20 C.F.R. pt. 404, subpt.
P, app. 2; id. § 416.969; cf. Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999) (observing
that where individual seeking disability benefits suffers only from exertional impairments,
“Commissioner meets [her] burden at the fifth step by resorting to . . . the grids”).
The ALJ concluded that Woodmancy did not have significant nonexertional
limitations and therefore relied on the grids to adjudicate her claim without soliciting the
testimony of a vocational expert. In urging error, Woodmancy argues that the ALJ’s
finding that Woodmancy’s depression was a “severe impairment” manifested a
nonexertional limitation requiring consultation with a vocational expert. To the contrary,
the ALJ found that although Woodmancy suffered from depression, she “retain[ed] the
ability (on a sustained basis) to understand, carry out, and remember simple instructions[,]
. . . respond appropriately to supervision, coworkers, and usual work situations and to deal
with changes in a routine work setting.” J.A. 16, 19–20. This determination was
supported by substantial evidence in the record, specifically, the opinions of Dr. Barry and
the State consultant that despite Woodmancy’s depression, she could perform unskilled
remunerative work. Accordingly, because there is substantial evidence that
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Woodmancy’s nonexertional impairments did not “significantly limit the range of work
permitted by [her] exertional limitations,” the ALJ was not required to consult a vocational
expert. Zabala v. Astrue, 595 F.3d at 410–11.
4. Conclusion
We have considered Woodmancy’s remaining arguments and conclude that they are
without merit. Therefore, we AFFIRM the judgment of the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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