Roma v. Astrue , 468 F. App'x 16 ( 2012 )

10-4351-cv
Roma v. Astrue
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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 19th day
of January, two thousand twelve.
Present:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.1
________________________________________________
WILLIAM C. ROMA,
Plaintiff-Appellant,
v. No. 10-4351-cv
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL
SECURITY,
Defendant-Appellee.
________________________________________________
For Plaintiff-Appellant: ALLAN B. RUBENSTEIN, New Haven, CT.
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The Honorable Robert D. Sack, who had originally been assigned to this panel, recused
himself. The remaining two members of the panel decide the matter pursuant to Second Circuit
Internal Operating Procedure E(b).
For Defendant-Appellee: ANN M. NEVINS, Assistant United States Attorney
(Sandra S. Glover, Assistant United States Attorney, on
the brief), for David B. Fein, United States Attorney for
the District of Connecticut.
Appeal from the United States District Court for the District of Connecticut (Eginton, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court be and hereby is AFFIRMED.
Plaintiff-Appellant William C. Roma appeals from a judgment of the United States
District Court for the District of Connecticut (Eginton, J.) entered on September 3, 2010,
affirming the determination of an Administrative Law Judge (“ALJ”) that Roma was not
disabled and therefore ineligible for disability insurance benefits under the Social Security Act.
On appeal, Roma contends that the ALJ’s determination was not supported by substantial
evidence because the ALJ (1) erroneously failed to accord controlling weight to the medical
opinions of Roma’s treating psychiatrist and pain specialist, (2) did not follow SSR 85-15 when
he evaluated stress as a factor in his decision, and (3) misused the medical vocational guidelines
when he found that there were jobs Roma could perform in the national economy. We assume
the parties’ familiarity with the underlying facts and procedural history of this case.
“In reviewing the denial of Social Security benefits by the Commissioner, our focus is
not so much on the district court’s ruling as it is on the administrative ruling.” Rosa v. Callahan,
168 F.3d 72, 77 (2d Cir. 1999) (internal quotation marks and brackets omitted). “It is not our
function to determine de novo whether [a plaintiff] is disabled.” Pratts v. Chater, 94 F.3d 34, 37
(2d Cir. 1996). Instead, “we set aside an ALJ’s decision only where it is based upon legal error
or is not supported by substantial evidence.” Rosa, 168 F.3d at 77 (internal quotation marks and
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brackets omitted). 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, 94
F.3d at 37 (internal quotation marks omitted). “On appeal, 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. We may not properly affirm an administrative action on grounds different from those
considered by the agency.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal
quotation marks and citations omitted).
An individual is “considered to be disabled” if “he is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
. . . has lasted or can be expected to last for a continuous period of not less than twelve months.”
42 U.S.C. § 1382c(a)(3)(A). Regulations enacted by the Social Security Administration set
forth a five-step analysis for evaluating whether an individual’s impairment meets this definition
of disability.
The first step in the process requires the Secretary to ascertain whether the
claimant is currently engaged in “substantial gainful activity.” . . . If the applicant
is not engaged in such activity, the second step requires a decision whether the
claimant’s medical condition or impairment is “severe,” i.e., one that significantly
limits his ability to work. . . .
If the impairment is severe, step three requires a determination of whether
the damage is of sufficient gravity to meet or equal the definitions found in the
Listing of Impairments (the “Listings”). See 20 C.F.R. Part 404, Subpt. P, App. 1
(1987). . . . If, however, a claimant has a severe impairment that is not considered
per se disabling under the Listings, step four compels the Secretary to ascertain
his residual functional capacity (“RFC”), a measure of employment capabilities. .
. . If the applicant is unable to perform his past work, he is then evaluated at the
fifth step in the process, which requires a finding of whether, given his functional
ability (RFC), age, education and past work experience, he could perform other
jobs that exist in the national economy.
State of N.Y. v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).
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We begin with Roma’s contention that the ALJ erroneously failed to accord controlling
weight to the medical opinions of two treating physicians: Dr. Mitchell Pyrwes, a physiatrist and
pain management specialist, and Dr. Mark Ligorski, a psychiatrist. A treating physician’s
opinion is accorded “controlling weight” when it is “well[]supported by medically acceptable
clinical and laboratory techniques and is not inconsistent with the other substantial [record]
evidence.” 20 C.F.R. § 404.1527(d)(2). Nevertheless, “[a] treating physician’s statement that
the claimant is disabled cannot itself be determinative.” See Snell v. Apfel, 177 F.3d 128, 133
(2d Cir. 1999). It is the Commissioner who is “responsible for making the determination or
decision about whether [the claimant] meet[s] the statutory definition of disability.” 20 C.F.R. §
404.1527(e)(1). Moreover, the deference accorded to a treating physician’s opinion may be
reduced upon consideration of other factors, including the length and nature of the treating
doctor’s relationship with the patient, the extent to which the medical evidence supports the
doctor’s opinion, whether the doctor is a specialist, the consistency of the opinion with the rest
of the medical record, and any other factors “which tend to support or contradict the opinion.”
20 C.F.R. § 404.1527(d)(2)(i)-(ii) and (d)(3)-(6); see also Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004) (“Although the treating physician rule generally requires deference to the medical
opinion of a claimant’s treating physician, the opinion of the treating physician is not afforded
controlling weight where, as here, the treating physician issued opinions that are not consistent
with other substantial evidence in the record, such as the opinions of other medical experts.”)
(internal citation omitted).
Upon our review of the record, we conclude that the ALJ properly declined to accord
controlling weight to the opinion of Dr. Pyrwes. As an initial matter, Dr. Prywes’s assertion that
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Roma “is permanently disabled,” App. 257, cannot itself be determinative because it is the
responsibility of the Commissioner to make the ultimate decision as to whether the claimant
meets the statutory definition of “disabled.” See 20 C.F.R. § 404.1527(e)(1). Moreover, Dr.
Pyrwes’s assessment was inconsistent in material respects with other substantial evidence. For
example, Dr. Sekhar Chirunomula, a state agency physician, found that key RFC and clinical
signs were relatively normal or mild. App. 300-301. He was “unable to extract [from Roma]
any significant cognitive dysfunction,” and his physical examination revealed “well-preserved
muscle tone, grip strength, balance, dexterity, and gait.” Id. at 301. Dr. Chirunomula’s findings
were consistent with Dr. Katharine Tracy’s Residual Functional Capacity Assessment, which
concluded that Roma could occasionally lift 20 pounds, frequently lift 10 pounds, stand or walk
for 6 hours in an 8-hour workday, sit for 6 hours in an 8-hour workday, and perform unlimited
pushing and pulling, id. at 245, as well as Dr. Patricia Mitchell’s conclusion that Roma’s
“[o]verall cognitive functioning was generally in the average range,” id. at 160. Moreover, Dr.
Prywes’s opinion conflicted with Roma’s own testimony that he could perform a reasonably
broad range of light, non-stressful activities at or near his home, including driving, reading,
sending email, and independently performing the activities of daily living while his wife worked
full-time. Id. at 23. Accordingly, the ALJ was not required to defer to Dr. Prywes’s opinion
that Roma was unable to “undertake any kind of gainful employment.” Id. at 257.
Roma’s related argument, that the ALJ erred by failing to consider the appropriate factors
under 20 C.F.R. §404.1527(d) in rejecting the opinion of Dr. Pyrwes, is similarly without merit.
The ALJ considered the length of the treatment relationship with Dr. Prywes, noting that the
treatment did not include the years when Roma was working after his motor vehicle accident.
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He found that Dr. Prywes’s opinion was not consistent with the record as a whole, concluding
that “[t]he diagnostic tests, such as repeated MRI’s [sic], CT scans, muscle testing, IQ tests, and
neurological signs, simply [did] not support disability from all cognitive and exertional
activities.” App. 24. He further indicated that the supportability of Dr. Prywes’s opinion was
doubtful as it was based largely upon Roma’s subjective responses, which were not themselves
entirely credible for the reasons explained in the ALJ’s decision. See id. at 23-25; see generally
20 C.F.R. § 404.1527(d)(3) (“The more a medical source presents relevant evidence to support
an opinion, particularly medical signs and laboratory findings, the more weight we will give that
opinion.”). However, the ALJ did credit Dr. Prywes’s opinion to the extent the ALJ determined
that Roma could not perform his past relevant work as an appraiser. App. 23-24.
Turning to the opinion of Dr. Ligorski, the ALJ specifically stated that the opinion of Dr.
Ligorski, as Roma’s treating psychiatrist, was “entitled to extra weight.” App. 23. Moreover,
the ALJ accepted the vast majority of Dr. Ligorski’s conclusions, including his determination
that Roma had a history of severe depression and anxiety. Id. at 26 (“[T]he claimant has a
history of depression and anxiety which are ‘severe’ per Dr. Ligorski’s reports.”) (internal
citation omitted). Thus, while the ALJ did not specifically state that he was according
“controlling weight” to Dr. Ligorski’s opinion, Roma’s assertion that the ALJ “rejected” Dr.
Ligorski’s opinion is simply inaccurate. See Pl.’s Br. at 22. Moreover, to the extent the ALJ
discounted Dr. Ligorski’s opinion, if at all, his decision to do so was supported by other
substantial record evidence. For example, the ALJ’s determination that Roma’s social
limitations did not render him totally disabled was supported by evidence that, in the context of
numerous examinations, Roma demonstrated a stable affect, memory for details, and willingness
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to cooperate with questioning. App. 28, 162-220, 300-301. Similarly, the ALJ’s
characterization of Roma’s concentration impairment as “moderate” was supported by other
credible evidence in the record, including evidence that Roma could sit for several hours of
neuropsychological evaluation, id. at 158-61; evidence that Roma could participate in a lengthy
vocational assessment by litigation consultants, id. at 162-220; evidence that Roma was able to
attend and participate appropriately with numerous medical doctors and evaluators, id. at 28,
158-61, 162-220, 221, 253-55, 256-80, 300-301; and evidence that Roma could perform the
activities of daily living, id. at 26. Accordingly, we conclude that the ALJ correctly applied the
treating physician rule when he considered the opinions of Dr. Prywes and Dr. Ligorski.
Roma’s second argument -- that the ALJ failed to follow SSR 85-15 by failing to
evaluate Roma’s ability to cope with stress -- was waived when Roma failed to raise it before the
district court below. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (“Although
claimants in Social Security cases are not subject to some issue exhaustion requirements, at least
where the claimant is represented by counsel before the district court, the claimant must present
the relevant legal arguments in that forum in order to preserve them for appellate review.”)
(internal citation omitted). Even if Roma had asserted the argument, however, it would be
without merit. SSR 85-15, descriptively titled “The Medical-Vocational Rules as a Framework
for Evaluating Solely Nonexertional Impairments,” does not apply to a case, such as this one, in
which the claimant suffers from a combination of exertional and non-exertional impairments.
See Social Security Ruling 85-15, 1985 SSR LEXIS 20 (S.S.A. 1985) (emphasis supplied).
Finally, we turn to Roma’s argument that the ALJ improperly used the medical
vocational guidelines to determine that there are jobs Roma can perform in the national
7
economy. Because Roma established that his various impairments prevented him from
performing his past work, the ALJ had the burden of proving that Roma retained “a residual
functional capacity to perform alternative substantial gainful work which exists in the national
economy.” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). The ALJ ordinarily meets this
burden by utilizing the applicable medical vocational guidelines, although sole reliance on the
guidelines may be inappropriate where the claimant’s exertional impairments are compounded
by nonexertional impairments.
“In the ordinary case,” the Commissioner meets his burden at the fifth step “by resorting
to the applicable medical vocational guidelines (the grids), 20 C.F.R. Pt. 404, Subpt. P,
App. 2 (1986).” Bapp, 802 F.2d at 604. The grids “take[ ] into account the claimant’s
residual functional capacity in conjunction with the claimant’s age, education and work
experience.” Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996). Based on these
considerations, the grids indicate whether the claimant can engage in any substantial
gainful work existing in the national economy. Although the grid results are generally
dispositive, exclusive reliance on the grids is inappropriate where the guidelines fail to
describe the full extent of a claimant’s physical limitations. In particular, “sole reliance
on the [g]rid[s] may be precluded where the claimant’s exertional impairments are
compounded by significant nonexertional impairments that limit the range of sedentary
work that the claimant can perform.” Id. In these circumstances, the Commissioner must
“introduce the testimony of a vocational expert (or other similar evidence) that jobs exist
in the economy which claimant can obtain and perform.” Bapp, 802 F.2d at 603.
Rosa, 168 F.3d at 78 (footnote omitted). However, “the mere existence of a nonexertional
impairment does not automatically require the production of a vocational expert nor preclude
reliance on the guidelines.” Bapp, 802 F.2d at 603. Rather, “[a] more appropriate approach is
that when a claimant’s nonexertional impairments significantly diminish his ability to work --
over and above any incapacity caused solely from exertional limitations -- so that he is unable to
perform the full range of employment indicated by the medical vocational guidelines, then the
Secretary must introduce the testimony of a vocational expert (or other similar evidence) that
jobs exist in the economy which claimant can obtain and perform.” Id. “A claimant’s work
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capacity is ‘significantly diminished’ if there is an ‘additional loss of work capacity . . . that so
narrows a claimant’s possible range of work as to deprive him of a meaningful employment
opportunity.’” Pratts, 94 F.3d at 39 (quoting Bapp, 802 F.2d at 606).
In this case, Roma argues (1) that the non-exertional impairment found by the ALJ
required him to obtain vocational testimony, (2) that the ALJ failed to base his conclusions on
his own RFC finding, and (3) that the ALJ failed to use or follow SSR 00-4P. Addressing these
contentions in turn, Roma’s first argument is premised on the assertion that the ALJ’s decision
was not supported by any vocational evidence. However, two individuals from the state agency,
who identified themselves an “adjudicator” and “disability examiner,” respectively, provided
vocational evidence in this case. See App. 110, 127. Roma cites no authority for the proposition
that these professionals are not “vocational experts”; to the contrary, the regulations and case law
suggest that small variations in job title are not particularly relevant in this context. See, e.g.,
1985 SSR LEXIS 20 (S.S.A. 1985) (“[s]tate agencies may use personnel termed vocational
consultants or specialists”); Bapp, 802 F.2d at 603 (“the Secretary must introduce the testimony
of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant
can obtain and perform”) (emphasis supplied)). Thus, we find that the ALJ properly introduced
evidence that jobs exist in the economy that Roma can perform, and that Roma’s first contention
is therefore without merit.2
Roma next argues that the ALJ’s RFC differed from the adjudicator’s RFC, and that the
ALJ improperly “acted as his own [vocational expert] and chose the adjudicator’s jobs, even
2
Roma’s related arguments, that the vocational “adjudicator” and “disability examiner”
were required to testify and present their qualifications at the hearing, were waived when Roma
failed to present them to the district court. See Poupore, 566 F.3d at 306.
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though his RFC was different.” See Pl.’s Br. at 38. This argument is unavailing, however, for
the simple reason that a comparison of the RFC employed by the adjudicator and the one
employed by the ALJ reveals that the two RFCs are nearly identical -- with the ALJ’s RFC
determination being more detailed, but not more limiting, than that of the vocational adjudicator.
See Def.’s Br. at 57.
Finally, Roma failed to assert below the argument that he now urges on appeal: that the
ALJ failed to follow SSR 00-4p by not inquiring as to conflicts between the vocational evidence
and the information provided in the Dictionary of Occupation Titles (“DOT”) about the
requirements of a job or occupation. See SSR 00-4p. But even if Roma had not waived this
argument, the ALJ was not required to make any such inquiry because the jobs he identified
were DOT job titles, and therefore there was no “possible conflict between th[e] [vocational]
evidence [about the requirements of a job or occupation] and information provided in the DOT.”
Id.
We have considered Roma’s remaining arguments and find them to be without merit.
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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