Rutkowski v. Astrue , 368 F. App'x 226 ( 2010 )

09-3378-cv
Rutkowski v. Astrue
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
ORDER FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER
IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRO NIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST 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 United States Courthouse, 500 Pearl Street, in the City of New
York, on the 4th day of March, two thousand ten.
PRESENT:
AMALYA L. KEARSE,
PETER W. HALL,
Circuit Judges.
JED S. RAKOFF,
District Judge.*
__________________________________________
Mark Rutkowski,
Plaintiff-Appellant,
v. 09-3378-cv
Michael J. Astrue, Commissioner of Social Security,
Defendant-Appellee.
__________________________________________
*
The Honorable Jed. S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
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FOR APPELLANT: MARK CURLEY ; Law Offices of Mark Curley, Esq.; New York, NY (Mark
Schneider; Law Offices of Mark Schneider, Esq.; Plattsburgh, NY, on the
brief).
FOR APPELLEE: SOMMATTIE RAMRUP , Special Assistant United States Attorney, New York,
NY (Andrew T. Baxter, United States Attorney for the Northern District of
New York; Stephen P. Conte, Acting Chief Counsel - Region II, Office of the
General Counsel, Social Security Administration, Of Counsel, on the brief).
Appeal from a judgment of the United States District Court for the Northern District of New
York (McAvoy, J.). UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Mark Rutkowski appeals from the district court’s July 23, 2009 order
affirming a final determination of the Commissioner of Social Security denying him supplemental
security income (“SSI”) benefits. We assume the parties’ familiarity with the facts, procedural
history, and specification of issues on appeal.
To be eligible for SSI, a claimant must show an inability “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or 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). The Commissioner is required to
perform a five-step sequential analysis to determine whether an individual is disabled for purposes
of receiving SSI. See 20 C.F.R. § 416.920. In reviewing a final determination of the
Commissioner, courts consider only whether the conclusions made are supported by substantial
evidence in the record and whether the correct legal standard was applied. Lamay v. Comm’r of
Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009); see also 42 U.S.C. § 405(g).
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1. Adequacy of administrative hearings
Rutkowski first argues that he did not receive an adequate administrative hearing because he
did not knowingly and voluntarily waive his right to representation, and because the administrative
law judge (“ALJ”) failed to develop the record fully.
A. Disclosure requirements
The Commissioner is required to notify claimants in writing of the option to retain an
attorney to be present at hearings, and of the availability of free legal services. 42 U.S.C.
§ 1383(d)(2)(D); see also 20 C.F.R. §§ 404.1705, 404.1706. The ALJ must also ensure, at the
hearing itself, that the claimant is aware of these rights. Lamay, 562 F.3d at 507. This Court
recently declined to mandate anything more than these statutory and regulatory disclosure
requirements. See id. at 507-08.
To the extent that Rutkowski argues that he did not receive an adequate hearing because he
was not aware of his right to be represented, this argument is foreclosed by this Court’s holding in
Lamay. Id. at 509-10. In addition to numerous other notifications, the Commissioner satisfied all
the disclosure requirements in its initial Notice of Disapproved Claim. The ALJ also verbally told
Rutkowski of his right to representation and the availability of free legal services during the initial
and supplemental hearings. Thus, substantial evidence supports the finding that Rutkowski
knowingly and voluntarily waived his right to representation.
B. The ALJ’s duty to develop the record
Rutkowski next makes a related argument that the ALJ failed to develop the record fully. In
light of the non-adversarial nature of social security proceedings, the ALJ has a “‘duty to investigate
and develop the facts and develop the arguments both for and against the granting of benefits.’”
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Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004) (quoting Seavey v. Barnhart, 276 F.3d 1, 8 (1st
Cir. 2001)). These duties are heightened when a claimant waives his right to representation and
proceeds pro se. Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990).
The record clearly shows that the ALJ discharged his duties to develop the facts and
arguments to ensure a proper disposition of the case. In addition to reports from Dr. Krag, who
performed surgery on Rutkowski two days after his initial injury, and Dr. Sherman, his primary
physician, the ALJ requested records from five other medical sources. The ALJ at two hearings
questioned Rutkowski in detail about his education, prior work experience, medical history, daily
activities and physical limitations. A vocational expert questioned him in more detail about his
work experience and the type of work he could do, and the ALJ gave Rutkowski the opportunity to
cross-examine the expert. Thus, the ALJ fulfilled his duty to develop sufficiently the record.
2. Listing of impairments
Rutkowski next argues that substantial evidence does not support the ALJ’s determination
that his impairments do not meet the criteria of Listing 1.04A in 20 C.F.R. pt. 404, subpt. P, app. 1
(disorders of the spine with evidence of nerve root compression). As support for this contention,
Rutkowski points to an Essex County Department of Social Services report, which determined that
his impairments do in fact meet the criteria of Listing 1.04. Rutkowski, then represented by
counsel, submitted the report to the Appeals Council following the adjudication of his claim before
the ALJ. While evidence submitted to the Appeals Council becomes part of the administrative
record, Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996), the Appeals Council, in reviewing a decision
based on an application for benefits, will consider new evidence only if (1) the evidence is material,
(2) the evidence relates to the period on or before the ALJ’s hearing decision, and (3) the Appeals
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Council finds that the ALJ’s decision is contrary to the weight of the evidence, including the new
evidence. 20 C.F.R. § 416.1470.
While the evidence relates to the period before the ALJ’s decision, it does not add so much
as to make the ALJ’s decision contrary to the weight of the evidence. The Essex County report is a
conclusory one-page document that states little more than that Rutkowski “meets listing 1.04.” The
report does not state which of the three subsections in Listing 1.04 Rutkowski’s impairments
satisfy, and does not explain the facts or reasoning that led to this determination. The Appeals
Council did not err in refusing to review the decision.
3. Residual functional capacity
Rutkowski next argues that substantial evidence does not support the ALJ’s determination of
his residual functional capacity (“RFC”). A claimant’s RFC is the most he can do in a work setting
despite his physical and mental limitations. 20 C.F.R. § 404.1545(a)(1). Light work includes lifting
no more than 20 pounds or carrying no more than 10 pounds, and may involve “a good deal of
walking or standing, or . . . sitting most of the time with some pushing and pulling of arm or leg
controls.” 20 C.F.R. § 416.967(b).
The ALJ based his RFC determination on “the evidence in the entire record to include the
claimant’s own statements and allegations as well as those of the treating and examining
physicians.” Substantial evidence exists to support this determination. Following the initial surgery
in July 2003, Dr. Krag prescribed a lifting limit of 25 pounds. In November, the doctor raised
Rutkowski’s lifting limit to 50 pounds. In March 2004, primary treating physician Dr. Sherman,
whose opinion is controlling if it is “well-supported” and “not inconsistent with the other
substantial evidence,” 20 C.F.R. § 416.927(d)(2), indicated that Rutkowski was fit to perform light
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work. Another examination by a consulting physician in April 2004 shows that he had relatively
good mobility, full hand and finger dexterity, full spinal flexion, and full range of motion of
shoulders, arms, hips, knees, and ankles. Combined, this body of evidence substantially supports
the ALJ’s RFC determination.
4. The ALJ’s credibility finding
Rutkowski next contends that substantial evidence does not support the ALJ’s finding that
he was “not totally credible.” The ALJ is entitled to find a claimant not credible if his testimony
contradicts the record. Aponte v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591-92 (2d
Cir. 1984). A court must uphold the ALJ’s rejection of a claimant’s subjective complaints of pain
“[i]f the [ALJ’s] findings are supported by substantial evidence.” Id. at 591.
In finding Rutkowski less than credible, the ALJ noted inconsistencies between allegations
made before the hearing and his testimony at the initial administrative hearing. He also noted that
substantial evidence existed showing that Rutkowski was relatively “mobile and functional,” and
that Rutkowski’s allegations of disability contradicted the broader evidence. The ALJ thus
adequately supported his credibility finding.
We have considered Rutkowski’s remaining arguments on appeal and find them to be
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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