Camille v. Colvin , 652 F. App'x 25 ( 2016 )

15-2087
Camille 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 A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 15th day of June, two thousand sixteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 RALPH K. WINTER,
8 DENNIS JACOBS,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 BRIAN MICHAEL CAMILLE,
13 Plaintiff-Appellant,
14
15 -v.- 15-2087
16
17 CAROLYN W. COLVIN, Acting Commissioner
18 of Social Security,
19 Defendant-Appellee.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: JUSTIN GOLDSTEIN, Law Offices of
23 Kenneth Hiller PLLC, Amherst,
24 New York.
25
26 FOR APPELLEE: SERGEI ADEN, Special Assistant
27 United States Attorney (Stephen
28 P. Conte, Regional Chief
1
1 Counsel, on the brief), Office
2 of the General Counsel, Region
3 II, Social Security
4 Administration, New York, New
5 York, for William J. Hochul,
6 Jr., United States Attorney for
7 the Western District of New
8 York.
9
10 Appeal from a judgment of the United States District
11 Court for the Western District of New York (Wolford, J.).
12
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14 AND DECREED that the judgment of the district court be
15 AFFIRMED.
16
17 Brian Michael Camille appeals from the judgment of the
18 United States District Court for the Western District of New
19 York (Wolford, J.), dismissing Camille’s complaint
20 challenging the denial of disabled adult child’s benefits
21 under Title II and supplemental security income under Title
22 XVI of the Social Security Act (the “Act”).1 We assume the
23 parties’ familiarity with the underlying facts, the
24 procedural history, and the issues presented for review.
25
26 When considering a denial of disability benefits, we
27 conduct a plenary review of the administrative record, and
28 “focus on the administrative ruling rather than the district
29 court’s opinion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
30 Cir. 2009) (quoting Kohler v. Astrue, 546 F.3d 260, 264-65
31 (2d Cir. 2008)). We must uphold the denial if “there is
32 substantial evidence, considering the record as whole, to
33 support the Commissioner’s decision and if the correct legal
34 standards have been applied.” Burgess v. Astrue, 537 F.3d
35 117, 128 (2d Cir. 2008) (quoting Shaw v. Chater, 221 F.3d
36 126, 131 (2d Cir. 2000)); see also 42 U.S.C. § 405(g).
37 “‘Substantial evidence’ is evidence that amounts to ‘more
38 than a mere scintilla,’ and has been defined as ‘such
39 relevant evidence as a reasonable mind might accept as
40 adequate to support a conclusion.’” McIntyre v. Colvin, 758
1
Camille alleged an onset date of November 1, 2009; to
be eligible for disabled adult child’s benefits he was
required to show that his disability began before August 29,
2010, his 22nd birthday. See 42 U.S.C. § 402(d)(1); 20
C.F.R. § 404.350.
2
1 F.3d 146, 149 (2d Cir. 2014) (quoting Richardson v. Perales,
2 402 U.S. 389, 401 (1971)).
3
4 Camille challenges the Administrative Law Judge’s
5 (“ALJ”) residual functional capacity (“RFC”) finding as to
6 Camille’s mental limitations. The ALJ found that Camille
7 had the RFC “to perform medium work . . . except that he is
8 limited to simple routine and repetitive tasks; he requires
9 low stress work, defined as no production paced work,
10 occasional changes to work setting, occasional use of
11 judgment, and occasional decision making; he is limited to
12 occasional and superficial interaction with coworkers and
13 supervisors; he should have no interaction with the public;
14 he should have no exposure to hazards; and he should have no
15 more than frequent exposure to humidity, extremes in
16 temperature, and wetness.” Certified Administrative R.
17 (“R.”) at 53. He contends that this finding was not
18 supported by substantial evidence, because the ALJ
19 improperly weighed the medical opinion evidence, attributing
20 “little weight” to the opinions of Camille’s treating
21 psychiatrist, Dr. Dawood, and “great weight” to the opinion
22 of the State agency consulting psychologist, Dr. Kamin. We
23 disagree.
24
25 Pursuant to the “treating physician rule,” Dr. Dawood’s
26 opinion “as to the nature and severity of [Camille’s]
27 impairment is given ‘controlling weight’ so long as it ‘is
28 well-supported by medically acceptable clinical and
29 laboratory diagnostic techniques and is not inconsistent
30 with the other substantial evidence in [the] case record.’”
31 Burgess, 537 F.3d at 128 (emphasis added) (quoting 20 C.F.R.
32 § 404.1527[(c)](2)). “[T]he opinion of the treating
33 physician is not afforded controlling weight where . . . the
34 treating physician issued opinions that are not consistent
35 with other substantial evidence in the record, such as the
36 opinions of other medical experts.” Halloran v. Barnhart,
37 362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (citation
38 omitted). If a treating physician’s opinion is not afforded
39 controlling weight, the ALJ must consider certain factors to
40 determine how much weight to give it, and should articulate
41 “good reasons” for the weight given. Id.; see also 20
42 C.F.R. § 404.1527(c)(2).
43
44 Substantial evidence supports the limited weight that
45 the ALJ attributed Dr. Dawood’s opinions, because they were
46 in conflict with content in that doctor’s own clinical
3
1 notes,2 and in conflict with the opinion of Dr. Kamin. R.
2 at 55-57. Furthermore, each of the check-box forms Dr.
3 Dawood completed specifically requested narrative
4 explanation of any opined limitations--particulars he
5 declined to provide. See R. at 291, 376-77, 385-86.
6 Additionally, the ALJ specifically noted that Camille’s
7 record of psychiatric treatment was “intermittent,”
8 including a six-month gap between his first and second
9 appointments with Dr. Dawood. R. at 55, 57. These
10 constitute “good reasons” for the limited weight attributed.
11 Halloran, 362 F.3d at 32 (factors include, inter alia,
12 frequency of examination; the evidence in support of the
13 opinion; the consistency of the opinion with the record as a
14 whole; other factors that tend to support or contradict the
2
This includes, e.g., Dr. Dawood’s relatively
consistent descriptions of Camille’s intact cognitive and
communicative skills, R. at 281, 284-85, 338, 341, 348, 360,
365, 367, 371, 379 (describing Camille as attentive, fully
communicative, coherent, with logical thinking and intact
memory/cognitive function); the recommendation that Camille
participate in Vocational and Education Services for
Individuals with Disabilities, R. at 278, 280, 389;
see Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per
curiam) (ALJ’s finding that claimant was capable of
performing light work supported by reports of treating
orthopedic specialist, which consistently stated that
claimant “would be an excellent candidate for vocational
rehabilitation”); and Camille’s consistently moderate Global
Assessment of Functioning (“GAF”) scores, R. at 280, 283,
338, 341, 363, 366, 369, 371.
Camille concedes that GAF scores are “one factor to
consider” in determining a claimant’s RFC, but argues that
the ALJ here erred because (1) she relied on them
exclusively, and (2) Dr. Dawood did not assess Camille’s GAF
scores on days of “worsening or increased symptoms,”
although he identifies only one such day, in January 2012.
Br. of Appellant at 54-55. The record does not indicate
that the ALJ relied on Camille’s GAF scores to the exclusion
of other evidence; and Camille does not explain how a single
day of allegedly increased symptoms in 2012 is material to
Camille’s burden to show disability that lasted or was
expected to last for a continuous period of at least twelve
months (beginning in November 2009). See 42
U.S.C. § 1382c(a)(3)(A).
4
1 opinion); see also 20 C.F.R. § 404.1527(c)(3) (“The better
2 an explanation a source provides for an opinion, the more
3 weight we will give that opinion.”). To the extent Camille
4 argues that the ALJ was insufficiently explicit in
5 articulating her rationale, we disagree. See Cichocki v.
6 Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (“An ALJ need
7 not recite every piece of evidence that contributed to the
8 decision, so long as the record ‘permits us to glean the
9 rationale of an ALJ’s decision.’” (quoting Mongeur v.
10 Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam))).3
11
12 Camille argues that it is “improper to reject a
13 treating physician’s opinion solely based upon the treating
14 physician’s own treatment notes.” Br. of Appellant at 32
15 (citing Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
16 In Balsamo, the ALJ rejected the treating source’s opinion
17 notwithstanding the lack of a contrary medical opinion. We
18 held that “[w]hile an ALJ is free . . . to choose between
19 properly submitted medical opinions, he is not free to set
20 his own expertise against that of a physician who submitted
21 an opinion to or testified before him.” 142 F.3d at 81
22 (brackets omitted) (quoting McBrayer v. Sec’y of HHS, 712
23 F.2d 795, 799 (2d Cir. 1983)). Here, there was such a
24 contrary opinion. The ALJ was permitted to consider Dr.
25 Dawood’s treatment notes in weighing the opinions of Dr.
26 Dawood and Dr. Kamin; and she was permitted to conclude that
27 Dr. Kamin’s opinion was more reliable. See Diaz v. Shalala,
28 59 F.3d 307, 313 n.5 (2d Cir. 1995) (“[T]he regulations . .
29 . permit the opinions of nonexamining sources to override
30 treating sources’ opinions provided they are supported by
31 evidence in the record.”); cf. Mongeur, 722 F.2d at 1039
32 (“[T]he opinion of a treating physician is not binding if it
33 is contradicted by substantial evidence, and the report of a
34 consultative physician may constitute such evidence.”
35 (citation omitted)).
36
3
Camille contends that the ALJ “failed to evaluate or
weigh [Dr. Dawood’s] opinion from October 12, 2011.” Br. of
Appellant at 48. While the ALJ’s written decision did not
specifically reference this document, “an ALJ is not
required to discuss every piece of evidence submitted. An
ALJ’s failure to cite specific evidence does not indicate
that such evidence was not considered.” Brault v. SSA,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam)
(internal quotation marks and citation omitted).
5
1 We cannot say that the ALJ erred in the application of
2 the regulatory factors to Dr. Kamin’s opinion. Although the
3 ALJ did not describe in detail her rationale, we can infer
4 from the decision that she attributed “great weight” to the
5 opinion because she found it most consistent with the record
6 as a whole, including: Dr. Dawood’s treatment notes;
7 treatment notes from Camille’s social worker (Patrice
8 Goodrich); Camille’s daily activity reports; and Camille’s
9 credible testimony. Cichocki, 729 F.3d at 178 n.3; see also
10 Halloran, 362 F.3d at 31–32 (affirming ALJ opinion which did
11 “not expressly acknowledge the treating physician rule,” but
12 where “the substance of the treating physician rule was not
13 traversed” (internal quotation marks omitted)).
14 Furthermore, Dr. Kamin is a specialist and an Agency
15 consultant (an “expert[] in the evaluation of the medical
16 issues in disability claims under the Act,” SSR 96-6p, 1996
17 WL 374180, at *2 (July 2, 1996)), and his check-box opinions
18 were supplemented by narrative explanation. See 20 C.F.R.
19 § 404.1527(c)(3)-(6).4
4
Camille argues that Dr. Kamin’s opinion is not
substantial evidence because it is “stale.” Dr. Kamin
issued his opinion in November 2011; Camille was initially
denied benefits in December 2011; and the ALJ hearing
occurred September 2012. Between November 2011 and
September 2012, Camille argues, additional treatment records
(dated January 2012 to July 2012) and two of Dr. Dawood’s
opinions (dated June 2011 and August 2012) were submitted
into evidence--so Dr. Kamin did not review these materials.
Br. of Appellant at 32-37.
No case or regulation Camille cites imposes an
unqualified rule that a medical opinion is superseded by
additional material in the record, and in this case the
additional evidence does not raise doubts as to the
reliability of Dr. Kamin’s opinion. Cf. Hidalgo v. Bowen,
822 F.2d 294, 295-96, 298 (2d Cir. 1987) (opinion based on
incomplete medical record was undermined by its conflict
with opinions of two treating physicians, which were
supported by extensive X-ray evidence, hospital reports, and
treatment notes over an 18-month period; and may have been
altered by review of the additional medical records
containing clinical findings confirming treating physicians’
diagnosis), limited by regulation as stated in Schisler v.
Sullivan, 3 F.3d 568 (2d Cir. 1993). While a bit more
detailed, Dr. Dawood’s June 2011 and August 2012 opinions do
6
1
2 For substantially the reasons discussed above, and
3 those explained in the district court’s opinion, the ALJ’s
4 RFC finding was supported by substantial evidence,
5 including: Dr. Kamin’s opinion; Dr. Dawood’s treatment
6 notes; the treatment notes of Ms. Goodrich; Camille’s daily
7 activity reports; and Camille’s credible testimony.5
8
9 For the foregoing reasons, and finding no merit in
10 Camille’s other arguments, we hereby AFFIRM the judgment of
11 the district court.
12
13 FOR THE COURT:
14 CATHERINE O’HAGAN WOLFE, CLERK
15
not differ materially from the October 2011 opinion, which
Dr. Kamin did review: all three opined that Camille had
limitations related to concentration, persistence, social
interaction, and adaption, and that he was unable to work.
R. at 290-91, 376-78, 385-87.
5
The ALJ used Dr. Kamin’s opinion as the basis for the
RFC but incorporated additional limitations based on, inter
alia, the testimony of Camille that she credited. An ALJ
may accept parts of a doctor’s opinion and reject others.
Veino v. Barnhart, 312 F.3d 578, 588-89 (2d Cir. 2002); see
also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (“Although
we consider opinions from medical sources on issues such as
. . . your residual functional capacity . . . the final
responsibility for deciding these issues is reserved to the
Commissioner.”).
7