Suttles v. Colvin

15-3803
Suttles 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 30th day of June, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 DOREEN SUTTLES,
13 Plaintiff-Appellant,
14
15 -v.- 15-3803
16
17 CAROLYN W. COLVIN,
18 Defendant-Appellee.
19 - - - - - - - - - - - - - - - - - - - -X
20
21 FOR APPELLANT: MARK SCHNEIDER, Plattsburgh, New
22 York.
23
24 FOR APPELLEE: HEETANO SHAMSOONDAR, Special
25 Assistant U.S. Attorney (with
26 Stephen P. Conte, Regional Chief
27 Counsel - Region II Office of
28 the General Counsel Social
1
1 Security Administration, on the
2 brief), for Richard S.
3 Hartunian, United States
4 Attorney for the Northern
5 District of New York.
6
7 Appeal from a judgment of the United States District
8 Court for the Northern District of New York (Suddaby, J.).
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the judgment of the district court be
12 AFFIRMED.
13
14 Plaintiff Doreen Suttles appeals from the district
15 court’s affirmance of a decision of the Commissioner of
16 Social Security (“Commissioner”) denying her application for
17 Social Security disability benefits. We review the
18 administrative record de novo, and will uphold the
19 Commissioner’s decision if it is supported by substantial
20 evidence and the correct legal standards were applied. See
21 Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010); Talavera
22 v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (“Substantial
23 evidence . . . . means such relevant evidence as a
24 reasonable mind might accept as adequate to support a
25 conclusion.” (internal quotation marks omitted)). We assume
26 the parties’ familiarity with the underlying facts, the
27 procedural history, and the issues presented for review.
28
29 1. Suttles contends that the ALJ improperly evaluated
30 the opinions of pulmonologist Dr. Kabeli and consultative
31 examiner Dr. Wassef. Medical opinions are evaluated based
32 on, inter alia, the following factors: (1) the evidence in
33 support of the opinion; (2) the consistency of the opinion
34 with the record as a whole; (3) the specialty of the
35 physician; and (4) any other factors which may support or
36 contradict the opinion. See 20 C.F.R. §§ 404.1527(c),
37 416.927(c).
38
39 Under the Commissioner’s regulations, the ALJ accorded
40 great weight to Dr. Wassef’s opinion because it was
41 consistent with the evidence in the record. As the district
42 court ruled, Dr. Kabeli did not specify any functional
43 limitations, and Dr. Wassef’s opinion was supported by
44 substantial evidence, including Dr. Kabeli’s treatment
45 notes.
46
2
1 2. The plaintiff argues that she is per se disabled
2 under Listing 3.02. To satisfy the requirements for chronic
3 pulmonary insufficiency disorder, a claimant must show an
4 FEV1 equal to or less than 1.45 or an FVC equal to or less
5 than 1.65 for an individual of Suttles’s height (68 inches).
6 See 20. C.F.R. Pt. 404, Subpt. P, App’x 1, § 3.02. The
7 Commissioner’s regulations state that when evaluating a
8 claimant’s impairments under this listing, the “highest
9 values of the FEV1 and FVC, whether from the same or
10 different tracings, should be used to assess the severity of
11 the respiratory impairment.” Id. § 3.00E. Therefore, the
12 ALJ properly relied on the higher pulmonary function test
13 results in determining that Suttles’s impairment did not
14 meet or equal the requirements of Listing 3.02.
15
16 3. Suttles argues that the ALJ erred in evaluating her
17 credibility. Specifically, the ALJ cited her failure to
18 quit smoking despite her doctors’ recommendations. The
19 Commissioner is not obligated to accept without question a
20 claimant’s testimony about her limitations and symptoms, but
21 has discretion to evaluate the claimant’s credibility in
22 light of the evidence in the record. See Genier v. Astrue,
23 606 F.3d 46, 49 (2d Cir. 2010); Westfall v. Colvin, 137 F.
24 Supp. 3d 340, 346 (W.D.N.Y. 2015) (upholding credibility
25 determination where failure to quit smoking was at issue
26 based on other record evidence).
27
28 Although an ALJ may find a plaintiff less credible if
29 she failed to follow medical treatment, an ALJ is obligated
30 to consider any explanation a plaintiff may have for the
31 failure, see Soc. Sec. Ruling 16-3p; Titles II and XVI:
32 Evaluation of Symptoms in Disability Claims, 81 Fed. Reg.
33 14,166, 14,170-71 (Mar. 16, 2016), and here the ALJ did not
34 consider any explanation for the failure to quit smoking.
35 See Goff v. Astrue, 993 F. Supp. 2d 114, 128 (N.D.N.Y. 2012)
36 (“[G]iven the addictive nature of smoking, the failure to
37 quit is as likely attributable to factors unrelated to the
38 effect of smoking on a person’s health.” (citation and
39 quotation marks omitted)).
40
41 Despite this error, the ALJ’s decision here was
42 supported by other substantial evidence in the record: the
43 ALJ considered Suttles’s allegations and found that they
44 were not supported by the medical evidence. Additionally,
45 the ALJ found that her description of her daily activities -
46 - which included cooking, some cleaning, helping with
47 laundry, and shopping with her husband -- were inconsistent
3
1 with her level of complaints. As the district court ruled,
2 any error was harmless because substantial evidence
3 supported the ALJ’s overall credibility determination.
4
5 4. The ALJ specifically found that the plaintiff had
6 chronic obstructive pulmonary disease (“COPD”), obesity,
7 major depression, and an anxiety disorder as impairments,
8 but that those impairments did not rise to the level of a
9 disability. Suttles argues that the ALJ failed to consider
10 these conditions together. However, the ALJ considered her
11 impairments in combination, as well as separately. See
12 Rivers v. Astrue, 280 F. App'x 20, 23 (2d Cir. 2008)
13 (rejecting allegations that the ALJ failed to consider
14 impairments in combination where record showed that each
15 ailment and its cumulative effects was considered).
16
17 5. Suttles argues that the Appeals Council erred by not
18 considering a new IQ test and mental evaluation. Under the
19 Commissioner’s regulations, the Appeals Council will
20 consider new and material evidence only if it relates to the
21 relevant period on or before the date of the ALJ’s decision.
22 Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996). Evidence is
23 material if it is relevant to the claimant’s condition
24 during the time period for which benefits were denied, and
25 there is a reasonable possibility that the new evidence
26 would have influenced the ALJ to decide the claimant’s
27 application differently. Jones v. Sullivan, 949 F.2d 57, 60
28 (2d Cir. 1991).
29
30 We have held that “medical evidence generated after an
31 ALJ’s decision [can] not be deemed irrelevant solely because
32 of timing, [as] subsequent evidence of the severity of a
33 condition suggests that the condition may have been more
34 severe in the past than previously thought.” Williams v.
35 Comm’r Soc. Sec., 236 F. App’x 641, 644 (2d Cir. 2007);
36 Pollard v. Halter, 377 F.3d 183, 194 (2d Cir. 2004). It
37 certainly can be argued that Dr. Liotta’s report on
38 Suttles’s IQ and mental capacity, even if based on an
39 evaluation of Suttles that post-dated the ALJ’s decision,
40 provides evidence of Suttles’s condition during the period
41 for which she sought benefits, and that, therefore, it was
42 error for the Appeals Council not to have considered it.
43 Cf. Talavera v. Astrue, 697 F.3d 145, 152 (2d Cir. 2012)
44 (agreeing with “majority of our sister Circuits that it is
45 reasonable to presume, in the absence of evidence indicating
46 otherwise, that claimants will experience a fairly constant
47 IQ throughout their lives” (internal quotation marks and
4
1 alterations omitted)); Muncy v. Apfel, 247 F.3d 728, 734
2 (8th Cir. 2001) (stating that “a person’s IQ is presumed to
3 remain stable over time in the absence of any evidence of a
4 change in claimant’s intellectual functioning” and
5 collecting cases). But, assuming that the Appeals Council
6 erred, there was nevertheless no reasonable possibility that
7 consideration of Dr. Liotta’s report would have altered the
8 ALJ’s decision, because the evidence that Dr. Liotta adduced
9 was not materially different from that which was already
10 before the ALJ and the vocational expert when they reached
11 their conclusions.
12
13 6. Suttles argues that the defendant failed to show at
14 “Step 5” that Suttles could do work. The ALJ did not err in
15 its residual functional capacity analysis, and the
16 vocational expert’s testimony that there are jobs existing
17 in the national economy constitutes substantial evidence
18 supporting the ALJ’s five step determination. See McIntyre
19 v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014)
20
21 For the foregoing reasons, and finding no merit in the
22 plaintiff’s other arguments, we hereby AFFIRM the judgment
23 of the district court.
24
25 FOR THE COURT:
26 CATHERINE O’HAGAN WOLFE, CLERK
27
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