09-4438-cv
Carvey v. Astrue

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR 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 ELECTRONIC 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 7 th day of June, two thousand ten.

PRESENT:         JOSEPH M. McLAUGHLIN,
                 CHESTER J. STRAUB,
                 REENA RAGGI,
                         Circuit Judges.
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CHAUNCEY D. CARVEY,
                         Plaintiff-Appellant,
                 v.                                                            No. 09-4438-cv

MICHAEL ASTRUE, COMMISSIONER OF
SOCIAL SECURITY,
                         Defendant-Appellee.
---------------------------------------------------------
APPEARING FOR APPELLANT:                          JAYA A. SHURTLIFF, Olinsky & Shurtliff,
                                                  Syracuse, New York.

APPEARING FOR APPELLEE:                           THOMAS C. GRAY, Special Assistant United
                                                  States Attorney (Stephen P. Conte, Acting
                                                  Regional Chief Counsel – Region II, Social
                                                  Security Administration, on the brief), for Richard
                                                  S. Hartunian, United States Attorney for the
                                                  Northern District of New York, New York, New
                                                  York.
       Appeal from the United States District Court for the Northern District of New York

(Norman A. Mordue, Chief Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the September 30, 2009 judgment of the district court is AFFIRMED.

       Chauncey Carvey appeals from the district court’s affirmance of a decision of the

Commissioner of Social Security (“Commissioner”) denying his application for Social

Security disability insurance benefits. In such a case, “we review the administrative record

de novo to determine whether there is substantial evidence supporting the Commissioner’s

decision and whether the Commissioner applied the correct legal standard.” Zabala v.

Astrue, 595 F.3d 402, 408 (2d Cir. 2010) (internal quotation marks omitted). “Substantial

evidence means more than a mere scintilla. It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112

(2d Cir. 2009) (internal quotation marks omitted). We assume familiarity with the facts and

the record of prior proceedings, which we reference only as necessary to explain our

decision.

       1.     Treating Physician Rule

       Carvey contends that the administrative law judge (“ALJ”) erred in failing to give

controlling weight to the disability opinions of two treating physicians, Drs. Padma Ram and

Michael Gabris. A treating physician’s opinion is entitled to controlling weight with respect

to the nature and severity of a claimed impairment if it is “well-supported by medically



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acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2); see also Halloran v.

Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). That is not this case.

       Carvey’s disability claim is based on the residual effects of a relatively mild May 2003

stroke, together with poorly controlled Type II diabetes, pulmonary edema, cardiac

abnormality, obesity, sleep apnea, disc protrusion, carpal tunnel syndrome, chronic

radiculopathy, pericarditis, and anxiety disorder. In March 2004, Dr. Ram opined that

Carvey was unable to perform any activity that could raise his heart rate, noting that her

opinion was “per Dr. Simmons,” i.e., Gerald Simmons, Carvey’s treating physician from

February through November 2003, and “per . . . cardiologist,” presumably Dr. Gabris.1

       In a letter dated October 14, 2004, Dr. Gabris stated that Carvey could perform

sedentary work provided no lifting was involved. In November 2004, Dr. Gabris stated that

Carvey could stand or walk for less than two hours in a typical workday and sit for only four

hours a day. A review of Carvey’s treating physician challenge properly focuses on these

noted limitations because, in the Social Security context, a person must be able to lift ten


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        Carvey faults the ALJ for overlooking Dr. Ram’s 2004 statement while noting that
the doctor’s March 2005 statement was incomplete. Even if we were persuaded of such an
oversight by the ALJ, we would conclude that no reasonable likelihood existed of a different
outcome because both of Dr. Ram’s statements expressly defer to the cardiologist respecting
Carvey’s limitations, and Dr. Gabris’s opinions, for reasons discussed infra, do not command
controlling weight. See Zabala v. Astrue, 595 F.3d at 410. Insofar as Carvey faults the
ALJ’s reliance on Dr. Ram’s 2005 statement because she “subsequently completed a medical
source form indicating specific limitations,” Carvey mischaracterizes the record. The
“subsequent” form he references is, in fact, dated March 4, 2004.

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pounds occasionally, sit for a total of six hours, and stand or walk for a total of two hours in

an eight-hour workday to be capable of “sedentary work.” See Rosa v. Callahan, 168 F.3d

72, 78 n.3 (2d Cir. 1999); 20 C.F.R. § 404.1567(a).

       As the district court correctly observed, Dr. Gabris’s own statements do not

consistently conclude that Carvey cannot engage in any lifting at all. At various times, Dr.

Gabris indicated that what Carvey could not engage in was “heavy lifting,” specifically,

lifting “more than five to ten pounds.” While an ALJ may not reject a treating physician’s

disability opinion based “solely” on internal conflicts in that physician’s clinical findings,

Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998), here the record contains other medical

opinions also at odds with a conclusion that Carvey was precluded from any lifting. Dr.

Simmons, Carvey’s primary care physician, authorized Carvey’s return to work in June 2003

subject only to a thirty-pound lifting restriction. Meanwhile, consulting physician Kalyani

Ganesh stated in March 2004 that Carvey was precluded from “heavy lifting,” while

consulting neurologist Patrick Hughes concluded in February 2005 that Carvey should not

lift “more than five to ten pounds.”         Moreover, in his hearing testimony, Carvey

acknowledged that he could carry five to ten pounds. This record provides a sufficient basis

for the ALJ’s decision not to give controlling weight to a treating physician opinion that

Carvey could do no lifting.

       As for limits on Carvey’s ability to sit, stand, or walk noted by Dr. Gabris in

November 2004, the opinion is at odds with the view expressed in Dr. Gabris’s February



                                               4
2005 office notes that Carvey’s “activity [wa]s unlimited with the exception to heavy lifting.”

It is further contradicted by Dr. Simmons, who, on authorizing Carvey’s return to work,

noted no sitting, standing, or walking limitations, only a lifting limitation. Indeed, in May

2003, Dr. Simmons encouraged Carvey to “go on about his life as he did before with the

exception of straining and heavy lifting.” Similarly, Dr. Ganesh, at the same time that he

found that Carvey should “avoid heavy lifting, carrying, pushing, pulling,” noted “[n]o gross

physical limitation . . . to sitting, standing, walking.” Although Dr. Hughes indicated that

Carvey could not sit for “more than thirty minutes,” or stand for “more than thirty to sixty

minutes,” as Carvey himself acknowledged in his pre-hearing memorandum to the ALJ, this

opinion is reasonably understood to reference Carvey’s ability to sit or stand “at one time,”

not over the course of an eight-hour workday. Pl.’s Pre-Hr’g Mem. at 3. Thus, the record

was sufficient to support the ALJ’s decision not to give controlling weight to Dr. Gabris’s

opinion as to the limited total time Carvey could sit, stand, and walk during a workday.

       Further, because the record evidence was adequate to permit the ALJ to make a

disability determination, we identify no merit in Carvey’s claim that the ALJ was obligated

sua sponte to recontact the treating physicians, see Perez v. Chater, 77 F.3d 41, 47-48 (2d

Cir. 1996); 20 C.F.R. § 404.1512(e), assuming arguendo that such a claim is even preserved

for our review, but see Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (holding that

claimant represented by counsel in district court must present argument in that forum to

preserve it for appellate review).



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       2.     Residual Functional Capacity

       Carvey’s contention that the ALJ erred in finding that plaintiff possessed the residual

functional capacity to perform sedentary work warrants little discussion in light of our

conclusion that the ALJ was not compelled to give controlling weight to the contrary

opinions of Dr. Ram and Dr. Gabris and our identification of substantial record evidence

supporting the challenged finding. In light of the medical evidence supporting the ALJ’s

findings, we reject Carvey’s suggestion that the ALJ impermissibly “set his own expertise

against that of a physician.” Balsamo v. Chater, 142 F.3d at 81 (internal quotation marks

omitted).

       3.     Credibility Assessment

       Carvey submits that, in finding his testimony “not entirely credible,” the ALJ failed

to give proper weight to his strong work history. In reviewing this challenge, we are mindful

that it is the function of the Commissioner, not reviewing courts, to appraise witness

credibility. See Aponte v. Sec’y Dep’t of HHS, 728 F.2d 588, 591 (2d Cir. 1984).

       To be sure, “a good work history may be deemed probative of credibility.” Schaal v.

Apfel, 134 F.3d 496, 502 (2d Cir. 1998); see also Rivera v. Schweiker, 717 F.2d 719, 725

(2d Cir. 1983) (noting that “[a] claimant with a good work record is entitled to substantial

credibility when claiming an inability to work because of a disability”). Work history,

however, is “just one of many factors” appropriately considered in assessing credibility.

Schaal v. Apfel, 134 F.3d at 502.



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       In rejecting Carvey’s testimony as to the severity of his impairment, the ALJ

reasonably relied on contrary record evidence, including extensive objective medical test

results, the aforementioned medical opinions, and Carvey’s own account of his participation

in a range of activities such as shopping, cooking, childcare, and operating a riding

lawnmower, as well as attending school functions, cookouts, and auto races. See 20 C.F.R.

§ 404.1529(c)(3)(i). Further, the ALJ did not ignore Carvey’s work history. Rather, he

reasonably viewed Carvey’s ability to engage in “heavy work activity” notwithstanding his

bad back, obesity, sleep apnea, diabetes, and carpal tunnel syndrome as some evidence that

his claimed inability to perform any work at all was based primarily on the residual effects

of the May 2003 stroke.

       On this record, we identify no error in the ALJ’s credibility assessment.

       4.     Vocational Expert

       Finally, Carvey contends that the ALJ erred in relying on the testimony of a vocational

expert because the expert’s opinion was based on a flawed assessment of Carvey’s residual

functional capacity. Because we have already concluded that substantial record evidence

supports that assessment, we necessarily reject Carvey’s vocational expert challenge. See

Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) (noting that Commissioner may rely on

testimony of vocational expert); Dumas v. Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983)

(holding that vocational expert’s testimony satisfied Commissioner’s evidentiary burden

where based on substantial record evidence).



                                              7
      We have considered Carvey’s other arguments on appeal, and we conclude that they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court




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