11-2383-cv
Lohnas 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st
day of January, two thousand thirteen.

PRESENT:
            JOSÉ A. CABRANES,
            RICHARD C. WESLEY,
            DEBRA ANN LIVINGSTON,
                         Circuit Judges.
_____________________________________

DARLENE M. LOHNAS,

                   Plaintiff-Appellant,

                            v.                                      No. 11-2383-cv

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

            Defendant-Appellee.
_____________________________________

FOR PLAINTIFF-APPELLANT:                             Darlene M. Lohnas, pro se, Lockport, N.Y.

FOR DEFENDANT-APPELLEE:                              Benil Abraham, Stephen P. Conte, for William
                                                     J. Hochul, Jr., United States Attorney, United
                                                     States Attorney’s Office for the Western
                                                     District of New York.

       Appeal from a judgment of the United States District Court for the Western District of New
York (William M. Skretny, Chief Judge).
     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s March 31, 2011 Decision and Order is
AFFIRMED.

        Darlene M. Lohnas appeals from the District Court’s dismissal of her complaint, which
seeks review of a final decision of the Commissioner of Social Security (“Commissioner”). The
Commissioner previously had denied her application for disability insurance benefits. We assume
the parties’ familiarity with the underlying facts and procedural history of the case, as well as the
issues on appeal.

                                           DISCUSSION

         This Court reviews de novo orders granting motions for judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c). See Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003).
When reviewing determinations made by the Commissioner, this Court conducts a “plenary review
of the administrative record.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation
marks and citations omitted). This Court may set aside the Commissioner’s decision only if the
factual findings are not supported by substantial evidence, or if incorrect legal standards were
applied. See, e.g., id. at 127.

        Under the Social Security Act, a “disability” is 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 12 months.” 42 U.S.C. § 423(d)(1)(A). To determine whether an individual is disabled,
the Social Security Administration Commission created a five-step sequential evaluation process. 20
C.F.R. § 404.1520. The analysis proceeds as follows:

                First, the [Commissioner] considers whether the claimant is currently engaged in
                substantial gainful activity. If he is not, the [Commissioner] next considers whether
                the claimant has a “severe impairment” which significantly limits his physical or
                mental ability to do basic work activities. If the claimant suffers such an impairment,
                the third inquiry is whether, based solely on medical evidence, the claimant has an
                impairment which is listed in Appendix 1 of the regulations. If the claimant has such
                an impairment, the [Commissioner] will consider him disabled without considering
                vocational factors such as age, education, and work experience; the [Commissioner]
                presumes that a claimant who is afflicted with a “listed” impairment is unable to
                perform substantial gainful activity. Assuming the claimant does not have a listed
                impairment, the fourth inquiry is whether, despite the claimant’s severe impairment,
                he has the residual functional capacity to perform his past work. Finally, if the


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                   claimant is unable to perform his past work, the [Commissioner] then determines
                   whether there is other work which the claimant could perform.

Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d
Cir. 1982)). The claimant bears the burden of proving the first four elements, and, with regard to
the fifth element, there is a limited burden shift to the Commissioner only to show “that there is
work in the national economy that the claimant can do . . . .” Poupore v. Astrue, 566 F.3d 303, 306 (2d
Cir. 2009) (citing 20 C.F.R. § 404.1560(c)(2)).

         Having conducted a careful and plenary review of the administrative record, we conclude
that the Commissioner’s decision was supported by substantial evidence in the record, and we affirm
the judgment of the District Court substantially for the reasons stated in its comprehensive and well-
reasoned decision.1 With regard to Lohnas’s argument that the Administrative Law Judge (“ALJ”)
failed to consider the evidence or standards underlying the determination of disability by the
Department of Veterans Affairs, we note simply that, although a determination made by another
governmental agency that a social security claimant is disabled is entitled to “some weight and
should be considered,” that determination is not binding. See Cutler v. Weinberger, 516 F.2d 1282,
1286 (2d Cir. 1975). Here, the ALJ did acknowledge the Department of Veterans Affairs’
determination of disability. Because the Commissioner is not bound by another agency’s disability
determination, and because the Commissioner’s decision was supported by substantial evidence, any
alleged failure by the ALJ to consider fully the disability determination by the Department of
Veterans Affairs does not affect our decision to affirm.

                                                   CONCLUSION

       We have considered all of Lohnas’s arguments on appeal and find them to be without merit.
Accordingly, the District Court’s March 31, 2011 Decision and Order is AFFIRMED.

                                                                   FOR THE COURT:
                                                                   Catherine O’Hagan Wolfe, Clerk




1 In affirming the District Court’s judgment, we note that because this Court generally does not review arguments raised

for the first time on appeal, see Singleton v. Wulff, 428 U.S. 106, 120-21 (1976), we only consider Lohnas’s arguments raised
below, including that (1) the ALJ erred by finding that her depression was not severe, and (2) that the ALJ failed to
consider the evidence or standards underlying the determination of disability by the Department of Veterans Affairs.

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