19-3094
Cook v. Comm’r of Soc. Sec.

                              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
28th day of August, two thousand twenty.

Present:      ROSEMARY S. POOLER,
              PETER W. HALL,
              DENNY CHIN,
                          Circuit Judges.
        _____________________________________________________

BETTY L. COOK,

                                Plaintiff-Appellant,

                         v.                                                19-3094-cv

COMMISSIONER OF SOCIAL SECURITY,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:        Justin Mark Goldstein, Law Offices of Kenneth Hiller, PLLC,
                                Amherst, N.Y.

Appearing for Appellee:         Nahid Sorooshyari, Special Assistant United States Attorney (Ellen
                                E. Sovern, Regional Chief Counsel, Office of the General Counsel,
                                Social Security Administration, on the brief), for James P.
                                Kennedy, Jr., United States Attorney for the Western District of
                                New York, Buffalo, N.Y.
Appeal from the United States District Court for the Western District of New York (Carter,
M.J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Betty Cook appeals from the July 29, 2019 judgment of the United States
District Court for the Western District of New York (Carter, M.J.), affirming an administrative
law judge’s (“ALJ’s”) September 29, 2017 denial of Cook’s application for Social Security
disability insurance benefits. The ALJ concluded that Cook was not disabled. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

       Cook raises three arguments on appeal. First, Cook argues that the ALJ erred in
concluding that Cook maintained a Residual Functional Capacity (“RFC”) to perform sedentary
work. Second, she claims that the ALJ failed to develop the record. Third, she argues that the
Appeals Council erred in denying her request to review the ALJ’s decision.

        “On appeal, we conduct a plenary review of the administrative record to determine if
there is substantial evidence, considering the record as a whole, to support the Commissioner’s
decision and if the correct legal standards have been applied.” Shaw v. Chater, 221 F.3d 126, 131
(2d Cir. 2000). Substantial evidence “means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal quotation marks and citation omitted). “When deciding an appeal from a denial of
disability benefits, we focus on the administrative ruling rather than the district court’s opinion.”
McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (internal quotation marks and citation
omitted). It is well-established that an ALJ “has an affirmative obligation to develop the
administrative record.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).

        Cook argues that the ALJ’s conclusions that (1) Cook could perform sedentary work if
she alternated positions between standing or walking for thirty minutes to sitting for fifteen
minutes; (2) she could balance or stoop occasionally; (3) she could reach overhead with her right
arm; and (4) she could conduct simple, routine work involving limited interaction with the
general public, were not supported by substantial evidence.

         There was substantial evidence supporting the ALJ’s determinations in this case. The
district court relied on consulting physician reports and treatment notes in coming to its
determination. Dr. Miller’s report indicated that Cook did not have any limitations on her ability
to stand or walk and reach overhead. Dr. Miller only found a moderate limitation for kneeling
and squatting. Dr. Santarpia found that Cook could perform simple tasks independently and
relate adequately with others. Although the ALJ did not assign controlling weight to these
reports in light of Cook’s subsequent surgeries and continued mental health treatment, no other
medical evidence in the record indicates that Cook faced any limitations not reflected in the
ALJ’s RFC. Therefore, the ALJ’s determination was sufficiently supported.




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        Turning to Cook’s second argument, although there was no medical opinion providing
the specific restrictions reflected in the ALJ’s RFC determination, such evidence is not required
when “the record contains sufficient evidence from which an ALJ can assess the [claimant’s]
residual functional capacity.” Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d Cir.
2013); see also Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999). Here, the treatment notes
were in line with the ALJ’s RFC determinations. And because Cook failed to adduce any
medical evidence inconsistent with the ALJ’s determinations, the ALJ was not faced with “any
clear gaps in the administrative record” that gave rise to an affirmative obligation to seek a
medical opinion. See Rosa, 168 F.3d at 79-80.

        Finally, we reject Cook’s argument that the Appeals Council erred in declining her
request for review. The Appeals Council declined the request because there was not a reasonable
probability that the additional evidence, which related to surgeries done by Dr. Dyskin to control
an infection that had arisen in Cook’s left knee as a result of her prior surgery, would have
changed the ALJ’s decision. We agree. Contrary to Cook’s assertions, the evidence does not
undermine the ALJ’s conclusion that Cook’s knee ultimately improved. The surgeries served to
cure the complication from the prior surgery, and there is no indication that this goal was not
met.

       Cook also raises, for the first time on appeal, the argument that the evidence submitted to
the Appeals Council would have altered the ALJ’s conclusion that Cook did not suffer from a
severe hip impairment. Because this argument was not raised before the district court, we
consider it waived. Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006).

        We have considered the remainder of Cook’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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