13-3231-cv
Koch 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.

       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 25th day of June, two thousand fourteen.

PRESENT: GUIDO CALABRESI,
         GERARD E. LYNCH,
         RAYMOND J. LOHIER, JR.,
                       Circuit Judges.

———————————————————————

STEPHANIE M. KOCH,
                                   Plaintiff - Appellant,
                     v.                                                No.    13-3231-cv


CAROLYN W. COLVIN, Acting Commissioner of Social
Security,
                          Defendant - Appellee.

———————————————————————

FOR APPELLANT:                            Jaya A. Shurtliff, Stanley Law Offices, Syracuse,
                                          New York.


FOR APPELLEE:                             Sandra M. Grossfeld, Special Assistant United
                                          States Attorney (Stephen P. Conte, Regional
                                          Chief Counsel – Region II, Office of the General
                                          Counsel Social Security Administration, of
                                          counsel), New York, New York, for William J.
                                          Hochul, Jr., United States Attorney for the
                                          Western District of New York.
       Appeal from the United States District Court for the Western District of New York

(Richard J. Arcara, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on June 27, 2013, is AFFIRMED.

       Plaintiff-appellant Stephanie M. Koch appeals from a judgment of the United

States District Court for the Western District of New York entered on June 27, 2013,

dismissing her complaint challenging the denial of disability insurance benefits under

Title II of the Social Security Act (“the Act”), 42 U.S.C. § 401 et seq. Koch, who was 28

years old when she filed this application for Social Security benefits, suffers from

scoliosis, kyphosis, status post cervical fusion, migraines, and facet arthritis. She has not

worked for several years due to lower back pain. Koch contends that the district court

erred in finding that substantial evidence supported the decision of Administrative Law

Judge William Weir (“ALJ”) that she was not disabled under sections 216(i) and 223(d)

of the Act. See 42 U.S.C. §§ 416(i) and 423(d). Koch presents three principal arguments

on appeal: (1) the ALJ’s residual functional capacity finding (“RFC”) is the product of

legal error and unsupported by substantial evidence; (2) the ALJ erred by failing to

consult a vocational expert; and (3) the ALJ applied the wrong legal standards in

assessing Koch’s credibility. We assume the parties’ familiarity with the underlying

facts, procedural history, and the remaining issues on appeal, to which we refer only as

necessary to explain our decision to affirm.




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       We review district court orders granting motions for judgments on the pleadings

pursuant to Fed. R. Civ. P. 12(c) de novo. Jasinski v. Barnhart, 341 F.3d 182, 184 (2d

Cir. 2003). In reviewing a denial of disability benefits, we conduct a plenary review of

the record and “focus on the administrative ruling rather than the district court’s opinion.”

Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks omitted).1

We will affirm the denial of benefits if the decision is supported by substantial evidence.

Id. “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.”

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks omitted).

       A claimant is disabled and entitled to benefits if she is unable “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). Federal regulations set forth a “five-step sequential evaluation process”

that guides an ALJ’s determination of whether a claimant is entitled to benefits. 20

C.F.R. § 404.1520(a)(4). At step one, the ALJ must consider whether the claimant is

performing substantial gainful activity. Id. If so, the claimant is deemed not disabled,

and the inquiry ends. At step two, the ALJ must determine whether the claimant has a

“severe medically determinable physical or mental impairment that meets the duration



1
 We note that in this case, the district court adopted the Report and Recommendation of
Magistrate Judge Hugh B. Scott.

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requirement in [20 C.F.R.] § 404.1509, or a combination of impairments that is severe

and meets the duration requirement.” Id. If not, the claimant is deemed not disabled, and

the inquiry ends. At step three, the ALJ must consider whether the claimant’s severe

impairments meet or equal one of the enumerated disabilities listed in Appendix 1 to

Subpart P of 20 C.F.R. § 404. Id. If so, and if the impairment is of sufficient duration,

the claimant is deemed disabled and the inquiry ends. If not, the ALJ proceeds to step

four. At step four, the ALJ must assess the claimant’s RFC to perform work. If the

claimant’s RFC permits her to perform her past relevant work, then the claimant is

deemed not disabled, and the inquiry ends. Id. Finally, at step five, the ALJ must

consider the claimant’s RFC, age, education, and work experience to determine whether

the claimant “can make an adjustment to other work.” Id. If she can make an adjustment,

she is deemed not disabled. If she cannot, she is deemed disabled.

       The claimant bears both “the general burden of proving that . . . she has a disability

within the meaning of the Act” and the specific “burden of proving . . . her case at steps

one through four of the sequential five-step framework.” Burgess, 537 F.3d at 128

(internal quotation marks and citation omitted).

I.     RFC Finding

       Koch argues that the ALJ’s finding that she retained the RFC “to perform the full

range of sedentary work as defined in 20 C.F.R. [§] 404.1567(a)” was not supported by

substantial evidence because the ALJ misstated the record and failed to apply the proper

legal standards. We disagree. The ALJ found that Koch could “lift 10 pounds frequently,



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bend at the waist, squat, bend at the knees, . . . and grocery shop[] with her husband,” J.A.

13, findings that are amply supported by the record evidence. To the extent that Koch’s

actual testimony was that she could lift 10 pounds “repeatedly” rather than “frequently,”

such a minor linguistic variation in the ALJ’s summary of that testimony provides no

basis for concluding that the ALJ’s findings were not supported by substantial evidence.

Moreover, we reject Koch’s argument that the ALJ committed reversible error by merely

referencing the findings of a state agency reviewer. While “[i]t is indeed an error to treat

a disability analyst as a doctor,” Tankisi v. Comm’r of Social Sec., 521 F. App’x 29, 34

(2d Cir. 2013), the ALJ’s error was harmless because his RFC finding is supported by

substantial evidence.

II.    Failure to Consult a Vocational Expert

       Koch next argues that the district court erred by not consulting a vocational expert

in this case, and relying instead on the Medical-Vocational Rules to direct a finding of not

disabled. Here, however, the ALJ found that Koch could not perform her past work as a

cashier, day care worker, and sales clerk, and therefore continued the evaluation at step

five of the sequential evaluation process. The ALJ then considered several vocational

factors along with his RFC finding and concluded that under Medical-Vocation Rule

201.2, Koch was not disabled. In such circumstances, the ALJ was not required to

consult vocational evidence. See 20 C.F.R. § 404.1520(g).




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III.   Credibility Assessment

       Finally, Koch argues that the ALJ did not properly evaluate her subjective

complaints. Although the ALJ found that Koch’s “medically determinable impairments

could reasonably be expected to cause the alleged symptoms,” J.A. 14, the ALJ

concluded that Koch’s complaints “suggest[ed] a greater severity of symptoms than can

be shown by the objective medical evidence alone,” id. Substantial evidence, including

Koch’s own testimony supports that finding, which, in any event, was within the purview

of the ALJ to make. See 20 C.F.R. § 404.1529(b), (c). For example, Koch testified

before the ALJ that she gets a “really bad headache,” meaning a headache that she would

rate a six or seven on the pain scale every two months, and less severe headaches rated

two or three on the pain scale, two or three times per month. She further acknowledged,

however, that medications help resolve the headaches as they come. When coupled with

the testimony regarding the frequency with which Koch used and refilled her other

medications, including muscle relaxers for back pain, that evidence supports the ALJ’s

conclusion that Koch’s account of the intensity and effects of her pain on her functional

capacity was not credible.

       We have reviewed Koch’s remaining arguments and find them to be without merit.

For the foregoing reasons, the judgment of district court is AFFIRMED.


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




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