         11-563-cv
         Zokaitis v. Social Security Administration

                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of February, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                         Circuit Judges
 9                ROSLYNN R. MAUSKOPF,*
10                         District Judge.
11
12
13
14       TAMMY ZOKAITIS,
15
16                                     Plaintiff-Appellant,
17
18                      v.                                           11-563-cv
19
20       SOCIAL SECURITY ADMINISTRATION,
21       COMMISSIONER, MICHAEL J. ASTRUE,
22
23                                     Defendant-Appellee.
24
25
26
27
28
29

                *
                The Honorable Roslynn R. Mauskopf, of the United States
         District Court for the Eastern District of New York, sitting by
         designation.
 1   FOR APPELLANT:    MITCHELL L. PEARL (Cara L. Cookson, on
 2                     the brief), Langrock Sperry & Wool, LLP,
 3                     Middlebury, VT
 4
 5   FOR APPELLEE:     TIMOTHY LANDRY, Special Assistant United
 6                     States Attorney (Carol L. Shea, Chief,
 7                     Civil Division, on the brief), for
 8                     Tristram J. Coffin, United States
 9                     Attorney for the District of Vermont,
10                     Burlington, VT
11
12
13        Appeal from the United States District Court for the
14   District of Vermont (Murtha, J.).
15
16       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17   AND DECREED that the judgment of the United States District

18   Court for the District of Vermont is AFFIRMED.

19       Appellant appeals from the final judgment of the United

20   States District Court for the District of Vermont (Murtha,

21   J.), which affirmed the decision of the Commissioner of the

22   Social Security Administration ("Commissioner") denying

23   Appellant disability benefits under the Social Security Act.

24   We assume the parties’ familiarity with the underlying

25   facts, the procedural history, and the issues presented for

26   review.

27       Appellant argues that the Commissioner’s decision is

28   not supported by substantial evidence in the record.

29   Specifically, she argues that the Commissioner erred by

30   failing to properly evaluate: (1) Appellant’s pressure

                                  2
1    urticaria; (2) Appellant’s credibility; (3) the opinions of

2    Appellant’s nurse and social worker; (4) Appellant’s

3    capacity to return to her former job as a cashier; and (5)

4    the state agency consulting doctors’ opinions.    On review,

5    we must set aside the Commissioner’s determination if it “is

6    based upon legal error or not supported by substantial

7    evidence.”    Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.

8    1982) (per curiam).

9        First, the Commissioner did not err in assessing

10   Appellant’s pressure urticaria by not including a

11   manipulative limitation in her residual functional capacity

12   (“RFC”) concerning the use of her hands.   None of

13   Appellant’s treating physicians ever concluded that her

14   urticaria prevented her from using her hands or specifically

15   opined as to how her symptoms of urticaria affected her

16   ability to work.   Similarly, none of her physicians ever

17   conducted any objective tests to assess whether Appellant’s

18   condition prevented her from doing light work.    In fact, the

19   medical evidence demonstrates that Appellant’s skin

20   condition can be, and has been, controlled with appropriate

21   medication.

22


                                    3
1        Second, we find no error in the Commissioner’s

2    assessment of Appellant’s credibility.    Many of Appellant’s

3    statements concerning the intensity, persistence and

4    limiting effects of her symptoms were inconsistent with

5    other information in the record.    We disagree with

6    Appellant’s contention that the Commissioner

7    mischaracterized the record in evaluating Appellant’s

8    credibility.    There was substantial evidence in the record

9    to conclude that Appellant engaged in a broad range of daily

10   activities.    Indeed, Appellant’s own Function Report states

11   that she is able to "[p]ick up/[d]rop off son at headstart .

12   . . take care of baby and clean house.    Go to appointments"

13   and "[h]elp with homework . . . or school project[s]."    She

14   also states that she is able to prepare meals daily.

15       Third, we find no error in the Commissioner’s decision

16   to give little weight to the Treatment Source Statements of

17   Nancy Driscoll and Janine Small (Appellant’s nurse and

18   social worker respectively) based on the factors set forth

19   in 20 C.F.R. § 416.927.    Both Treatment Source Statements

20   have significant inconsistencies with the findings in each

21   source’s progress notes.    For instance, Driscoll concluded

22   in her Treatment Source Statement that Appellant had



                                    4
1    “extreme” difficulties in maintaining social functioning.

2    But in the overwhelming majority of her progress notes,

3    Driscoll concluded that Appellant did not have serious

4    impairments.   Similarly, although Small concluded in her

5    Treatment Source Statement that Appellant had extreme

6    difficulties in social functioning and marked difficulties

7    in maintaining concentration, persistence or pace, Small

8    consistently assigned Appellant a Global Assessment

9    Functioning (“GAF”) score of 55, which indicates only

10   “moderate difficulty” in those functions.

11       Fourth, the Commissioner’s conclusion that Appellant

12   can return to her past work as a cashier is supported by

13   substantial evidence.   Appellant’s argument that her

14   pressure urticaria prevents her from working with her hands

15   and returning to her job as a cashier is belied by the fact

16   that she worked as a cashier for over two years after the

17   onset of her urticarial symptoms.   During this time, she

18   admitted that she was handling and grabbing objects for up

19   to eight hours per day and also occasionally carrying heavy

20   objects that weighed up to twenty pounds.   Moreover,

21   Appellant’s psychological limitations do not prevent her

22   from returning to work as a cashier.   Even accepting


                                   5
1    Appellant’s interpretation of the medical records, she is

2    only limited from “intense” interaction with large or

3    unfamiliar groups of people, which is not the hallmark of

4    being a cashier.

5        Finally, we need not consider Appellant’s argument that

6    the Commissioner erred in giving significant weight to the

7    opinions of the non-examining state agency medical

8    consultants, Drs. Reilly and Cook.   This issue was never

9    raised below, and it is well settled that we generally “will

10   not consider an issue raised for the first time on appeal.”

11   Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.

12   2006) (internal quotation marks and citation omitted).

13       We have considered Appellant’s remaining arguments and,

14   after a thorough review of the record, find them to be

15   without merit.

16       For the foregoing reasons, the judgment of the district

17   court is hereby AFFIRMED.
18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21




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