13-2225-cv
Penfield 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 29th day of April, two thousand fourteen.

Present:
                     RALPH K. WINTER,
                     BARRINGTON D. PARKER,
                     PETER W. HALL,
                               Circuit Judges.

____________________________________________________

SHARON PENFIELD,

                          Plaintiff-Appellant,

                     v.                                                      No. 13-2225-cv

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,

                 Defendant-Appellee.*
____________________________________________________

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




*   The Clerk of Court is respectfully directed to amend the official caption as set forth above.

                                                   1
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),
                      for Richard S. Hartunian, United States Attorney for the
                      Northern District of New York, Albany, NY.
____________________________________________________

       Appeal from a judgment of the United States District Court for the Northern District

of New York (Sharpe, C.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

       Sharon Penfield appeals from the district court’s April 16, 2013 judgment affirming

the decision of the Commissioner of Social Security to deny Penfield social security disability

benefits. We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the specific issues on appeal.

       In deciding an appeal from a denial of disability benefits, 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.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal

quotation marks omitted). Substantial evidence requires “more than a mere scintilla” of

evidence; “[i]t means such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion[,] . . . [b]ut it is still a very deferential standard of review – even more

so than the ‘clearly erroneous’ standard.” Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443,

448-49 (2d Cir. 2012) (per curiam) (internal citations, emphases, and quotation marks

omitted).



                                                  2
       Penfield argues that the Administrative Law Judge (“ALJ”) who heard her case erred

in his residual functional capacity (“RFC”) determination that, despite her impairments, she

retained the ability to perform a full range of sedentary work between November 2000 and

December 31, 2005 (the “relevant period”).1 First, the ALJ afforded the March 2010

opinion of Dr. Kamlesh Desai “[l]ittle weight” because, inter alia, “[t]he severity [of Penfield’s

impairments] reported by this treating physician . . . [wa]s inconsistent with the medical

evidence for the period at issue.” “Although the treating physician rule generally requires

deference to the medical opinion of a claimant’s treating physician, the opinion of the

treating physician is not afforded controlling weight where, as here, the treating physician

issued opinions that are not consistent with other substantial evidence in the record . . ..”

Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (internal citation omitted); see also 20

C.F.R. § 404.1527(c)(2). Dr. Desai’s March 2010 opinion that Penfield could not sit for

more than six hours or stand for more than two hours out of an eight-hour work day during

the November 2000 to December 2005 time period was at odds not only with his own

September 2002 opinion describing her “work tolerance” as “full time,” but also with the

substantial medical evidence from that relevant period. That evidence generally indicated

that although Penfield suffered from several musculoskeletal conditions, those conditions


1
  The applicable regulations explain that “sedentary work” involves “lifting no more than 10
pounds at a time,” “sitting,” and a “certain amount of walking or standing.” 20 C.F.R.
§ 404.1567(a). The Social Security Administration has further explained that at the sedentary
level of exertion, periods of standing or walking should generally total no more than about 2
hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an
8-hour workday. See Determining Capability To Do Other Work—Implications of a Residual
Functional Capacity for Less Than a Full Range of Sedentary Work, 61 Fed. Reg. 34478, 34480
(Social Security Admin. July 2, 1996).

                                                 3
prevented her only from “crawling,” “walking stairs,” and repetitive activities involving

“bending,” “lifting,” or “twisting.” As the ALJ correctly observed, none of these limitations

“preclude [Penfield’s] engagement in at least sedentary exertion.” Moreover, this medical

evidence supported the opinion of Dr. John Buckner – a one-time medical examiner – thus

justifying the greater weight the ALJ afforded Dr. Buckner’s opinion.

       Second, although the ALJ was “required to take [Penfield’s] reports of pain and other

limitations into account” when making the RFC determination, he was “not required to

accept [her] subjective complaints without question.” Genier v. Astrue, 606 F.3d 46, 49 (2d

Cir. 2010) (internal citations omitted). Instead, the ALJ had discretion to weigh the

credibility of Penfield’s testimony “in light of the other evidence in the record.” Id. (citation

omitted). Here, the ALJ did just that. After extensively detailing the medical evidence and

Penfield’s testimony, the ALJ afforded her statements only “partial credibility” because “they

were inconsistent with the objective evidence in the record.” Our independent review of the

administrative record supports the ALJ’s credibility determination. For example, while

Penfield testified that her constant pain prevented her from standing for more than five

minutes without leaning against something or dressing herself without assistance, her

treating physician consistently prescribed a “conservative treatment” regimen that consisted

of “walking[,] home exercise program[s],” and “gentle stretching.” In addition, Penfield’s

testimony that she could not sit for more than five minutes at a time during the relevant

period and that the combination of her pain and the medications she took for that pain

made her unable to concentrate is inconsistent with the fact that, during that same time, she




                                                4
successfully completed a computer training course that required her to take four-hour classes

three days per week.

       We have considered all of Penfield’s remaining arguments and find that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




                                             5
