        12-3013
        Reices-Colon 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 TO 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 Thurgood Marshall United
 3      States Courthouse, 40 Foley Square, in the City of New York,
 4      on the 2nd day of May, two thousand thirteen.
 5
 6      PRESENT:
 7               DENNIS JACOBS,
 8                    Chief Judge,
 9               ROSEMARY S. POOLER,
10               RICHARD C. WESLEY,
11                    Circuit Judges.
12      _____________________________________
13
14      CYNTHIA REICES-COLON,
15
16                        Plaintiff-Appellant,
17
18                   v.                           12-3013
19
20      MICHAEL J. ASTRUE, Commissioner
21      of Social Security,
22
23                  Defendant-Appellee.
24      _____________________________________
25
26
27
 1   FOR PLAINTIFF-APPELLANT:   IDA M. COMERFORD, Law Offices of
 2                              Kenneth Hiller, Amherst, NY.
 3
 4   FOR DEFENDANT-APPELLEE:    THOMAS C. GRAY, Special
 5                              Assistant United States Attorney
 6                              (Stephen P. Conte, of counsel)
 7                              for William J. Hochul, Jr.,
 8                              United States Attorney for the
 9                              Western District of New York,
10                              New York, NY.
11
12        Appeal from a judgment of the United States District
13   Court for the Western District of New York (Larimer, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
16   AND DECREED that the judgment is AFFIRMED.
17
18        Appellant Cynthia Reices-Colon appeals from the
19   district court’s grant of Commissioner Astrue’s motion for
20   judgment on the pleadings. We assume the parties’
21   familiarity with the underlying facts, the procedural
22   history of the case, and the issues on appeal.
23
24        “On appeal, we conduct a plenary review of the
25   administrative record to determine if there is substantial
26   evidence, considering the record as a whole, to support the
27   Commissioner’s decision and if the correct legal standards
28   have been applied. Substantial evidence means more than a
29   mere scintilla. It means such relevant evidence as a
30   reasonable mind might accept as adequate to support a
31   conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.
32   2009) (internal citation omitted).
33
34       1.   The Step Two Assessment
35
36        Reices-Colon first argues that the ALJ failed to
37   properly perform step two of the five-step sequential
38   evaluation process that this Court has outlined for Social
39   Security claims. See Perez v. Chater, 77 F.3d 41, 46 (2d
40   Cir. 1996). She claims that the ALJ’s step two analysis was
41   deficient because the ALJ excluded her anxiety disorder and
42   panic disorder from his review.
43
44

                                  2
 1        However, Reices-Colon failed to preserve her argument
 2   in the district court. “At least where the claimant is
 3   represented by counsel before the district court, the
 4   claimant must present the relevant legal arguments in that
 5   forum in order to preserve them for appellate review.”
 6   Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). By
 7   Reices-Colon’s own admission, that did not happen.
 8
 9        Even if this argument had not been waived, any error
10   would be harmless. At step two, the ALJ identified other
11   “severe impairments,” including Reices-Colon’s “back
12   problem, migraine headaches, depression, and post traumatic
13   stress disorder,” and therefore proceeded with the
14   subsequent steps. A15. And, in those subsequent steps, the
15   ALJ specifically considered her anxiety and panic attacks.
16   A17-18. Because these conditions were considered during the
17   subsequent steps, any error was harmless. See Zabala v.
18   Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (finding harmless
19   error where the ALJ’s consideration of a doctor’s report
20   would not have changed the ALJ’s adverse determination).
21
22       2.   Reices-Colon’s Ability to Return to Work
23
24        Reices-Colon agues that the ALJ made errors of law and
25   fact in determining that she was able to return to her past
26   jobs as a cashier and jeweler. Reices-Colon did not present
27   this argument before the district court, and it is therefore
28   waived. Poupore, 566 F.3d at 306.
29
30        Even if the argument had not been waived, it would
31   fail. A disability claimant bears the burden of proving
32   that she cannot return to her past relevant work, either as
33   it is performed in the national economy, or as she actually
34   performed it. 20 C.F.R. §§ 404.1520(f), 416.920(f); see
35   Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995) (denying a
36   claim where the plaintiff retained the ability to perform
37   her former job as a seamstress). Reices-Colon’s argument
38   that working as a jeweler requires years of training that
39   she lacked is belied by her own “as performed” experience.
40   The record shows that she was training to be a jeweler
41   supervisor at the time that she stopped her work. The ALJ
42   could find that, if she was skilled enough to supervise her
43   colleagues, she had sufficient expertise to perform the work
44   herself.

                                  3
 1       3.   The Administrative Record
 2
 3        Reices-Colon next argues that the ALJ misinterpreted
 4   the record, and that he should have sought to supplement the
 5   record with additional files from Dr. Cheema. Despite
 6   Reices-Colon’s suggestion that the ALJ had no substantive
 7   basis for finding that her symptoms had improved, four
 8   pieces of evidence in the record supported such a finding.
 9   See A362-64 (treatment notes dated November 2006 indicating
10   that Reices-Colon’s chest pains had “improved,” and that
11   Effexor “seems to be helping”); A298 (treatment notes dated
12   February 9, 2007 indicating that Reices-Colon’s symptoms had
13   shown “some improvement” and that she was “not crying as
14   much”); A158 (treatment notes dated April 6, 2007 indicating
15   that Reices-Colon’s “mood improved on Effexor”); A505
16   (physical therapy notes dated March 2008 indicating that
17   Reices-Colon was “feeling better” and was improving with
18   treatment). Plus, Dr. Ransom (the consultative examiner for
19   Social Security) concluded that Reices-Colon had a “fair to
20   good” prognosis “with continued treatment.” A287.
21   Substantial evidence therefore supports the ALJ’s finding
22   that Reices-Colon showed improvement with treatment.
23
24        Reices-Colon’s record supplementation argument is
25   similarly baseless. She identifies no specific record that
26   was missing, much less explains how it would have affected
27   her case. We therefore find no error in the ALJ’s
28   development of the record.
29
30        We have considered all of Reices-Colon’s remaining
31   arguments and find them to be without merit. Accordingly,
32   the judgment of the district court is hereby AFFIRMED.
33
34                               FOR THE COURT:
35                               Catherine O’Hagan Wolfe, Clerk




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