    16-1042-cv
    Monroe 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 ASUMMARY ORDER@). A PARTY CITING TO 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 18th day of January, two thousand seventeen.

    PRESENT:
                         PETER W. HALL,
                         CHRISTOPHER F. DRONEY,
                                     Circuit Judges,
                         J. PAUL OETKEN,*
                                     District Judge.

    _____________________________________

    CINDY MONROE,

                                  Plaintiff-Appellant,

                         v.                                                                         16-1042-cv

    COMMISSIONER OF SOCIAL SECURITY,

                                  Defendant-Appellee,

    _____________________________________

    For Appellant:                                                      SCOT G. MILLER, Esq., Coughlin & Gerhart,
                                                                        LLP, Binghamton, NY.



    *   Judge J. Paul Oetken, of the United States District Court for the Southern District of New York, sitting by designation.
For Appellee:                                             PETER W. JEWETT, Special Assistant United
                                                          States Attorney, for Richard S. Hartunian,
                                                          United States Attorney for the Northern
                                                          District of New York.

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

New York (D’Agostino, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

        Plaintiff-Appellant Cindy Monroe appeals the decision of the district court affirming the

Commissioner of Social Security’s denial of her application for disability insurance benefits. Monroe

protectively filed an application for disability insurance benefits, claiming inability to work as a result

of her bipolar disorder. Following exhaustion of administrative procedures, the district court

affirmed the Administrative Law Judge’s (“ALJ”) decision denying benefits because Monroe

maintained a residual functional capacity (“RFC”) to “perform a full range of work at all exertional

levels.” On appeal, Monroe argues (1) that the ALJ improperly failed to assign “controlling weight”

to Dr. Wolkoff’s medical opinion under the “treating physician” rule and (2) that the ALJ’s RFC

determination is not supported by “substantial evidence.” We assume the parties’ familiarity with

the underlying facts, procedural history, and issues 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.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)

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

“[I]t is not our function to determine de novo whether [a plaintiff] is disabled.” Brault v. Soc. Sec.

                                                     2
Admin., Comm’r, 683 F.3d 443, 447 (2d Cir.2012) (per curiam) (quoting Pratts v. Chater, 94 F.3d 34, 37

(2d Cir. 1996)).

    I.      “Treating Physician” Rule

         Monroe asserts that the ALJ failed to give “controlling weight” to Dr. Wolkoff’s medical

opinion as required by the Social Security Administration’s “treating physician” rule. See Shaw v.

Charter, 221 F.3d 126, 134 (2d Cir. 2000) (the “treating physician” rule mandates that the medical

opinion of a claimant’s treating physician is given controlling weight if it is well supported by

medical findings and not inconsistent with other substantial record evidence); see also 20 C.F.R.

§ 404.1527(c)(2) (“If we find that a treating source’s opinion on the issue(s) of the nature and

severity of [the claimant’s] impairment(s) is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your

case record, we will give it controlling weight.”). “While the opinions of a treating physician deserve

special respect, they need not be given controlling weight where they are contradicted by other

substantial evidence in the record.” Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (internal

citations omitted); accord Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (“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 . . . the treating

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

(internal citations omitted)). “Genuine conflicts in the medical evidence are for the Commissioner

to resolve.” Veino, 312 F.3d at 588.

         When controlling weight is not given to a treating physician’s assessment, the ALJ must

consider the following factors to determine the weight to give the opinion: (1) the length of

treatment relationship and frequency of examination; (2) the nature and extent of the treatment

relationship; (3) the evidence in support of the opinion; (4) the opinion’s consistency with the record
                                                   3
as a whole; (5) whether the opinion is that of a specialist; and (6) any other relevant factors. 20

C.F.R. § 404.1527(c). The ALJ must then “comprehensively set forth [her] reasons for the weight

assigned to a treating physician’s opinion.” Burgess, 537 F.3d at 129.

         Here, the administrative record demonstrates that the ALJ’s decision not to give controlling

weight to Dr. Wolkoff’s opinion under the “treating physician” rule was proper considering the

substantial evidence contradicting Dr. Wolkoff’s assessment. Not only did the ALJ find that Dr.

Wolkoff’s medical source statement contained internal inconsistencies, but she also determined that

his treatment notes contradicted his RFC assessment.1 While Dr. Wolkoff’s RFC assessment said

that Monroe would be “off task” between thirty and fifty percent of the time during a typical

workday due to her bipolar disorder, it also described Monroe’s mood as “stable most of [the] time.”

Moreover, although Dr. Wolkoff’s treatment notes indicate that Monroe’s mood was anxious and

sad on a number of occasions, the ALJ found his notes more frequently included evaluations

describing Monroe’s mood as “stable” or “good” and not suicidal. In fact, the treatment notes

indicate that during one evaluation, Monroe even expressed that she loved life. Finally, in assessing

Dr. Wolkoff’s opinion that Monroe had little ability to deal with stress or the public and was limited

in behaving in a stable manner in social situations, the ALJ also determined that the finding was

refuted by the fact that Monroe had engaged in a range of recreational activities around the same

time, including snowmobiling trips to Ontario and Quebec, horseback riding, four-wheeling, and

multiple vacation cruises.




1 A medical source statement is “[a] statement about what [the claimant] can still do despite [her] impairment(s) based on
the acceptable medical source’s findings on the factors under paragraphs (b)(1) through (b)(5) of [§ 404.1513] (except in
statutory blindness claims).” 20 C.F.R. § 404.1513. An RFC assessment is used to determine if a claimant can do past
relevant work, when the claimant’s impairment does not meet or equal a listed impairment under the Commissioner’s
regulations. See id. § 404.1520(e). “[R]esidual functional capacity [is] based on all the relevant medical and other
evidence in [the claimant’s] case.” Id.

                                                            4
    The ALJ comprehensively explained her reasons for discounting Dr. Wolkoff’s medical source

statement; in so doing, she complied with the dictates of the treating physician rule. See Burgess, 537

F.3d at 129. While Dr. Wolkoff’s medical source statement is supported by some evidence, the ALJ’s

decision to disregard his opinion is nevertheless substantially supported by the record. The ALJ did

not impermissibly “substitute [her] own expertise or view of the medical proof for the treating

physician’s opinion.” Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015). Rather, the ALJ rejected Dr.

Wolkoff’s opinion because she found it was contrary to his own treatment notes. As did the district

court, we defer to the ALJ’s well-supported determination. See Veino, 312 F.3d at 588 (“Genuine

conflicts in the medical evidence are for the Commissioner to resolve.”).

    II.      RFC Determination

    Monroe makes the related argument that the ALJ’s RFC determination is not supported by

substantial evidence. She specifically contends that, because the ALJ rejected Dr. Wolkoff’s opinion,

there was no competent medical opinion that supported the ALJ’s RFC determination. Where,

however, “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)

(summary order), a medical source statement or formal medical opinion is not necessarily required,

see id.; cf Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013) (summary order) (upholding ALJ’s RFC

determination where he “rejected” physician’s opinion but relied on physician’s findings and

treatment notes).

          Here, although the ALJ ultimately rejected Dr. Wolkoff’s medical assessment, she relied on

Dr. Wolkoff’s treatment notes dating back before the alleged onset date. Not only do Dr. Wolkoff’s

notes include descriptions of Monroe’s symptoms, but they also provide contemporaneous medical

assessments of Monroe’s mood, energy, affect, and other characteristics relevant to her ability to

perform sustained gainful activity. The ALJ also considered Dr. Wolkoff’s well-documented notes
                                                  5
relating to Monroe’s social activities relevant to her functional capacity—such as snowmobile trips,

horseback riding, and going on multiple cruise vacations. Because the ALJ reached her RFC

determination based on Dr. Wolkoff’s contemporaneous treatment notes—while at the same time

rejecting his post hoc medical opinion ostensibly based on the observations memorialized in those

notes—that determination was adequately supported by more than a mere scintilla of evidence. See

Tankisi, 521 F. App’x at 34 (affirming ALJ’s RFC determination based on extensive medical record

despite the fact that the record did not include formal opinions as to claimant’s RFC); cf. 20 C.F.R.

§ 1527(d)(2) (“Although we consider opinions from medical sources on issues such . . . [as a

claimant’s] residual functional capacity . . . the final responsibility for deciding [this] issue[] is

reserved to the Commissioner.”).

        Likewise, because the ALJ based its RFC determination on Dr. Wolkoff’s years’ worth of

treatment notes, it was not necessary for the ALJ to seek additional medical information regarding

Monroe’s RFC. See Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (“[W]here there are no

obvious gaps in the administrative record, and where the ALJ already possesses a complete medical

history, the ALJ is under no obligation to seek additional information.” (internal quotation marks

omitted)); see also Pellam, 508 F. App’x at 90 (2d. Cir. 2013) (summary order) (concluding that ALJ

had no obligation to supplement record by acquiring additional medical information where ALJ had

all of the claimant’s treating physician’s treatment notes and consulting examining physician’s

opinion supported ALJ’s assessment of RFC).

        Finally, we find no merit in Monroe’s argument that the ALJ committed reversible error by

concluding that the state agency psychologist’s opinion was “inconsistent” with that of Dr.

Wolkoff’s when, in fact, the state psychologist found there was “insufficient evidence” to conclude

whether a mental impairment existed. As also concluded by the district court, we agree that any

such error was harmless, since Monroe has not identified any prejudice and the record establishes
                                                6
that the error did not affect the ALJ’s decision. Cf. Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)

(“Where application of the correct legal principles to the record could lead only to the same

conclusion, there is no need to require agency reconsideration.” (internal quotations marks and

alterations omitted)). The ALJ’s decision to give little weight to Dr. Wolkoff’s RFC assessment is

grounded in the substantial evidence contradicting his opinion; the ALJ’s decision does not rest on

the misconception that Dr. Wolkoff’s opinion conflicts with that of the state psychologist.

        For all the foregoing reasons, the district court’s order affirming the ALJ’s decision denying

Monroe’s application for disability insurance benefits is AFFIRMED.



                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




                                                   7
