10-4351-cv
Roma 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
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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 19th day
of January, two thousand twelve.

Present:
         ROBERT A. KATZMANN,
         BARRINGTON D. PARKER,
                     Circuit Judges.1
________________________________________________

WILLIAM C. ROMA,

           Plaintiff-Appellant,

                  v.                                            No. 10-4351-cv

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL
SECURITY,

         Defendant-Appellee.
________________________________________________


For Plaintiff-Appellant:                 ALLAN B. RUBENSTEIN, New Haven, CT.



       1
         The Honorable Robert D. Sack, who had originally been assigned to this panel, recused
himself. The remaining two members of the panel decide the matter pursuant to Second Circuit
Internal Operating Procedure E(b).
For Defendant-Appellee:                   ANN M. NEVINS, Assistant United States Attorney
                                          (Sandra S. Glover, Assistant United States Attorney, on
                                          the brief), for David B. Fein, United States Attorney for
                                          the District of Connecticut.


       Appeal from the United States District Court for the District of Connecticut (Eginton, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiff-Appellant William C. Roma appeals from a judgment of the United States

District Court for the District of Connecticut (Eginton, J.) entered on September 3, 2010,

affirming the determination of an Administrative Law Judge (“ALJ”) that Roma was not

disabled and therefore ineligible for disability insurance benefits under the Social Security Act.

On appeal, Roma contends that the ALJ’s determination was not supported by substantial

evidence because the ALJ (1) erroneously failed to accord controlling weight to the medical

opinions of Roma’s treating psychiatrist and pain specialist, (2) did not follow SSR 85-15 when

he evaluated stress as a factor in his decision, and (3) misused the medical vocational guidelines

when he found that there were jobs Roma could perform in the national economy. We assume

the parties’ familiarity with the underlying facts and procedural history of this case.

        “In reviewing the denial of Social Security benefits by the Commissioner, our focus is

not so much on the district court’s ruling as it is on the administrative ruling.” Rosa v. Callahan,

168 F.3d 72, 77 (2d Cir. 1999) (internal quotation marks and brackets omitted). “It is not our

function to determine de novo whether [a plaintiff] is disabled.” Pratts v. Chater, 94 F.3d 34, 37

(2d Cir. 1996). Instead, “we set aside an ALJ’s decision only where it is based upon legal error

or is not supported by substantial evidence.” Rosa, 168 F.3d at 77 (internal quotation marks and


                                                  2
brackets omitted). Substantial evidence is “more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Pratts, 94

F.3d at 37 (internal quotation marks omitted). “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. We may not properly affirm an administrative action on grounds different from those

considered by the agency.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal

quotation marks and citations omitted).

        An individual is “considered to be disabled” if “he is unable to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which

. . . has lasted or can be expected to last for a continuous period of not less than twelve months.”

42 U.S.C. § 1382c(a)(3)(A). Regulations enacted by the Social Security Administration set

forth a five-step analysis for evaluating whether an individual’s impairment meets this definition

of disability.

        The first step in the process requires the Secretary to ascertain whether the
        claimant is currently engaged in “substantial gainful activity.” . . . If the applicant
        is not engaged in such activity, the second step requires a decision whether the
        claimant’s medical condition or impairment is “severe,” i.e., one that significantly
        limits his ability to work. . . .

                  If the impairment is severe, step three requires a determination of whether
        the damage is of sufficient gravity to meet or equal the definitions found in the
        Listing of Impairments (the “Listings”). See 20 C.F.R. Part 404, Subpt. P, App. 1
        (1987). . . . If, however, a claimant has a severe impairment that is not considered
        per se disabling under the Listings, step four compels the Secretary to ascertain
        his residual functional capacity (“RFC”), a measure of employment capabilities. .
        . . If the applicant is unable to perform his past work, he is then evaluated at the
        fifth step in the process, which requires a finding of whether, given his functional
        ability (RFC), age, education and past work experience, he could perform other
        jobs that exist in the national economy.

State of N.Y. v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).

                                                  3
       We begin with Roma’s contention that the ALJ erroneously failed to accord controlling

weight to the medical opinions of two treating physicians: Dr. Mitchell Pyrwes, a physiatrist and

pain management specialist, and Dr. Mark Ligorski, a psychiatrist. A treating physician’s

opinion is accorded “controlling weight” when it is “well[]supported by medically acceptable

clinical and laboratory techniques and is not inconsistent with the other substantial [record]

evidence.” 20 C.F.R. § 404.1527(d)(2). Nevertheless, “[a] treating physician’s statement that

the claimant is disabled cannot itself be determinative.” See Snell v. Apfel, 177 F.3d 128, 133

(2d Cir. 1999). It is the Commissioner who is “responsible for making the determination or

decision about whether [the claimant] meet[s] the statutory definition of disability.” 20 C.F.R. §

404.1527(e)(1). Moreover, the deference accorded to a treating physician’s opinion may be

reduced upon consideration of other factors, including the length and nature of the treating

doctor’s relationship with the patient, the extent to which the medical evidence supports the

doctor’s opinion, whether the doctor is a specialist, the consistency of the opinion with the rest

of the medical record, and any other factors “which tend to support or contradict the opinion.”

20 C.F.R. § 404.1527(d)(2)(i)-(ii) and (d)(3)-(6); see also 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, as here, the treating physician issued opinions that are not consistent

with other substantial evidence in the record, such as the opinions of other medical experts.”)

(internal citation omitted).

       Upon our review of the record, we conclude that the ALJ properly declined to accord

controlling weight to the opinion of Dr. Pyrwes. As an initial matter, Dr. Prywes’s assertion that


                                                 4
Roma “is permanently disabled,” App. 257, cannot itself be determinative because it is the

responsibility of the Commissioner to make the ultimate decision as to whether the claimant

meets the statutory definition of “disabled.” See 20 C.F.R. § 404.1527(e)(1). Moreover, Dr.

Pyrwes’s assessment was inconsistent in material respects with other substantial evidence. For

example, Dr. Sekhar Chirunomula, a state agency physician, found that key RFC and clinical

signs were relatively normal or mild. App. 300-301. He was “unable to extract [from Roma]

any significant cognitive dysfunction,” and his physical examination revealed “well-preserved

muscle tone, grip strength, balance, dexterity, and gait.” Id. at 301. Dr. Chirunomula’s findings

were consistent with Dr. Katharine Tracy’s Residual Functional Capacity Assessment, which

concluded that Roma could occasionally lift 20 pounds, frequently lift 10 pounds, stand or walk

for 6 hours in an 8-hour workday, sit for 6 hours in an 8-hour workday, and perform unlimited

pushing and pulling, id. at 245, as well as Dr. Patricia Mitchell’s conclusion that Roma’s

“[o]verall cognitive functioning was generally in the average range,” id. at 160. Moreover, Dr.

Prywes’s opinion conflicted with Roma’s own testimony that he could perform a reasonably

broad range of light, non-stressful activities at or near his home, including driving, reading,

sending email, and independently performing the activities of daily living while his wife worked

full-time. Id. at 23. Accordingly, the ALJ was not required to defer to Dr. Prywes’s opinion

that Roma was unable to “undertake any kind of gainful employment.” Id. at 257.

       Roma’s related argument, that the ALJ erred by failing to consider the appropriate factors

under 20 C.F.R. §404.1527(d) in rejecting the opinion of Dr. Pyrwes, is similarly without merit.

The ALJ considered the length of the treatment relationship with Dr. Prywes, noting that the

treatment did not include the years when Roma was working after his motor vehicle accident.


                                                 5
He found that Dr. Prywes’s opinion was not consistent with the record as a whole, concluding

that “[t]he diagnostic tests, such as repeated MRI’s [sic], CT scans, muscle testing, IQ tests, and

neurological signs, simply [did] not support disability from all cognitive and exertional

activities.” App. 24. He further indicated that the supportability of Dr. Prywes’s opinion was

doubtful as it was based largely upon Roma’s subjective responses, which were not themselves

entirely credible for the reasons explained in the ALJ’s decision. See id. at 23-25; see generally

20 C.F.R. § 404.1527(d)(3) (“The more a medical source presents relevant evidence to support

an opinion, particularly medical signs and laboratory findings, the more weight we will give that

opinion.”). However, the ALJ did credit Dr. Prywes’s opinion to the extent the ALJ determined

that Roma could not perform his past relevant work as an appraiser. App. 23-24.

       Turning to the opinion of Dr. Ligorski, the ALJ specifically stated that the opinion of Dr.

Ligorski, as Roma’s treating psychiatrist, was “entitled to extra weight.” App. 23. Moreover,

the ALJ accepted the vast majority of Dr. Ligorski’s conclusions, including his determination

that Roma had a history of severe depression and anxiety. Id. at 26 (“[T]he claimant has a

history of depression and anxiety which are ‘severe’ per Dr. Ligorski’s reports.”) (internal

citation omitted). Thus, while the ALJ did not specifically state that he was according

“controlling weight” to Dr. Ligorski’s opinion, Roma’s assertion that the ALJ “rejected” Dr.

Ligorski’s opinion is simply inaccurate. See Pl.’s Br. at 22. Moreover, to the extent the ALJ

discounted Dr. Ligorski’s opinion, if at all, his decision to do so was supported by other

substantial record evidence. For example, the ALJ’s determination that Roma’s social

limitations did not render him totally disabled was supported by evidence that, in the context of

numerous examinations, Roma demonstrated a stable affect, memory for details, and willingness


                                                 6
to cooperate with questioning. App. 28, 162-220, 300-301. Similarly, the ALJ’s

characterization of Roma’s concentration impairment as “moderate” was supported by other

credible evidence in the record, including evidence that Roma could sit for several hours of

neuropsychological evaluation, id. at 158-61; evidence that Roma could participate in a lengthy

vocational assessment by litigation consultants, id. at 162-220; evidence that Roma was able to

attend and participate appropriately with numerous medical doctors and evaluators, id. at 28,

158-61, 162-220, 221, 253-55, 256-80, 300-301; and evidence that Roma could perform the

activities of daily living, id. at 26. Accordingly, we conclude that the ALJ correctly applied the

treating physician rule when he considered the opinions of Dr. Prywes and Dr. Ligorski.

       Roma’s second argument -- that the ALJ failed to follow SSR 85-15 by failing to

evaluate Roma’s ability to cope with stress -- was waived when Roma failed to raise it before the

district court below. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (“Although

claimants in Social Security cases are not subject to some issue exhaustion requirements, at least

where the claimant is represented by counsel before the district court, the claimant must present

the relevant legal arguments in that forum in order to preserve them for appellate review.”)

(internal citation omitted). Even if Roma had asserted the argument, however, it would be

without merit. SSR 85-15, descriptively titled “The Medical-Vocational Rules as a Framework

for Evaluating Solely Nonexertional Impairments,” does not apply to a case, such as this one, in

which the claimant suffers from a combination of exertional and non-exertional impairments.

See Social Security Ruling 85-15, 1985 SSR LEXIS 20 (S.S.A. 1985) (emphasis supplied).

       Finally, we turn to Roma’s argument that the ALJ improperly used the medical

vocational guidelines to determine that there are jobs Roma can perform in the national


                                                 7
economy. Because Roma established that his various impairments prevented him from

performing his past work, the ALJ had the burden of proving that Roma retained “a residual

functional capacity to perform alternative substantial gainful work which exists in the national

economy.” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986). The ALJ ordinarily meets this

burden by utilizing the applicable medical vocational guidelines, although sole reliance on the

guidelines may be inappropriate where the claimant’s exertional impairments are compounded

by nonexertional impairments.

       “In the ordinary case,” the Commissioner meets his burden at the fifth step “by resorting
       to the applicable medical vocational guidelines (the grids), 20 C.F.R. Pt. 404, Subpt. P,
       App. 2 (1986).” Bapp, 802 F.2d at 604. The grids “take[ ] into account the claimant’s
       residual functional capacity in conjunction with the claimant’s age, education and work
       experience.” Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996). Based on these
       considerations, the grids indicate whether the claimant can engage in any substantial
       gainful work existing in the national economy. Although the grid results are generally
       dispositive, exclusive reliance on the grids is inappropriate where the guidelines fail to
       describe the full extent of a claimant’s physical limitations. In particular, “sole reliance
       on the [g]rid[s] may be precluded where the claimant’s exertional impairments are
       compounded by significant nonexertional impairments that limit the range of sedentary
       work that the claimant can perform.” Id. In these circumstances, the Commissioner must
       “introduce the testimony of a vocational expert (or other similar evidence) that jobs exist
       in the economy which claimant can obtain and perform.” Bapp, 802 F.2d at 603.

Rosa, 168 F.3d at 78 (footnote omitted). However, “the mere existence of a nonexertional

impairment does not automatically require the production of a vocational expert nor preclude

reliance on the guidelines.” Bapp, 802 F.2d at 603. Rather, “[a] more appropriate approach is

that when a claimant’s nonexertional impairments significantly diminish his ability to work --

over and above any incapacity caused solely from exertional limitations -- so that he is unable to

perform the full range of employment indicated by the medical vocational guidelines, then the

Secretary must introduce the testimony of a vocational expert (or other similar evidence) that

jobs exist in the economy which claimant can obtain and perform.” Id. “A claimant’s work

                                                 8
capacity is ‘significantly diminished’ if there is an ‘additional loss of work capacity . . . that so

narrows a claimant’s possible range of work as to deprive him of a meaningful employment

opportunity.’” Pratts, 94 F.3d at 39 (quoting Bapp, 802 F.2d at 606).

        In this case, Roma argues (1) that the non-exertional impairment found by the ALJ

required him to obtain vocational testimony, (2) that the ALJ failed to base his conclusions on

his own RFC finding, and (3) that the ALJ failed to use or follow SSR 00-4P. Addressing these

contentions in turn, Roma’s first argument is premised on the assertion that the ALJ’s decision

was not supported by any vocational evidence. However, two individuals from the state agency,

who identified themselves an “adjudicator” and “disability examiner,” respectively, provided

vocational evidence in this case. See App. 110, 127. Roma cites no authority for the proposition

that these professionals are not “vocational experts”; to the contrary, the regulations and case law

suggest that small variations in job title are not particularly relevant in this context. See, e.g.,

1985 SSR LEXIS 20 (S.S.A. 1985) (“[s]tate agencies may use personnel termed vocational

consultants or specialists”); Bapp, 802 F.2d at 603 (“the Secretary must introduce the testimony

of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant

can obtain and perform”) (emphasis supplied)). Thus, we find that the ALJ properly introduced

evidence that jobs exist in the economy that Roma can perform, and that Roma’s first contention

is therefore without merit.2

        Roma next argues that the ALJ’s RFC differed from the adjudicator’s RFC, and that the

ALJ improperly “acted as his own [vocational expert] and chose the adjudicator’s jobs, even


        2
          Roma’s related arguments, that the vocational “adjudicator” and “disability examiner”
were required to testify and present their qualifications at the hearing, were waived when Roma
failed to present them to the district court. See Poupore, 566 F.3d at 306.

                                                   9
though his RFC was different.” See Pl.’s Br. at 38. This argument is unavailing, however, for

the simple reason that a comparison of the RFC employed by the adjudicator and the one

employed by the ALJ reveals that the two RFCs are nearly identical -- with the ALJ’s RFC

determination being more detailed, but not more limiting, than that of the vocational adjudicator.

See Def.’s Br. at 57.

       Finally, Roma failed to assert below the argument that he now urges on appeal: that the

ALJ failed to follow SSR 00-4p by not inquiring as to conflicts between the vocational evidence

and the information provided in the Dictionary of Occupation Titles (“DOT”) about the

requirements of a job or occupation. See SSR 00-4p. But even if Roma had not waived this

argument, the ALJ was not required to make any such inquiry because the jobs he identified

were DOT job titles, and therefore there was no “possible conflict between th[e] [vocational]

evidence [about the requirements of a job or occupation] and information provided in the DOT.”

Id.

       We have considered Roma’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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