     15-3399
     Monette 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.

 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 7th day of July, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       TYLER MONETTE,
13                Plaintiff-Appellant,
14
15                    -v.-                                               15-3399
16
17       CAROLYN W. COLVIN, Acting Commissioner
18       of Social Security,
19                Defendant-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        MARK SCHNEIDER, Schneider &
23                                             Palcsik, Plattsburgh, New York.
24
25       FOR APPELLEE:                         REBECCA H. ESTELLE, Special
26                                             Assistant United States Attorney
27                                             (Stephen P. Conte, Regional
28                                             Chief Counsel, on the brief),

                                                  1
 1                              Office of the General Counsel,
 2                              Region II, Social Security
 3                              Administration, New York, New
 4                              York, for Richard S. Hartunian,
 5                              United States Attorney for the
 6                              Northern District of New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Northern District of New York (Peebles, M.J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Tyler Monette appeals from the judgment of the United
16   States District Court for the Northern District of New York
17   (Peebles, M.J.), dismissing Monette’s complaint challenging
18   the denial of disability insurance benefits under Title II
19   of the Social Security Act (the “Act”).1 We assume the
20   parties’ familiarity with the underlying facts, the
21   procedural history, and the issues presented for review.
22
23        When considering a denial of disability benefits, we
24   conduct a plenary review of the administrative record, and
25   “focus on the administrative ruling rather than the district
26   court’s opinion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
27   Cir. 2009). We must uphold the denial if “there is
28   substantial evidence, considering the record as a whole, to
29   support the Commissioner’s decision and if the correct legal
30   standards have been applied.” Burgess v. Astrue, 537 F.3d
31   117, 128 (2d Cir. 2008); see 42 U.S.C. § 405(g).
32   “Substantial evidence is evidence that amounts to more than
33   a mere scintilla, and has been defined as such relevant
34   evidence as a reasonable mind might accept as adequate to
35   support a conclusion.” McIntyre v. Colvin, 758 F.3d 146,
36   149 (2d Cir. 2014) (internal quotation marks omitted).
37
38        1.  The Appeals Council denied Monette’s request for
39   review five days after the request was received. Monette
40   argues that the quick decision deprived him of due process
41   and of the right to submit new evidence. The due process
42   argument fails because speed does not indicate inadequate


         1
           Monette alleged an onset date of February 6, 2013,
     and was required to establish disability on or before
     September 30, 2014, the date he was last insured.
                                  2
 1   review, see 20 C.F.R. § 404.967, and Monette’s request for
 2   review was expedited because he is a veteran with a service-
 3   related impairment.
 4
 5        Nor was Monette unfairly denied the right to submit new
 6   evidence. The Agency review request form stated clearly
 7   that any additional evidence or a written request for an
 8   extension of time to submit such evidence must be submitted
 9   along with the request for review. R. 8; see also 20 C.F.R.
10   § 404.968(a), (b). Having failed to submit either, Monette
11   cannot demonstrate unfairness.2
12
13        In any event, as the district court correctly
14   concluded, Monette has failed to demonstrate that such new
15   evidence as he has now adduced is material. See 42 U.S.C.
16   § 405(g); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir.
17   1988).3
18
19        2.  Monette argues that the Administrative Law Judge
20   (“ALJ”) committed legal error by attributing more weight to
21   the opinion of the consulting psychologist than to the
22   opinion of his treating nurse practitioner.
23
24        This argument fails because, under the regulations, a
25   nurse practitioner is not an “acceptable medical source”
26   whose opinion is eligible for “controlling weight.” 20
27   C.F.R. § 404.1513(a), (d)(1); id. § 404.1527(a)(2), (c); see
28   SSR 06-03p, 2006 WL 2329939, at *1-2 (Aug. 9, 2006). The
29   nurse practitioner’s opinion was nevertheless considered,


         2
           Monette’s letter brief to the Appeals Council cannot
     reasonably be construed as a request for an extension of
     time. It merely suggests that if additional records are
     received, they will be forwarded to the Appeals Council.
     See R. 7.
         3
           Most such evidence post-dates Monette’s last-insured
     date. Insofar as the Department of Veterans Affairs
     retroactively increased his disability rating from 30% to
     70%, that determination did not find that Monette had total
     occupational and social impairment, see S.A. 58, and, in any
     event, would be of limited relevance before the Agency,
     since different rules and standards govern. See Cutler v.
     Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975); see also 20
     C.F.R. § 404.1504; SSR 06-03p, 2006 WL 2329939, at *7 (Aug.
     9, 2006).
                                  3
 1   not overlooked, cf. Kohler v. Astrue, 546 F.3d 260, 268-69
 2   (2d Cir. 2008); and the weight attributed to it was
 3   supported by the applicable regulatory factors. See 20
 4   C.F.R. § 404.1527(c); SSR 06-03p, 2006 WL 2329939, at *4-5.
 5
 6        The greater weight accorded by the ALJ to the opinion
 7   of the consultative psychologist is also consistent with the
 8   record at large and the applicable regulations. See 20
 9   C.F.R. § 404.1527(c); see also Diaz v. Shalala, 59 F.3d 307,
10   313 n.5 (2d Cir. 1995); Mongeur v. Heckler, 722 F.2d 1033,
11   1039 (2d Cir. 1983) (per curiam).4
12
13        Monette conclusorily faults the ALJ for not giving more
14   weight to reports of various other treating sources. We
15   identify no error because the ALJ in fact deemed probative,
16   and incorporated into his findings, medical reports and
17   opinions by Monette’s various treating therapists and
18   physicians at the Department of Veterans Affairs (“VA”) and
19   Behavioral Health Services North; and Monette does not
20   identify which source or opinion was purportedly given
21   insufficient consideration. See Br. of Appellant 45-53.
22
23        3.  Monette argues that the ALJ failed to provide a
24   sufficient explanation for finding him “not entirely
25   credible.” R. 19. Credibility is a matter committed to the
26   sound discretion of the ALJ, and we will not identify error
27   so long as the finding is supported by substantial evidence
28   (which it is here). See Aponte v. Sec’y, Dep’t of HHS, 728
29   F.2d 588, 591 (2d Cir. 1984).
30
31        Monette’s discredited testimony regarding the
32   intensity, persistence and limiting effects of his symptoms
33   was undermined by: (1) his own statements at a recent VA
34   examination; (2) Dr. Melcher’s opinion; and (3) Monette’s
35   failure to stop smoking marijuana to permit more effective
36   treatment of his impairments with other medication (as urged
37   by his treating psychiatrist). The ALJ also considered
38   Monette’s daily activities, the effectiveness and side
39   effects of medication, and frequency of suicidal gesture.
40   The ALJ therefore considered the factors enumerated in, and
41   provided “specific reasons” for the credibility finding as


         4
           Monette does not challenge the weight the ALJ
     assigned to the opinion of the consultative internal
     medicine physician. See R. 19. We therefore have no reason
     to review that determination.
                                  4
 1   required by, SSR 96-7p, 1996 WL 374186, at *2, *4 (July 2,
 2   1996).5
 3
 4        4.  Finally, substantial evidence supports both (1)
 5   the ALJ’s finding that Monette’s impairments did not meet or
 6   equal the criteria of listed impairments at step three of
 7   the evaluation process, and (2) the ALJ’s assessment of
 8   Monette’s residual functional capacity (“RFC”), used in
 9   steps four and five of the process. See 20 C.F.R. §
10   404.1520; see also R. 155-59, 179, 228-33, 262, 264-65, 267,
11   279-80, 311, 318, 319, 320-21, 329.
12
13        Monette’s arguments to the contrary are unavailing.
14   The ALJ credited Monette’s providers’ diagnoses, and found
15   their severity to satisfy step two of the evaluative
16   framework. But these diagnoses do not indicate any
17   particular level of severity, and do not resolve the issue
18   of Monette’s RFC. See 20 C.F.R. § 404.1520; see also
19   Williams ex rel. Williams v. Brown, 859 F.2d 255, 259 (2d
20   Cir. 1988). The statement by Monette’s social worker on
21   this point was not from an “acceptable medical source” and,
22   in any event, was so lacking in detail as to be minimally
23   probative.
24
25        Nor are the ALJ’s findings undermined by the record
26   Global Assessment of Functioning (“GAF”) scores. Monette’s
27   GAF scores were as high as 55 and 65 during the relevant
28   time period, which reflected (respectively) “moderate
29   symptoms” or “moderate difficulty in social, occupational,
30   or school functioning”; and “some mild symptoms” or “some
31   difficulty in social, occupational, or school functioning .
32   . . but generally functioning pretty well . . . .” DSM-IV
33   32, 34; see R. 232, 267-68.
34
35
36




         5
           The ALJ did not err in failing to apply 20 C.F.R. §§
     404.1530 and 404.1535(a) to Monette’s substance abuse, as
     those regulations apply only after a finding of disability
     to determine whether benefits are available. Nor does the
     record support Monette’s contention that the ALJ “conflated”
     the issue of his credibility with issues relevant to these
     regulations. Br. of Appellant 41.
                                  5
 1        For the foregoing reasons, and finding no merit in
 2   Monette’s other arguments, we hereby AFFIRM the judgment of
 3   the district court.
 4
 5                              FOR THE COURT:
 6                              CATHERINE O’HAGAN WOLFE, CLERK
 7
 8
 9
10




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