15-3483-cv
Johnson 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 September, two thousand sixteen.

PRESENT:            JOHN M. WALKER, JR.,
                    JOSÉ A. CABRANES,
                                 Circuit Judges,
                    RICHARD M. BERMAN,
                                 District Judge. *


MOSES JOHNSON II,

                            Plaintiff-Appellant,                   15-3483-cv

                            v.

CAROLYN W. COLVIN, Acting Commissioner of
Social Security

                            Defendant-Appellee,


FOR PLAINTIFF-APPELLANT:                                 Elizabeth Haungs, Law Offices of
                                                         Kenneth Hiller, PLLC.




     *
    The Honorable Richard M. Berman, United States District Court for the Southern District of
New York, sitting by designation.

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FOR DEFENDANTS-APPELLEES:                                   Heetano Shamsoondar, Special Assistant
                                                            United States Attorney (Stephen P. Conte,
                                                            Regional Chief Counsel, Office of the
                                                            General Counsel, Social Security
                                                            Administration, on the brief), for William J.
                                                            Hochul, Jr., United States Attorney,
                                                            Western District of New York, Buffalo,
                                                            NY.

       Appeal from an order of the United States District Court for the Western District of New
York (William M. Skretny, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.

         Plaintiff-Appellant Moses Johnson II appeals from the District Court’s September 3, 2015
judgment affirming the Commissioner of Social Security’s decision denying Johnson’s application
for disability benefit insurance (“DBI”) and dismissing Johnson’s complaint.

         On August 27, 2011, Johnson filed an application for DBI, which was denied. Johnson then
requested a hearing before an administrative law judge (“ALJ”). On January 4, 2013, ALJ Donald T.
McDougall held a hearing at which Johnson appeared with counsel and testified. On January 31,
2013, ALJ McDougall issued a decision finding that Johnson had a number of substantial
impairments, but that these impairments did not render him disabled within the meaning of the
Social Security regulations. ALJ McDougall accordingly denied Johnson’s application. Johnson
requested review by the Appeals Council, which denied his request. Johnson then appealed the
Commissioner’s final decision to the District Court. On September 3, 2015, the District Court
entered judgment for the Commissioner. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.

         “When deciding an appeal from a denial of disability benefits, we focus on the administrative
ruling rather than the district court's opinion.” McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014)
(internal quotation marks omitted). “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.” Id. (internal quotation
marks 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.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). In evaluating whether the
requisite substantial evidence exists, we “defer to the Commissioner's resolution of conflicting
evidence,” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012), and can reject findings of fact



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“only if a reasonable factfinder would have to conclude otherwise,” Brault v. Soc. Sec. Admin. Comm'r,
683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks omitted).

        Johnson makes two arguments on appeal. First, Johnson argues that the ALJ’s finding that
Johnson “had the residual functional capacity to perform light work,” S.A. 21, was not supported by
substantial evidence. To that end, Johnson asserts that the ALJ impermissibly relied on vague
medical evidence and on his own lay opinion to make his finding, and that the ALJ failed to contact
one of Johnson’s doctors to fill a gap in the record regarding Johnson’s post-surgery functionality.
Second, Johnson argues that the ALJ’s finding that Johnson could perform work at a pace not more
than “10% slower than average,” S.A. 21, also was not supported by substantial evidence. Relatedly,
Johnson claims that the ALJ failed to evaluate the combined effect of Johnson’s mental and physical
impairments when making that finding. After conducting a plenary review of the record, we
conclude that both of the ALJ’s findings were supported by substantial evidence.

          In concluding that Johnson could “perform light work,” S.A. 21, the ALJ relied on a variety
of evidence. See 20 C.F.R. § 404.1545(a)(3) (explaining that an ALJ looks to “all of the relevant
medical and other evidence” including relevant medical reports, consultative examinations, medical
history, and statements from medical sources, family, friends, or other persons when assessing an
applicant’s residual functional capacity). For example, the ALJ considered Johnson’s own testimony
explaining that after his aortic valve replacement surgery he could lift 10 to 15 pounds, could walk a
little further than he could before his surgery, went to the gym 3 to 5 times a week, and did much of
his own cooking, cleaning, and grocery shopping. In addition, the ALJ considered a December 2012
letter from Dr. Michael D’Angelo, which stated that Johnson had “severe functional limitations”
prior to his aortic valve replacement surgery, but since that surgery “has made clinical
improvement.” Administrative Record, 533. Dr. D’Angelo’s letter also stated that Johnson would
benefit from increased exercise post-surgery. Taken together, Johnson’s testimony and Dr.
D’Angelo’s letter constitute “relevant evidence [that] a reasonable mind might accept as adequate to
support” the conclusion that Johnson could perform “light work.” Perales, 402 U.S. at 401; see 20
C.F.R. 404.1567(b) (“Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.”).

         Johnson’s argument that Dr. D’Angelo’s opinion was “vague” is inapposite. See Aung Winn v.
Colvin, 541 Fed. Appx. 67, 69 (2d Cir. 2013) (characterizing a doctor’s statement that applicant
“should avoid pushing, pulling, or lifting objects greater than a moderate degree of weight” as
“vague and broad”). While Dr. D’Angelo’s letter alone might be inadequate to support the ALJ’s
finding, the conclusion that Johnson was capable of performing light work was supported by the
other record evidence the ALJ considered. The fact that the ALJ relied on evidence beyond Dr.
D’Angelo’s letter distinguishes this case from those cited by Johnson. See Selian v. Astrue, 708 F.3d
409, 421 (2d Cir. 2013) (remanding, among other reasons, because the ALJ concluded that an
applicant could lift 10 to 20 pounds based only on one doctor’s “remarkably vague” opinion that the


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applicant could lift “objects of a mild degree of weight on an intermittent basis”). Moreover, because
the record contained sufficient other evidence supporting the ALJ’s determination and because the
ALJ weighed all of that evidence when making his residual functional capacity finding, there was no
“gap” in the record and the ALJ did not rely on his own “lay opinion.” See Tankisi v. Comm’r of Soc.
Sec., 521 Fed. Appx. 29, 34 (2d Cir. 2013) (refusing to remand “solely on the ground that the ALJ
failed to request medical opinions in assessing residual functional capacity”); Matta v. Astrue, 508
Fed. Appx. 53, 56 (2d Cir. 2013) (concluding that an ALJ did not impermissibly rely on his own
medical judgment because “he was entitled to weigh all of the evidence available to make [a residual
functional capacity] finding that was consistent with the record as a whole”).

         Similarly, there was substantial evidence in the record supporting the ALJ’s finding that
Johnson could perform work “slightly slower than average pace, i.e. no more than 10% slower than
average.” S.A. 21. In making that finding, the ALJ gave “considerable weight” to the opinion of Dr.
Renee Baskin who undertook a consultative psychiatric evaluation of Johnson in October 2011.
S.A. 27. Dr. Baskin found that Johnson likely had borderline intellectual functioning, but she did not
issue a psychiatric diagnosis. Dr. Baskin also concluded that Johnson would have minimal to no
limitations with respect to his ability to understand and follow simple directions, perform simple
tasks independently, maintain attention and concentration, and learn new tasks with supervision. Dr.
Baskin did suggest, however, that Johnson’s physical problems might interfere with his ability to
maintain a regular schedule. The ALJ also discussed evidence showing that Johnson had a history of
learning disability and that previous testing of Johnson concluded that he needed supportive services
to help him learn new tasks. Nevertheless, the ALJ considered the fact that Johnson previously was
able to maintain a job for thirteen years and recently held a temporary job as evidence that his
history of learning disability did not significantly limit his capacity to perform simple work, although
it imposed some limitation on his ability to perform more than simple work. The ALJ also took
account of Johnson’s physical condition, but credited Johnson’s admission that his physical
symptoms improved after his aortic valve replacement surgery.

          Johnson takes issue with the specificity of the ALJ’s “10%” finding. As made clear in the
district court’s opinion, however, the ALJ’s “no more than 10%” limitation was “a percentage which
reflected [Johnson’s] ability to maintain employment despite the potential to be minimally slower
than average.” Johnson v. Colvin, 2015 WL 5167162, at *4 (W.D.N.Y Sept. 3, 2015). The ALJ’s
conclusion that Johnson could perform light work at a slightly slower than average pace is supported
by the record evidence. The fact that the ALJ assigned a particular percentage range (0-10%) to
illustrate Johnson’s limitation does not undermine the fact that the ALJ’s finding was supported by
substantial evidence. For that reason, the cases cited by Johnson, wherein this Court rejected highly
specific findings that were unsupported by the record, are inapt. See Cosnyka v. Colvin, 576 Fed. Appx.
43, 46 (2d Cir. 2014) (holding that there was no evidentiary basis for the ALJ’s conclusion that an
applicant needed only six-minutes off per hour); Mariani v. Colvin, 567 Fed. Appx. 8, 10 (2d Cir.
2014) (holding that there was not substantial evidence in the record supporting the ALJ’s conclusion

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that an applicant could use his hand fifty-percent of the time). In addition, Johnson’s argument that
the ALJ did not consider the combined effect of Johnson’s mental and physical disability is belied by
the record.

                                         CONCLUSION

        We have considered all of the arguments raised by plaintiff on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the September 3, 2015 judgment of the
District Court.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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