     13-4477-cv
     Polynice 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 20th day of August, two thousand fourteen.
 5
 6       PRESENT: JOHN M. WALKER, JR.,
 7                DENNIS JACOBS,
 8                RICHARD C. WESLEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       DONNA POLYNICE,
13
14                    Plaintiff-Appellant,
15
16                    -v.-                                        No. 13-4477-cv
17
18       CAROLYN W. COLVIN, Commissioner of
19       Social Security,
20
21                Defendant-Appellee.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR PLAINTIFF-APPELLANT:              MARK A. SCHNEIDER, Law Office of
25                                             Mark A. Schneider, Plattsburgh,
26                                             NY.
27


                                                  1
 1   FOR DEFENDANT-APPELLEE:    REBECCA HOPE ESTELLE, Special
 2                              Assistant U.S. Attorney, United
 3                              States Social Security
 4                              Administration, New York, NY.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the Northern District of New York (Hurd, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Donna Polynice appeals the dismissal of her action
14   against the Commissioner of Social Security (“Commissioner”)
15   for disability insurance benefits beginning February 2006.
16   An administrative law judge (“ALJ”) found that Polynice was
17   not disabled under the Social Security Act, and the Appeals
18   Council denied review. The district court adopted
19   Magistrate Judge Baxter’s Report and Recommendation, and
20   affirmed the Commissioner’s decision. We assume the
21   parties’ familiarity with the underlying facts, the
22   procedural history, and the issues on appeal.
23
24        “In reviewing a district court’s decision upholding a
25   decision of the Commissioner, we review the administrative
26   record de novo to determine whether there is substantial
27   evidence supporting the Commissioner’s decision and whether
28   the Commissioner applied the correct legal standard.”
29   Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) (internal
30   quotation marks omitted). Substantial evidence is “more
31   than a mere scintilla” and “means such relevant evidence as
32   a reasonable mind might accept as adequate to support a
33   conclusion.” Richardson v. Perales, 402 U.S. 389, 401
34   (1971) (internal quotation marks omitted). In deciding
35   whether substantial evidence exists, we defer to the
36   Commissioner’s resolution of conflicting record evidence.
37   See Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.
38   1998). If there is substantial evidence in the record to
39   support the Commissioner’s findings, those findings are
40   conclusive. See 42 U.S.C. § 405(g); Perez v. Chater, 77
41   F.3d 41, 46 (2d Cir. 1996).
42
43        Polynice argues that the Commissioner erred by (1)
44   finding that her impairments did not meet or equal the

                                  2
 1   criteria of “per se disabling” impairments; (2) overstating
 2   her residual functional capacity (“RFC”); and (3) concluding
 3   that she is able to do other work existing in significant
 4   numbers in the national economy. Polynice also argues that
 5   (4) remand is warranted because the Commissioner has since
 6   found Polynice disabled as of January 2013.
 7
 8        1. “Per Se Disabling” Impairments. To establish a “per
 9   se disabling” impairment set out in Listings 1.02 or 1.03 of
10   20 C.F.R. Part 404, Subpart P, Appendix 1, a claimant must
11   demonstrate an “inability to ambulate effectively.”
12   Substantial evidence supports the ALJ’s conclusion that
13   Polynice, despite her knee impairment, suffered from no such
14   inability. The consultative examiner’s findings failed to
15   indicate gait abnormalities, and Polynice maintained a
16   lifestyle that included performance of household chores and
17   attendance at church and college.
18
19        The ALJ also sufficiently considered Polynice’s obesity
20   in his determination. He explicitly addressed possible
21   medical complications and relied on reports that considered
22   Polynice’s weight.
23
24        2. RFC Finding. In determining Polynice’s RFC, the ALJ
25   carefully considered Polynice’s physical and mental
26   examinations and treatment history, and recognized her
27   inability to continuously stand, walk, and sit. Substantial
28   evidence supported the ALJ’s finding that Polynice
29   nevertheless had the RFC to perform some unskilled sedentary
30   work.
31
32        With regard to Polynice’s alleged back-related
33   limitations, the ALJ chose to credit her initial Disability
34   Report, which stated that she could sit for up to two hours,
35   over later reports, which claimed far greater restrictions.
36   This was not error because (as the ALJ explained) the later
37   reports were unsupported by the record, which reflects that
38   Polynice rarely complained of back pain during the relevant
39   time.
40
41        Nor did the ALJ improperly deny controlling weight to
42   any treating physician’s medical opinion. See 20 C.F.R.
43   § 404.1527(c)(2) (“If we find that a treating source’s
44   opinion on the issue(s) of the nature and severity of your

                                  3
 1   impairment(s) is well-supported by medically acceptable
 2   clinical and laboratory diagnostic techniques and is not
 3   inconsistent with the other substantial evidence in your
 4   case record, we will give it controlling weight.”). Much of
 5   what Polynice labels “medical opinion” was no more than a
 6   doctor’s recording of Polynice’s own reports of pain. The
 7   ALJ’s findings sufficiently recognized Polynice’s
 8   impairments and were entirely consistent with the medical
 9   opinions in the record.
10
11        3. Other Work. Substantial evidence supports the ALJ’s
12   finding that, despite Polynice’s significant impairments,
13   she is capable of performing other work existing in
14   significant numbers in the national economy. Expert
15   testimony supported a finding that someone with Polynice’s
16   RFC, age, education, and work experience could work as an
17   Account Clerk, Addresser, or Order Clerk.
18
19        Polynice asserts that the expert did not consider her
20   lack of educational development and skills, but the record
21   reflects that Polynice earned her GED, completed a childcare
22   program, attended college, and worked as a Certified Nurse’s
23   Aide for over four years.
24
25        4. Later Finding of Disability. Polynice argues that
26   the district court should have remanded the case because the
27   Commissioner subsequently found her disabled as of January
28   2013. As the court found, however, the subsequent favorable
29   decision did not constitute “new” and “material” evidence
30   requiring remand. 42 U.S.C. § 405(g). The finding that
31   Polynice was disabled more than two and a half years after
32   the ALJ’s unfavorable decision says little about “whether
33   plaintiff was disabled” during the time period relevant
34   here, “and any inference that can be drawn is too weak to
35   displace the substantial evidence supporting the ALJ’s
36   determination.” Baladi v. Barnhart, 33 F. App’x 562, 563-64
37   (2d Cir. 2002) (summary order). Moreover, in the interval
38   between the ALJ’s unfavorable decision and the
39   Commissioner’s subsequent favorable decision, Polynice
40   turned 50 years old, which put her into a different age
41   category and thus impacted her ability to perform sedentary
42   jobs under the applicable regulations. See 20 C.F.R. Part
43   404, Subpart P, App. 2 § 201.00(g).
44

                                  4
1        We have considered all of Polynice’s remaining
2   arguments and conclude that they are without merit.   The
3   judgment of the district court is hereby affirmed.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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