10-566-cv
Priel 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 23rd day
of December, two thousand eleven.

Present:
         JON O. NEWMAN,
         RALPH K. WINTER,
         ROBERT A. KATZMANN,
                     Circuit Judges.
________________________________________________

RYAN J. PRIEL,

           Plaintiff-Appellant,

                  v.                                            No. 10-566-cv

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

         Defendant-Appellee.
________________________________________________

For Plaintiff-Appellant:                 RAYMOND J. RIGAT, Clinton, Conn.

For Defendant-Appellee:                  MICHELLE L. CHRIST, Special Assistant United States
                                         Attorney (Stephen P. Conte, Regional Chief Counsel,
                                         Region II, Office of the General Counsel, Social
                                         Security Administration, on the brief), for William J.
                                         Hochul, Jr., United States Attorney for the Western
                                         District of New York
       Appeal from the United States District Court for the Western District of New York
(Telesca, 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 Ryan J. Priel appeals from a judgment of the United States District

Court for the Western District of New York (Telesca, J.) entered on January 19, 2010, affirming

the determination by an Administrative Law Judge (“ALJ”) that Priel was not disabled and was

therefore ineligible for Disabled Adult Child and Supplemental Security Income benefits. On

appeal, Priel 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

Priel’s treating psychiatrist and nurse and (2) considered only Priel’s ability to read and write,

not the cumulative effect of his mental impairments, on his ability to work. Priel argues also that

the ALJ improperly relied on a vocational expert witness’s response to a hypothetical question

that did not accurately reflect Priel’s mental limitations. 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) (alterations in original) (quoting Schaal v. Apfel, 134

F.3d 496, 500-01 (2d Cir. 1998)) (internal quotation marks 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, “[w]e 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 (alterations in original)

(quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998)) (internal quotation marks omitted).


                                                  2
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

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal quotation marks omitted).

We “may not substitute [our] own judgment for that of the [Commissioner], even if [we] might

justifiably have reached a different result upon a de novo review.” Valente v. Sec’y of Health &

Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

        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).

        We begin with Priel’s contention that the ALJ’s RFC determination was not supported by


                                                  3
substantial evidence on the ground that the ALJ erroneously failed to accord controlling weight

to the medical opinions of Dr. Robert Young, his treating 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).

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

controlling weight to the opinion of Dr. Young because it was inconsistent in material respects

with other substantial evidence. For example, Dr. Thomas Ryan, a consultative examiner, noted

that Priel reported no depressive symptoms and that medication relieved his “paranoid ideation.”

R. at 204-05. He observed also that Priel was “generally cooperative,” his speech was

intelligible and his thought process was coherent without hallucinations, delusions or paranoia.

Id. Dr. Herman V. Szymanski, the state agency psychiatrist, likewise found that Priel was able

to understand and execute simple instructions, maintain concentration for an adequate period of

time, relate to co-workers and supervisors and “adapt to routine changes in a low contact

setting.” Id. at 451. Dr. Wilberforce Tamaklo, a treating psychiatrist, noted that Priel’s “level of

lethality” was “[e]ssentially nil” and that Priel “will do very well if he continues to maintain

sobriety.” Id. at 124. Dr. Shabbir A. Chowdhury, another treating psychiatrist, noted that Priel’s

prognosis was “relatively fair if [he] remains medication compliant and addresses his

polysubstance abuse.” Id. at 177. The results of both Dr. Chowdhury’s and Dr. Muhammad

                                                  4
Ali’s mental status examinations were normal. In addition, Lynn Beltz, Priel’s “job trainer,”

repeatedly noted that Priel was productive, worked with speed and efficiency, retained what he

had learned and could follow instructions. She observed that Priel’s employers, in turn, were

satisfied with his work.

       Priel does not dispute that the findings of Drs. Ryan, Szymanski, Tamaklo, Chowdhury

and Ali and Ms. Beltz substantially support the ALJ’s RFC determination and are materially

inconsistent with Dr. Young’s opinion. Moreover, the results of Dr. Young’s “mental status

examination” were normal; Priel was “alert and oriented” and “cooperative,” and there were “no

signs of psychosis, hallucinations or delusions.” Id. at 461. Dr. Young further observed that

Priel’s cognitive ability was consistent with that of a person of “general intelligence” and was

“certainly adequate for his work.” Id. at 541. In these circumstances, we conclude that Dr.

Young’s opinion that Priel was disabled are “inconsistent with the other substantial [record]

evidence.” 20 C.F.R. § 404.1527(d)(2). Therefore, the ALJ properly declined to accord it

controlling weight.

       We turn next to Priel’s argument that the ALJ failed to consider the cumulative effect of

his impairments, including his schizoaffective disorder and learning disability. As an initial

matter, the ALJ expressly found that Priel’s schizoaffective disorder and “unspecified learning

disability” constituted severe impairments. R. at 19. The ALJ noted also that he had considered

Priel’s mental impairments “singly and in combination.” Id. Pursuant to the psychiatric review

technique set forth at 20 C.F.R. §§ 404.1520a and 416.920a, the ALJ found that Priel’s

schizoaffective disorder was well controlled with Haldol. As for Priel’s learning disability, the

ALJ found, in view of a discrepancy between Priel’s intelligent quotient scores and academic

performance, that Priel was learning disabled. The ALJ’s RFC determination was based upon an

                                                 5
evaluation of both medical and non-medical evidence and the “total limiting effects” of Priel’s

medically determinable impairments. 20 C.F.R. §§ 404.1545(e), 416.945(e). In these

circumstances, Priel’s contention that the ALJ failed to consider the cumulative effect of all of

his impairments is without merit.

       Finally, we conclude that the hypothetical question addressed by Dr. Peter Manzi, a

vocational expert witness, accurately reflected Priel’s vocational profile and RFC. In

determining Priel’s RFC, the ALJ properly evaluated the entirety of the record, including both

medical and non-medical evidence, and discounted Dr. Young’s opinion insofar as it conflicted

with other substantial evidence. At the same time, the ALJ properly declined to include in his

hypothetical question symptoms and limitations that he had reasonably rejected. See, e.g.,

Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983). Accordingly, the ALJ properly relied

upon Dr. Manzi’s testimony in determining that Priel was not disabled.

       We have considered Priel’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




                                                 6
