     10-1841-cv
     Bavaro 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 14th day of March, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                PIERRE N. LEVAL,
 9                REENA RAGGI,
10                         Circuit Judges.
11
12
13       - - - - - - - - - - - - - - - - - - - -X
14       BARBARA BAVARO,
15
16                      Plaintiff-Appellant,
17
18                      -v.-                                      10-1841-cv
19
20       MICHAEL J. ASTRUE, Commissioner of
21       Social Security,
22
23                      Defendant-Appellee.
24
25       - - - - - - - - - - - - - - - - - - - -X
26
27       FOR APPELLANT:            DAVID J. SEEGER, Buffalo, NY.
28

                                                  1
 1   FOR APPELLEE:     ANDREEA LECHLEITNER, Special Assistant
 2                     United States Attorney (Stephen P. Conte,
 3                     Regional Chief Counsel, Social Security
 4                     Administration, of counsel), for William
 5                     J. Hochul, Jr., United States Attorney
 6                     for the Western District of New York,
 7                     Buffalo, NY.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Western District of New York (Telesca, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the District Court be
14   AFFIRMED.
15
16        Plaintiff-Appellant Barbara Bavaro appeals from the
17   judgment on the pleadings entered by the United States
18   District Court for the Western District of New York
19   (Telesca, J.), affirming the Commissioner’s denial of her
20   claim for Social Security disability benefits. We assume
21   the parties’ familiarity with the underlying facts, the
22   procedural history, and the issues presented for review.
23
24   [1] Bavaro argues that the ten-pound lifting restriction
25   recommended by her treating physician, Dr. Geraci, should
26   have been controlling for the ALJ’s disability
27   determination.
28
29        “An ALJ who refuses to accord controlling weight to the
30   medical opinion of a treating physician must consider
31   various ‘factors’ to determine how much weight to give to
32   the opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d
33   Cir. 2004) (per curiam); see 20 C.F.R. § 404.1527(d)(2).
34   The ALJ must also “give good reasons in [the] notice of
35   determination or decision for the weight” accorded to the
36   treating physician’s opinion. Id.
37
38        As to Dr. Geraci’s opinion, the ALJ failed to
39   demonstrate consideration of the necessary factors and to
40   provide good reasons for discounting it. We can
41   nevertheless evaluate the treating physician’s opinion
42   ourselves through a searching review of the record. See
43   Halloran, 362 F.3d at 31-32. “While the opinions of a
44   treating physician deserve special respect, they need not be
45   given controlling weight where they are contradicted by
46   other substantial evidence in the record.” Veino v.


                                  2
 1   Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (internal
 2   citations omitted).
 3
 4        First, Dr. Geraci did not treat Bavaro during the most
 5   relevant period. The amended onset date is April 2006, when
 6   she was laid off; Dr. Geraci last saw her in 2005.
 7
 8        Second, Dr. Geraci’s assessment was contradicted by
 9   functional assessments by: [a] Marzullo, Bavaro’s treating
10   physical therapist, who found that Bavaro’s “safe work
11   capacity” included level lifting and floor lifting eighteen
12   pounds; [b] Dr. Dina, who concluded that Bavaro had no
13   functional limitations; [c] De Freitas, who determined that
14   Bavaro could occasionally lift 20 pounds and frequently lift
15   ten pounds; [d] Dr. Cox, who from the beginning thought that
16   Bavaro had a good prognosis, and later noted that she
17   responded favorably to therapy; and [e] Higgins, who
18   concluded in two assessments years apart that Bavaro could
19   occasionally lift 20 to 25 pounds and frequently lift ten
20   pounds.
21
22        In any event, the restrictions themselves are of
23   questionable value. They were imposed nearly three-and-a-
24   half years prior to the alleged disability onset date,
25   without explanation regarding their particulars, and Bavaro
26   worked in the interval. Moreover, their source is
27   correspondence from Dr. Geraci to Bavaro’s employer, rather
28   than treatment notes or medical records.
29
30        Remand for agency reconsideration is unnecessary where,
31   as here, “application of the correct legal principles to the
32   record could lead [only to the same] conclusion.” Zabala v.
33   Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (brackets in
34   original).
35
36   [2] The ALJ found that Bavaro was capable of performing
37   several jobs. Bavaro challenges each as unsuitable; the
38   Commissioner defends only the positions of photo counter
39   clerk and small products assembler. The Commissioner has
40   the burden in step five of the disability determination to
41   prove that the claimant is capable of working. Perez v.
42   Chater, 77 F.3d 41, 46 (2d Cir. 1996). The Commissioner
43   need show only one job existing in the national economy that
44   Bavaro can perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R.
45   § 404.1566(b).
46        At a minimum, substantial evidence supports the ALJ’s
47   finding that Bavaro can perform the photo counter clerk

                                  3
 1   position. We decline Bavaro’s invitation to take judicial
 2   notice of the decline of the photofinishing industry and
 3   deem the position infeasible for her. A vocational expert
 4   testified to the existence of such jobs at the national and
 5   regional level. The ALJ was entitled to credit that
 6   testimony, see 20 C.F.R. § 404.1566(e), and we will not
 7   disturb that finding based upon Bavaro’s conclusory
 8   proclamations to the contrary.
 9
10        Bavaro also challenges the transferability of her
11   experience as a paint store clerk to the photo counter clerk
12   position, based upon the numbering scheme of the Department
13   of Labor’s “Dictionary of Occupational Titles” (DOT)
14   listings. The argument ignores the critical metric for each
15   job: the skill level. Because the DOT lists the photo
16   counter clerk position as unskilled, see Social Security
17   Ruling 00-4p, 2000 SSR LEXIS 8; Certified Administrative
18   Record at 201, it is viable for Ms. Bavaro whether or not
19   any of her skills from her paint store position are
20   transferable. See Social Security Ruling 82-41, 1982 SSR
21   LEXIS 34 (“[A] finding of ‘not disabled’ may be based on the
22   ability to do unskilled work.”).
23
24   [3] Bavaro claims that a disability finding is warranted
25   under the Medical-Vocational Guidelines (“the Grids”). See
26   20 C.F.R. pt. 404, subpt. P, app. 2. The argument rests on
27   her “treating physician” argument, because it hinges upon
28   Dr. Geraci’s ten-pound lifting restriction controlling the
29   analysis (which would trigger application of the sedentary
30   work Grid, see 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.01
31   et seq.). As discussed, Dr. Geraci’s opinion is not
32   entitled to controlling weight; therefore, this argument is
33   without merit.
34
35   We have considered Bavaro’s remaining arguments on this
36   appeal and have found them to be without merit. For the
37   foregoing reasons, the judgment of the District Court is
38   hereby AFFIRMED.
39
40                              FOR THE COURT:
41                              CATHERINE O’HAGAN WOLFE, CLERK
42




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