16-875
LaValley 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 12th day of January, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             SUSAN L. CARNEY,
                           Circuit Judges,
             KATHERINE POLK FAILLA,*
                           District Judge.

    - - - - - - - - - - - - - - - - - - - -X
    CORA LAVALLEY,
             Plaintiff-Appellant,

                 -v.-                                               16-875

    CAROLYN W. COLVIN, Commissioner of
    Social Security,
             Defendant-Appellee,

    - - - - - - - - - - - - - - - - - - - -X



           *
           Judge Katherine Polk Failla, of the United States
    District Court for the Southern District of New York,
    sitting by designation.
                                             1
FOR APPELLANT:             MARK SCHNEIDER, Law Office of
                           Mark A. Schneider, Plattsburgh,
                           NY.

FOR APPELLEES:             KAREN T. CALLAHAN (with Stephen
                           P. Conte on the brief), for
                           Richard S. Hartunian, United
                           States Attorney for the Northern
                           District of New York.

     Appeal from the judgment of the United States District
Court for the Northern District of New York (Peebles, M.J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Cora LaValley appeals from the judgment of the United
States District Court for the Northern District of New York
(Peebles, M.J.), affirming Administrative Law Judge (“ALJ”)
Paul Kelly’s denial of disability benefits and supplemental
security income on the ground that LaValley is not
“disabled” within the meaning of the relevant statutes. We
assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues presented for review.

     1. LaValley contends that the ALJ afforded too much
weight to the opinions of consultative physicians, and not
enough weight to other sources who had a longer relationship
with LaValley. In particular, LaValley argues that the ALJ
should have given more than merely “some weight” to evidence
produced by LaValley’s nurse practitioner, Marilyn McClure.
Special App’x at 25.

     LaValley does not clearly explain why she benefits from
this argument, given that the ALJ’s findings are broadly
consistent with McClure’s medical determinations. For
example, McClure submitted a document in which she stated
that LaValley’s capacity to walk, stand, sit, lift, or climb
stairs was “very limited.” Admin. Record at 574. The ALJ’s
findings are not to the contrary: LaValley could “lift up to
10 pounds occasionally, stand and walk for about two hours
in an eight-hour workday and sit for up to six hours in an
eight-hour workday with normal breaks,” Special App’x at 21;
LaValley could “occasionally climb ramps or stairs, balance,
and stoop,” but “[s]he can never climb ladders . . . kneel,
crouch, or crawl.” Id. LaValley does not identify how the

                             2
ALJ’s determination would have changed simply by giving more
weight to McClure’s evidence.1

      LaValley suggests that the ALJ would have necessarily
found LaValley to be disabled if the ALJ had given
appropriate weight to McClure’s opinion that LaValley could
not perform any work because of her chronic back problems
and morbid obesity. However, whether LaValley qualifies as
“disabled” under the statute is a decision reserved to the
Commissioner. 20 C.F.R. § 404.1527(d)(1).

     LaValley’s brief could also be construed as arguing
that McClure is a “treating source” within the meaning of
Social Security Administration regulations. If so,
McClure’s testimony could be entitled to “controlling
weight.” 20 C.F.R. § 404.1527(c)(2). To the extent this is
LaValley’s argument, she is incorrect. Only “acceptable
medical sources” may be considered “treating sources.” Id.
§ 404.1502. A nurse practitioner is not an “acceptable
medical source.” Id. § 404.1513(a), (d).

     2. LaValley argues that the ALJ failed to consider her
impairments in combination when determining whether she was
disabled. LaValley is incorrect. The ALJ expressly
recognized that he must consider impairments in combination.
There is no reason to suspect that the ALJ considered
LaValley’s impairments in isolation.

     As to LaValley’s broader challenge, we may overturn the
ALJ’s disability finding on evidentiary grounds only if it
is unsupported by substantial evidence. 42 U.S.C. § 405(g);
see Cichocki v. Astrue, 729 F.3d 172, 175-76 (2d Cir. 2013).
The ALJ considered (inter alia) LaValley’s testimony
regarding her daily routine, various medical tests, and
reports from numerous medical sources to conclude that
LaValley was not disabled. These sources constitute
substantial evidence from which the ALJ could conclude that
LaValley is not disabled.


    1
       McClure and the ALJ do squarely conflict in one
respect. Whereas McClure found that LaValley would need to
be able to switch from standing to sitting every ten to
fifteen minutes, the ALJ found that LaValley would need to
do so every thirty minutes. However, LaValley does not
appear to argue that resolving this single discrepancy in
her favor would have led the ALJ to deem her disabled.
                             3
     3. LaValley asserts that the ALJ gave insufficient
credence to her own testimony regarding her level of pain.
See Special App’x at 22 (“[T]he claimant’s statements
concerning the intensity, persistence and limiting effects
of [her] symptoms are not entirely credible.”). LaValley
contends that the ALJ discounted her testimony chiefly
because (a) she had stated--in a previous application for
unemployment benefits--that she was able to work, (b) she
had incorrectly stated the period in which she received
unemployment benefits, and (c) the ALJ had personally
observed her sitting still for thirty minutes without the
need to stand up. LaValley challenges these observations as
providing an improper basis on which to reject her
testimony.

     An ALJ must consider a claimant’s testimony, but may
look to other evidence in determining credibility. See 20
C.F.R. §§ 404.1529(c); 416.929(c). Here, the ALJ considered
various sources of evidence and justifiably declined to give
less than determinative weight to LaValley’s testimony
regarding the debilitating effects of her pain. For
example, the ALJ looked to LaValley’s daily routine; she
stated that she could clean the house, do laundry, dress and
bathe herself, and perform childcare, among other
activities. See 20 C.F.R. § 404.1529(c)(3)(i) (listing
“daily activities” as an appropriate consideration in
determining a claimant’s level of pain). The ALJ also
analyzed numerous medical reports in determining how much
credence to give LaValley’s testimony.

     LaValley complains that the ALJ gave improper weight to
her receipt of unemployment insurance and the ALJ’s personal
observations of LaValley at the hearing. However, the ALJ
did not rely solely on these grounds, and in fact considered
many other types of evidence in depth. We see no reason to
disturb the ALJ’s credibility findings.2

     4. LaValley asserts that the ALJ erroneously premised
the disability decision on the ground that LaValley had
failed to follow medical recommendations to lose weight.


    2
       Additionally, LaValley appears to concede that an
ALJ may give some consideration to the ALJ’s personal
observations as well as a claimant’s receipt of unemployment
insurance.
                             4
LaValley’s premise is incorrect. The ALJ did not ground its
disability decision on her failure to lose weight.

     For the foregoing reasons, and finding no merit in
LaValley’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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