12-191
Matta 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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. 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 25th day of January, two thousand thirteen.

Present:    SUSAN L. CARNEY,
            CHRISTOPHER F. DRONEY,
                  Circuit Judges,
            PAUL G. GARDEPHE,
                  District Judge.*
______________________________________________________
                                                      |
NELSON J. MATTA,                                      |
                                                      |
                  Plaintiff-Appellant,                |
                                                      |
                    v.                                |                    No. 12-191-cv
                                                      |
MICHAEL J. ASTRUE, COMMISSIONER OF THE                |
SOCIAL SECURITY ADMINISTRATION,                       |
                                                      |
                  Defendant-Appellee.                 |
______________________________________________________|


Appearing for Appellant:             ANN P. BIDDLE (Christopher J. Bowes, Center for
                                     Disability Rights, New York, NY, on the brief)
                                     Queens Legal Services, Long Island City, NY.




        *
        The Honorable Paul G. Gardephe, United States District Judge for the Southern District of
New York, sitting by designation.
Appearing for Appellee:          KENNETH M. ABELL (Kathleen A. Mahoney and
                                 Varuni Nelson, on the brief) Assistant United
                                 States Attorneys, for Loretta E. Lynch, United
                                 States Attorney for the Eastern District of New
                                 York.

      Appeal from the United States District Court for the Eastern District of New

York (Frederic Block, Judge). ON CONSIDERATION WHEREOF, it is hereby

ORDERED, ADJUDGED, and DECREED that the judgment of the District Court

be and it hereby is AFFIRMED.

      Plaintiff appeals from the district court’s judgment entered October 19, 2011,

affirming the January 26, 2009 decision of the Commissioner of the Social Security

Administration that plaintiff was not disabled and thus not entitled to benefits

under the Social Security Act, see 42 U.S.C. § 423(d).

      Plaintiff, who was 27 years old when he filed his initial application for Social

Security benefits, has been diagnosed with various forms of bipolar disorder. He

has not worked since 2005, when he was hospitalized twice at Elmhurst Hospital –

once in August and again in September of that year – as a result of manic episodes.

On January 5, 2007, plaintiff filed an application for benefits asserting that his

disability prevented him from working. On January 26, 2009, approximately two

years later, an Administrative Law Judge (“ALJ”) denied the application, finding

that plaintiff was not disabled during the period between the date of the plaintiff’s

application and the date of the ALJ’s decision. We conclude that this determination

was supported by substantial evidence in the record, and we therefore affirm. We

assume the parties’ familiarity with the facts and record of proceedings, which we

reference only as necessary to explain our decision to affirm.


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      On appeal from the district court’s decision, “we review the administrative

record de novo to determine whether there is substantial evidence supporting the

Commissioner’s decision and whether the Commissioner applied the correct legal

standard.” Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) (quotation marks

omitted). “Substantial evidence means more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation marks

omitted).

      Plaintiff first argues that the record contains insufficient evidence to support

the ALJ’s determination of plaintiff’s residual functional capacity (“RFC”), see 20

C.F.R. § 404.1545, the measure of plaintiff’s ability to work in the national economy,

see id. § 419.945. The ALJ found that plaintiff had “moderate difficulties in

concentration, persistence and pace” and “moderate difficulties in social functioning

that limit [him] to simple, routine, low-stress, and unskilled tasks, which involve no

more than minimal contact with co-workers, supervisors and the general public.”

Hearing Transcript at 15, Matta v. Astrue, No. 10-05338 (E.D.N.Y. Aug. 29, 2011),

ECF No. 16 (“Tr.”).

      Plaintiff contends that the RFC finding is not supported by any of the

medical sources in the record. The ALJ expressly referenced the expert opinions of

four medical sources: Kenneth Cochrane, Ph.D., and Drs. Juan Castro, Maria Isabel

Zapata, and Julio Riascos.

      Dr. Cochrane provided a “medical source statement” in April 2007, after

performing a “consultative examination.” Tr. at 215, 217. Dr. Cochrane found that


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plaintiff’s attention and concentration were “intact”; that his intellectual

functioning was “average,” allowing him to perform simple tasks independently;

and that plaintiff was able to relate to others “adequately.” Tr. at 215. Dr.

Cochrane recognized, however, that plaintiff’s condition fluctuated and that there

could be times when he has difficulty maintaining concentration and sustaining

social relationships. He also found that plaintiff was unable to deal with stress

appropriately. Dr. Cochrane concluded that plaintiff’s psychiatric condition may

“significantly interfere with[his] ability to function on a daily basis.” Tr. at 216.

      Drs. Castro and Zapata, who served as plaintiff’s treating psychiatrists

beginning in June or July 2006, completed and signed a medical questionnaire

dated June 13, 2007, for the New York State Office of Temporary and Disability

Assistance. On the questionnaire, Drs. Castro and Zapata advised that in the year

prior to June 2007, plaintiff had been stable and compliant with treatment, which

included weekly group therapy and monthly psychiatric appointments. They

reported that Matta had normal attention and concentration, logical thought

processes, and no limitation in social interaction during that time.

      Dr. Riascos, who became plaintiff’s treating psychiatrist in July 2008,

reported in an October 2008 mental questionnaire that plaintiff had “marked

difficul[ties]” in maintaining social functioning; often experienced deficiencies in

concentration, persistence, and pace resulting in a failure to complete tasks in a

timely manner; and had marked difficulty making and getting along with friends

and holding a job. Dr. Riascos also reported that plaintiff would be absent from




                                            4
work “more than three times a month.” Tr. 346. He described plaintiff’s prognosis

as “poor.” Tr. 348.

      Plaintiff asserts that the ALJ substituted his own medical judgment for these

expert opinions in concluding that “substantial evidence revealed [plaintiff’s]

condition stabilized and at the most, he had moderate symptoms.” Tr. 20. We

disagree. Although the ALJ’s conclusion may not perfectly correspond with any of

the opinions of medical sources cited in his decision, he was entitled to weigh all of

the evidence available to make an RFC finding that was consistent with the record

as a whole. See Richardson v. Perales, 402 U.S. 389, 399 (1971) (“We therefore are

presented with the not uncommon situation of conflicting medical evidence. The

trier of fact has the duty to resolve that conflict.”). As the ALJ explained in his

opinion, his RFC assessment took account of the opinions of all of these experts and

the notes of other treatment providers, including providers at Elmhurst Hospital,

where plaintiff received outpatient care in 2007 and 2008.

      Plaintiff argues also that the ALJ’s decision is inconsistent with 20 C.F.R.

§ 416.945(b) and (c), which provide that a claimant’s RFC must reflect his ability to

perform work on a “regular and continuing basis.” Plaintiff argues that in

determining that he was able to work, the ALJ ignored the episodic nature of

bipolar disorder and cherry-picked evidence of plaintiff’s “good days” without regard

to the plaintiff’s severely fluctuating symptoms. Appellant’s Br. at 39.

      We recognize that a person suffering from bipolar disorder may be vulnerable

to “violent mood swings” resulting in “better days and worse days,” and that a

claimant’s stability on some days does not necessarily support the conclusion that


                                           5
he is able to work every day. See Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir.

2008). Nonetheless, substantial evidence in the record supports the ALJ’s

conclusion that this plaintiff, with the proper treatment, could perform work on a

regular and continuing basis.

      To be sure, plaintiff’s condition during the period from January 2007 to

January 2009 was not always stable. Plaintiff self-reported manic thoughts in July

2007, and in October 2007, after he stopped taking his medication in preparation for

a computer exam plaintiff was twice hospitalized as a consequence of manic

symptoms. The ALJ observed, however, that plaintiff’s condition deteriorated only

after he stopped taking his medication, and that his condition quickly improved

with treatment. Furthermore, the ALJ pointed to numerous treatment notes made

by providers at Elmhurst Hospital during the two-year period from 2007 until 2009.

The treatment notes support the ALJ’s conclusion that plaintiff was stable and

responded well to treatment. There is substantial record evidence to support the

ALJ’s determination.

      Plaintiff also argues that the ALJ gave insufficient weight to the opinion of

Dr. Riascos, plaintiff’s treating psychiatrist from August through October 2008.

“[T]he opinion of a claimant’s treating physician as to the nature and severity of the

impairment is given ‘controlling weight’ so long as it ‘is well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in [the] case record.’” Burgess v. Astrue, 537 F.3d

117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527 (d)(2)). But the opinion of a

treating physician need not be given controlling weight when it is “not consistent


                                          6
with other substantial evidence in the record, such as the opinions of other medical

experts.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam).

      For the reasons explained by the district court, we conclude that the ALJ did

not commit reversible error by discounting Dr. Riascos’s opinion. See Matta v.

Astrue, No. 10-cv-5338, 2011 WL 4975841, at *2 (E.D.N.Y. Oct. 19, 2011). As

explained above, “Riascos’s assessment covers only one period of Matta’s extended

illness, and . . . [the] other psychiatric specialists [who] worked closely with Matta

during his frequent visits to Elmhurst Hospital” reported that plaintiff “responded

to medication and group therapy.” Id. The ALJ provided sufficient reasons for

departing from Dr. Riascos’s opinion, see Clark v. Comm’r of Soc. Sec., 143 F.3d

115, 118 (2d Cir. 1998), and his decision is supported by substantial evidence.

      We have considered plaintiff’s remaining arguments and find them to be

unpersuasive. Accordingly, the judgment of the district court is AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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