14-333-cv
Rivera 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
5th day of February, two thousand fifteen.

Present:    PIERRE N. LEVAL,
            ROSEMARY S. POOLER,
                        Circuit Judges.
            J. GARVAN MURTHA,1
                        District Judge.
_____________________________________________________

CHARLMERS RIVERA,

                              Plaintiff-Appellant,

                      v.                                            14-333-cv

CAROLYN W. COLVIN,

                        Defendant-Appellee.
__________________________________________

Appearing for Appellant:      Lewis L. Schwartz, PLLC, Buffalo, N.Y.

Appearing for Appellee:       Daniel R. Janes, Special Assistant U.S. Attorney, Office of the
                              General Counsel Social Security Administration, New York, NY
                              (Stephen P. Conte, Regional Chief Counsel - Region II Office of
                              the General Counsel Social Security Administration; William J.

                              Hochul, Jr., United States Attorney for the Western District of


         1
       The Honorable J. Garvan Murtha, United States District Court for the District of
Vermont, sitting by designation.
New                                  York, Buffalo, N.Y., on the brief)

Appeal from the United States District Court for the Western District of New York (Skretny, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Charlmers Rivera appeals from the January 24, 2014 judgment of the United States
District Court for the Western District of New York (Skretny, J.) adopting the report and
recommendation of the magistrate judge (Foschio, M.J.) upholding the March 17, 2012 decision
of the Commissioner of Social Security denying Rivera benefits for the time period of February
15, 2006 through August 20, 2010. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

        Rivera first argues that subsequent medical evidence and an April 2014 decision by a
different administrative law judge (“ALJ”) granting his application for disability benefits from
August 21, 2010 forward presents new and material evidence requiring a remand for further
proceedings. Pursuant to 42 U.S.C. § 405(g), “[t]he court . . . may at any time order additional
evidence to be taken before the Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding . . ..” Id. In Tirado v. Bowen, our Court
summarized the three-part showing required by this provision:

               [A]n appellant must show that the proffered evidence is (1) new
               and not merely cumulative of what is already in the record, and
               that it is (2) material, that is, both relevant to the claimant’s
               condition during the time period for which benefits were denied
               and probative. The concept of materiality requires, in addition, a
               reasonable possibility that the new evidence would have
               influenced the Secretary to decide claimant’s application
               differently. Finally, claimant must show (3) good cause for her
               failure to present the evidence earlier.

842 F.2d 595, 597 (2d Cir. 1988) (internal quotation marks omitted).

       Rivera cannot make the necessary showing, as the April 2014 decision rests on specific
findings that Rivera’s condition grew worse after August 2010, particularly with regard to his
back, anxiety and post-traumatic stress disorder. The subsequent award of benefits reflected a
worsening of his condition, not a different assessment of the same evidence considered in the
August 2010 denial of benefits. See, e.g., Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 127 (2d
Cir. 2012) (rejecting sufficiency of the evidence challenge based in part on later favorable
decision on claimant’s reapplication for benefits, as “the favorable ruling in 2009 was based on
evidence not in the record on the original application, related in part to different impairments
than those at issue in the original application, and expressly stated that the ALJ saw no basis for

reopening the original application. The ALJ’s 2009 ruling therefore does not bolster Cage’s
claim that the 2008 ruling was not supported by substantial evidence.”).

                                                 2
        Rivera next argues that in denying him benefits, the ALJ failed to properly weigh
disability determinations made by the Veteran’s Administration (“VA”) in decisions issued on
March 3, 2009, and April 15, 2010. Disability decisions by other governmental agencies are not
binding on the ALJ, but are “entitled to some weight and should be considered.” Hughes v.
Heckler, 598 F. Supp. 765, 767 (W.D.N.Y. 1984); see also Cutler v. Weinberger, 516 F.2d 1282,
1286 (2d Cir. 1975) (“While the determination of another governmental agency that a social
security disability benefits claimant is disabled is not binding on the Secretary, it is entitled to
some weight and should be considered.”). Here, the ALJ considered the March 2009
determination of the VA assessing Rivera’s anxiety disorder as 70 percent disabling, but found
that the medical evidence did not support a finding of severe anxiety or PTSD because the VA
determination relied heavily on Rivera’s subjective complaints rather than objective medical
findings. The ALJ also referenced the April 15, 2010 VA decision, which noted the 70 percent
anxiety rating and stated his disc herniation was increased to 20 percent disabling. However, the
ALJ noted that the April 2010 decision found Rivera’s back condition “does not inhibit your
activities of daily living such as bathing, dressing and eating. However, you do report having
limitations with traveling, and exercise.” Contrary to Rivera’s arguments, both decisions were
considered, and it cannot be said that the ALJ’s decision not to afford them more weight is an
error.

        Finally, we find sufficient evidence in the record to support the ALJ’s denial of benefits.
At step two, the ALJ found that Rivera’s anxiety and PTSD were not severe impairments.
Rivera argues this conclusion is not supported by the record, as he was diagnosed with both
anxiety and PTSD. However, even assuming that the ALJ erred at step two, this error was
harmless, as the ALJ considered both Rivera’s severe and non-severe impairments as he worked
through the later steps. The ALJ discussed whether the mental impairments met a listing at step
three and considered his mental impairments as part of the residual functional capacity finding.

       We have considered the remainder of Rivera’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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