10-3077-cv
Wavercak v. Astrue

             UNITED STATES COURT OF APPEALS
                 FOR THE SECOND CIRCUIT

                         SUMMARY ORDER
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"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
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 25th day of April, two thousand eleven.

PRESENT:    AMALYA L. KEARSE,
            DENNY CHIN,
                           Circuit Judges.
            JED S. RAKOFF,
                           District Judge.*

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MICHAEL P. WAVERCAK,
          Plaintiff-Appellant,

            -v.-                                      10-3077-cv

MICHAEL J. ASTRUE,
Commissioner of Social Security,
          Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:                  JAYA A. SHURTLIFF, Syracuse,
                                          New York.




      *
          Hon. Jed S. Rakoff, United States District Judge for
the Southern District of New York, sitting by designation.
FOR DEFENDANT-APPELLE:                 MARIA FRAGASSI-SANTANGELO,
                                       Special Assistant United
                                       States Attorney (Stephen P.
                                       Conte, Chief Counsel, Region
                                       II Office of the General
                                       Counsel, Social Security
                                       Administration, on the brief),
                                       for Richard S. Hartunian,
                                       United States Attorney for the
                                       Northern District of New York,
                                       Syracuse, New York.

          Appeal from an order of the United States District

Court for the Northern District of New York (Sharpe, J.) entered

on June 25, 2010, affirming a decision of the Commissioner of

Social Security (the "Commissioner") denying plaintiff-appellant

Michael P. Wavercak's claim for Social Security Disability

Insurance Benefits ("DIB") for March 21, 1998 through June 13,

2000.
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is AFFIRMED.

          We assume the parties' familiarity with the facts and

procedural history of the case and the issues presented for

review, which we summarize as follows:

          In November 1998, Wavercak applied for DIB under the

Social Security Act (the "Act"), alleging disability since March

21, 1998 based on injuries sustained in a car accident.      After

his application was denied, Wavercak unsuccessfully challenged

the decision at a December 1999 hearing before Administrative Law

Judge ("ALJ") John R. Tarrant.

          Wavercak, who complained of frequent headaches, a disc

herniation, neck, shoulder, and arm problems, and later a sleep

disorder, then proceeded to exhaust his administrative remedies


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in disputing the ALJ's denial of his requested benefits.

Eventually, Wavercak commenced a civil action that resulted in an

order of the Northern District of New York (Mordue, J.) entered

on June 8, 2004, remanding the case to the Social Security

Administration (the "SSA") Appeals Council (the "Appeals

Council") for further administrative proceedings.   The Appeals

Council vacated the ALJ's decision and remanded the matter, and

it was heard by a different ALJ.

           In March 2005, ALJ Michael Brounoff held a hearing

where Wavercak and an independent vocational expert testified.

Eight months later, ALJ Brounoff denied Wavercak's application in

an order that became the Commissioner's final ruling.     Wavercak

commenced the present action in May 2007 seeking review of this

ruling.   In June 2010, the district court affirmed the

Commissioner's finding that Wavercak was not disabled within the

meaning of the Act.

           On appeal, Wavercak argues that the ALJ committed

reversible error by: (1) concluding that Wavercak's purported

sleep apnea was not a severe impairment; (2) failing to give his

treating physician's opinion controlling weight; (3) improperly

discounting Wavercak's pain testimony as not "entirely credible";

and (4) relying on the testimony of a vocational expert whose

opinion was allegedly based on a flawed assessment of Wavercak's

residual functional capacity ("RFC").

           We address each argument in turn, and "review the

administrative record de novo to determine whether there is

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substantial evidence supporting the Commissioner's decision and

whether the Commissioner applied the correct legal standard."

Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002).

"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)(internal quotation marks omitted).
     1.   Severe Impairment Analysis

          Wavercak first argues that the ALJ erred by failing to

recognize that his sleep apnea constituted a severe impairment

within the meaning of the SSA regulations.   The argument fails.

Contrary to Wavercak's contention, the ruling and the transcript

of the hearing make clear that ALJ Brounoff considered the

"combined effect of all of [Wavercak's] impairments" in

concluding that his alleged sleep apnea did not constitute a

severe impairment during the relevant period.   42 U.S.C. §

423(d)(2)(B); accord 20 C.F.R. § 404.1523.
          At the March 2005 hearing, for example, when asked to

explain how sleep apnea affected him during the time in question,

Wavercak responded that his fatigue and day-time drowsiness were

caused more by the pain in his neck than from any sleep disorder.

When the ALJ asked Wavercak to point to a medical exhibit in the

record that documented the presence of sleep apnea before June

13, 2000, Wavercak was unable to do so.   Because there is

substantial evidence in the record to support the ALJ's

determination with regard to Wavercak's purported sleep apnea, it

will not be disturbed.

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     2.    The Treating Physician Rule

           Next, Wavercak asserts that the ALJ applied the

treating physician rule improperly by not affording Dr.

Eppolito's opinion -- that Wavercak was unable to perform

sedentary work -- controlling weight.    This argument is

unavailing.   An ALJ is not required to give deference to a

claimant's treating physician's opinion where that opinion, as

here, is "not consistent with other substantial evidence in the

record."   Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).

           Dr. Eppolito's assessments were called into question by

other medical evidence in the record, including his own earlier

reports which did not always conclude that Wavercak was unable to

engage in any sedentary work during the relevant period.     While

an ALJ may not reject a treating physician's disability opinion

based "solely" on internal conflicts in the doctor's clinical

findings, Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998), here
the record contains other medical opinions also at odds with a

conclusion that Wavercak was precluded from any form of

employment.   For example, one physician who examined Wavercak

concluded that he had no gross limitations to sitting, standing,

walking, or climbing, and only mild to moderate limitations in

the amount he could lift, carry, push, and pull.    In addition,

Dr. Eppolito's assessments conflicted with Wavercak's description

of his daily activities.   Accordingly, the ALJ was not required

to defer to Dr. Eppolito's opinion.   See 20 C.F.R. §§

404.1527(d)(2)(i)-(ii), (d)(3)-(6) (explaining that deference

accorded to treating physician's opinion may be reduced based on


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consistency of opinion with rest of medical record, and any other

elements "which tend to . . . contradict the opinion").
     3.   Credibility Assessment

          Wavercak also argues that by finding his testimony "not

entirely credible," the ALJ failed to give proper weight to his

strong work history.   In reviewing this challenge, we note that

"[i]t is the function of the [Commissioner], not ourselves, . . .

to appraise the credibility of witnesses, including the

claimant."   Carroll v. Sec'y of Health & Human Servs., 705 F.2d

638, 642 (2d Cir. 1983).

          To be sure, "a good work history may be deemed

probative of credibility."   Schaal v. Apfel, 134 F.3d 496, 502
(2d Cir. 1998); see also Rivera v. Schweiker, 717 F.2d 719, 725

(2d Cir. 1983) (noting that evidence of good work record is

evidence of credibility).    Work history, however, is "just one of

many factors" appropriately considered in assessing credibility.

Schaal, 134 F.3d at 502.

          In rejecting Wavercak's testimony as to the severity of

his impairment, the ALJ reasonably relied on contrary evidence in

the record, including extensive testimony and treatment notes

from numerous physicians.    These reports encompassed those from

treating sources who stated that Wavercak could perform work --

at least at a light duty level.    The ALJ's conclusion is also

consistent with the claimant's own account of his participation

in a range of daily activities during the period in question,

including cleaning, cooking, driving, picking up his son at

school, reading, shopping, as well as visiting friends and

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family.     See 20 C.F.R. § 404.1529(c)(3)(i).    On this record, we

identify no error in the ALJ's credibility assessment.

             Further, the ALJ did not ignore Wavercak's work

history.     To the contrary, the ALJ was well-aware of Wavercak's

17-year employment as a warehouse worker for a food distributing

company, and considered this in the disability analysis when he

concluded that Wavercak's RFC for light work prevented him from

performing the medium demands of his past warehouse work.       That

Wavercak's good work history was not specifically referenced in

the ALJ's decision does not undermine the credibility assessment,

given the substantial evidence supporting the ALJ's

determination.
       4.    Vocational Expert

             Finally, Wavercak contends that the ALJ erred in

relying on the testimony of a vocational expert because the

expert's opinion was based on a flawed assessment of Wavercak's

RFC.    Because we have already concluded that substantial record

evidence supports the RFC finding, we necessarily reject

Wavercak's vocational expert challenge.       See generally Butts v.

Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)(noting that

Commissioner may rely on testimony of vocational expert).
                                 CONCLUSION

             We have considered all of Wavercak's other contentions

on appeal and have found them to be without merit.       For all the

reasons stated, the judgment of the district court is AFFIRMED.


                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, CLERK




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