16-1692-cv,
Solis v. Berryhill

                     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 ASUMMARY 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 June, two thousand seventeen.

PRESENT:
         AMALYA L. KEARSE,
         DENNIS JACOBS,
         DEBRA ANN LIVINGSTON,
              Circuit Judges.
_____________________________________

FRANCISCO SOLIS,
              Plaintiff-Appellant,

             v.                                                    16-1692

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,*
              Defendant-Appellee.
_____________________________________



*
  Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Acting Commissioner Nancy A. Berryhill is automatically
substituted for former Commissioner Carolyn Colvin as
Defendant.
FOR PLAINTIFF-APPELLANT:      FRANCISCO SOLIS, pro se, Danbury,
                              CT.

FOR DEFENDANT-APPELLEE:       KATHRYN POLLACK, Special
                              Assistant United States Attorney
                              (Stephen P. Conte, Regional Chief
                              Counsel—Region II, Office of the
                              General Counsel, Social Security
                              Administration, on the brief),
                              for Deirdre M. Daly, United States
                              Attorney for the District of
                              Connecticut, New Haven, CT.

     Appeal from a judgment of the United States District Court
for the District of Connecticut (Thompson, J.; Merriam, M.J.).

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

     Francisco Solis, pro se, appeals the district court’s
decision upholding the Commissioner of Social Security’s denial
of disability insurance benefits. We assume the parties=
familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal.

     We “conduct a plenary review of the administrative record
to determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner’s decision and
if the correct legal standards have been applied.” Burgess v.
Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation
marks omitted). Applying the substantial-evidence standard
means that “once an [administrative law judge (“ALJ”)] finds
facts, we can reject those facts only if a reasonable factfinder
would have to conclude otherwise.” Brault v. Soc. Sec. Admin.,
683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks
omitted; emphasis omitted).

     Upon such review, we conclude that the district court
correctly determined that the ALJ applied the proper legal
standards, and that the determination that Solis was not
disabled between September 1, 2009 (Solis’s alleged disability
onset date) and September 30, 2009 (the last date on which he
was insured) was supported by substantial evidence. As the
magistrate judge correctly determined in her report and

                               2
recommendation, the evidence showed that Solis was capable of
performing jobs that existed within the national and local
economies. See 42 U.S.C. § 423(d)(2)(A) (disability must be
“of such severity that [an individual] is not only unable to
do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national economy”).
Accordingly, we affirm for substantially the same reasons
stated in the magistrate judge’s November 2015 report, which
was adopted in full by the district court.

     The only objection to the magistrate judge’s report that
Solis raised (through counsel) was that he met the requirements
of Listing 11.14 (peripheral neuropathy), which was not
specifically addressed by the ALJ. All other arguments are
therefore waived given, at the conclusion of her report, the
magistrate judge expressly warned that failure to object “may
preclude appellate review.” Comm’r’s App’x at 54. See United
States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 38 (2d Cir.
1997) (“We have adopted the rule that failure to object timely
to a magistrate judge’s report may operate as a waiver of any
further judicial review of the decision, as long as the parties
receive clear notice of the consequences of their failure to
object.”). Although we may excuse the failure in the interest
of justice, id. at 39, we decline to exercise our discretion
to do so here, as the record reflects no injustice that would
be remedied by reaching the merits of Solis’s waived arguments.

     Solis’s challenge to the ALJ’s listing determination is
meritless. Although the ALJ did not explicitly discuss Listing
11.14, his general conclusion (that Solis did not meet a listed
impairment) is supported by substantial evidence. See Berry
v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982) (per curiam)
(“[T]he absence of an express rationale does not prevent us from
upholding the ALJ’s determination regarding appellant’s
claimed listed impairments, since portions of the ALJ’s
decision and the evidence before him indicate that his
conclusion was supported by substantial evidence.”).

     “For a claimant to qualify for benefits by showing that his
unlisted impairment, or combination of impairments, is
equivalent to a listed impairment, he must present medical
findings equal in severity to all the criteria for the one most
similar listed impairment.” Sullivan v. Zebley, 493 U.S. 521,

                               3
531 (1990) (internal quotation marks omitted; emphasis in
original). Under Listing 11.14, peripheral neuropathy is
defined as:

    A. Disorganization of motor function in two
    extremities (see 11.00D1), resulting in an extreme
    limitation (see 11.00D2) in the ability to stand up
    from a seated position, balance while standing or
    walking, or use the upper extremities; or

    B. Marked limitation (see 11.00G2) in physical
    functioning (see 11.00G3a), and in one of the
    following: 1. Understanding, remembering, or applying
    information (see 11.00G3b(i)); or 2. Interacting with
    others (see 11.00G3b(ii)); or 3. Concentrating,
    persisting, or maintaining pace (see 11.00G3b(iii));
    or 4. Adapting or managing oneself (see 11.00G3b(iv)).

20 C.F.R. § 404, Subpt. P, App. 1, § 11.14. “Extreme
limitation” refers to “the inability to stand up from a seated
position, maintain balance in a standing position and while
walking, or use your upper extremities to independently
initiate, sustain, and complete work-related activities”
without assistance. Id. § 11.00(D)(2). In contrast, “marked
limitation means that, due to the signs and symptoms of your
neurological disorder, you are seriously limited in the ability
to independently initiate, sustain, and complete work-related
physical activities.” Id. § 11.00(G)(2)(a). And “[t]he
persistent and intermittent symptoms must result in a serious
limitation in your ability to do a task or activity on a
sustained basis.” Id.

     This record demonstrates that Solis was not extremely
limited in his ability to function. Although his daughter
testified that he had difficulty standing without assistance,
Solis himself stated that he used assistive devices only for
extreme pain. Further, the evidence showed that Solis was
neither markedly nor extremely impaired. In 2009, around the
time of his disability onset date, Solis worked as a landscaper
and machinist. In 2010 and 2011, he reported that, as a part
of his daily activities, he was able to clean and repair his
home, use a tractor, drive, and run errands. The ALJ’s
conclusion that Solis did not meet any of the listed impairments
during the relevant period is therefore supported by

                               4
substantial evidence.

     We also decline to remand based on the new medical records
attached to Solis’s brief. For this Court to remand based on
new evidence, an appellant must show that “the proffered
evidence is (1) new and not merely cumulative of what is already
in the record, . . . 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, . . . [and] (3) [that
there is] good cause for [his] failure to present the evidence
earlier.” Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)
(citations and internal quotation marks omitted). Materiality
also requires “a reasonable possibility that the new evidence
would have influenced the [Commissioner] to decide claimant’s
application differently.” Id.

     The new records Solis offers are immaterial. They are from
2015 and 2016, well after the time period at issue here.
Further, the records do not “disclose the severity and
continuity of impairments existing before the earning
requirement date or [] identify additional impairments which
could reasonably be presumed to have been present.” Pollard
v. Halter, 377 F.3d 183, 194 (2d Cir. 2004) (quoting Lisa v.
Sec’y of Health & Human Servs., 940 F.2d 40, 44 (2d Cir. 1991)).
They chiefly concern treatments Solis received after a 2015 car
accident, and, to the extent they discuss his medical history,
they mention symptoms, conditions, and observations that are
similar to those in the medical records considered by the ALJ.

     We have considered all of Solis’s remaining arguments and
find them to be without merit. Accordingly, the judgment of
the district court is hereby AFFIRMED.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




                               5
