    09-3378-cv
    Rutkowski v. Astrue



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
ORDER FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY ORDER
IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRO NIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY
ORDER M UST 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 4th day of March, two thousand ten.

    PRESENT:
                AMALYA L. KEARSE,
                PETER W. HALL,
                            Circuit Judges.
                JED S. RAKOFF,
                            District Judge.*
    __________________________________________

    Mark Rutkowski,

                           Plaintiff-Appellant,

                    v.                                                  09-3378-cv

    Michael J. Astrue, Commissioner of Social Security,

                      Defendant-Appellee.
    __________________________________________




            *
              The Honorable Jed. S. Rakoff, of the United States District Court for the Southern
    District of New York, sitting by designation.

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FOR APPELLANT: MARK CURLEY ; Law Offices of Mark Curley, Esq.; New York, NY (Mark
               Schneider; Law Offices of Mark Schneider, Esq.; Plattsburgh, NY, on the
               brief).

FOR APPELLEE:          SOMMATTIE RAMRUP , Special Assistant United States Attorney, New York,
                       NY (Andrew T. Baxter, United States Attorney for the Northern District of
                       New York; Stephen P. Conte, Acting Chief Counsel - Region II, Office of the
                       General Counsel, Social Security Administration, Of Counsel, on the brief).


       Appeal from a judgment of the United States District Court for the Northern District of New

York (McAvoy, J.). UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Mark Rutkowski appeals from the district court’s July 23, 2009 order

affirming a final determination of the Commissioner of Social Security denying him supplemental

security income (“SSI”) benefits. We assume the parties’ familiarity with the facts, procedural

history, and specification of issues on appeal.

       To be eligible for SSI, a claimant must show an inability “to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which can

be expected to result in death or which has lasted or can be expected to last for a continuous period

of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Commissioner is required to

perform a five-step sequential analysis to determine whether an individual is disabled for purposes

of receiving SSI. See 20 C.F.R. § 416.920. In reviewing a final determination of the

Commissioner, courts consider only whether the conclusions made are supported by substantial

evidence in the record and whether the correct legal standard was applied. Lamay v. Comm’r of

Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009); see also 42 U.S.C. § 405(g).




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1.     Adequacy of administrative hearings

       Rutkowski first argues that he did not receive an adequate administrative hearing because he

did not knowingly and voluntarily waive his right to representation, and because the administrative

law judge (“ALJ”) failed to develop the record fully.

       A.      Disclosure requirements

       The Commissioner is required to notify claimants in writing of the option to retain an

attorney to be present at hearings, and of the availability of free legal services. 42 U.S.C.

§ 1383(d)(2)(D); see also 20 C.F.R. §§ 404.1705, 404.1706. The ALJ must also ensure, at the

hearing itself, that the claimant is aware of these rights. Lamay, 562 F.3d at 507. This Court

recently declined to mandate anything more than these statutory and regulatory disclosure

requirements. See id. at 507-08.

       To the extent that Rutkowski argues that he did not receive an adequate hearing because he

was not aware of his right to be represented, this argument is foreclosed by this Court’s holding in

Lamay. Id. at 509-10. In addition to numerous other notifications, the Commissioner satisfied all

the disclosure requirements in its initial Notice of Disapproved Claim. The ALJ also verbally told

Rutkowski of his right to representation and the availability of free legal services during the initial

and supplemental hearings. Thus, substantial evidence supports the finding that Rutkowski

knowingly and voluntarily waived his right to representation.

       B.      The ALJ’s duty to develop the record

       Rutkowski next makes a related argument that the ALJ failed to develop the record fully. In

light of the non-adversarial nature of social security proceedings, the ALJ has a “‘duty to investigate

and develop the facts and develop the arguments both for and against the granting of benefits.’”



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Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004) (quoting Seavey v. Barnhart, 276 F.3d 1, 8 (1st

Cir. 2001)). These duties are heightened when a claimant waives his right to representation and

proceeds pro se. Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990).

       The record clearly shows that the ALJ discharged his duties to develop the facts and

arguments to ensure a proper disposition of the case. In addition to reports from Dr. Krag, who

performed surgery on Rutkowski two days after his initial injury, and Dr. Sherman, his primary

physician, the ALJ requested records from five other medical sources. The ALJ at two hearings

questioned Rutkowski in detail about his education, prior work experience, medical history, daily

activities and physical limitations. A vocational expert questioned him in more detail about his

work experience and the type of work he could do, and the ALJ gave Rutkowski the opportunity to

cross-examine the expert. Thus, the ALJ fulfilled his duty to develop sufficiently the record.

2.     Listing of impairments

       Rutkowski next argues that substantial evidence does not support the ALJ’s determination

that his impairments do not meet the criteria of Listing 1.04A in 20 C.F.R. pt. 404, subpt. P, app. 1

(disorders of the spine with evidence of nerve root compression). As support for this contention,

Rutkowski points to an Essex County Department of Social Services report, which determined that

his impairments do in fact meet the criteria of Listing 1.04. Rutkowski, then represented by

counsel, submitted the report to the Appeals Council following the adjudication of his claim before

the ALJ. While evidence submitted to the Appeals Council becomes part of the administrative

record, Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996), the Appeals Council, in reviewing a decision

based on an application for benefits, will consider new evidence only if (1) the evidence is material,

(2) the evidence relates to the period on or before the ALJ’s hearing decision, and (3) the Appeals



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Council finds that the ALJ’s decision is contrary to the weight of the evidence, including the new

evidence. 20 C.F.R. § 416.1470.

       While the evidence relates to the period before the ALJ’s decision, it does not add so much

as to make the ALJ’s decision contrary to the weight of the evidence. The Essex County report is a

conclusory one-page document that states little more than that Rutkowski “meets listing 1.04.” The

report does not state which of the three subsections in Listing 1.04 Rutkowski’s impairments

satisfy, and does not explain the facts or reasoning that led to this determination. The Appeals

Council did not err in refusing to review the decision.

3.     Residual functional capacity

       Rutkowski next argues that substantial evidence does not support the ALJ’s determination of

his residual functional capacity (“RFC”). A claimant’s RFC is the most he can do in a work setting

despite his physical and mental limitations. 20 C.F.R. § 404.1545(a)(1). Light work includes lifting

no more than 20 pounds or carrying no more than 10 pounds, and may involve “a good deal of

walking or standing, or . . . sitting most of the time with some pushing and pulling of arm or leg

controls.” 20 C.F.R. § 416.967(b).

       The ALJ based his RFC determination on “the evidence in the entire record to include the

claimant’s own statements and allegations as well as those of the treating and examining

physicians.” Substantial evidence exists to support this determination. Following the initial surgery

in July 2003, Dr. Krag prescribed a lifting limit of 25 pounds. In November, the doctor raised

Rutkowski’s lifting limit to 50 pounds. In March 2004, primary treating physician Dr. Sherman,

whose opinion is controlling if it is “well-supported” and “not inconsistent with the other

substantial evidence,” 20 C.F.R. § 416.927(d)(2), indicated that Rutkowski was fit to perform light



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work. Another examination by a consulting physician in April 2004 shows that he had relatively

good mobility, full hand and finger dexterity, full spinal flexion, and full range of motion of

shoulders, arms, hips, knees, and ankles. Combined, this body of evidence substantially supports

the ALJ’s RFC determination.

4.     The ALJ’s credibility finding

       Rutkowski next contends that substantial evidence does not support the ALJ’s finding that

he was “not totally credible.” The ALJ is entitled to find a claimant not credible if his testimony

contradicts the record. Aponte v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591-92 (2d

Cir. 1984). A court must uphold the ALJ’s rejection of a claimant’s subjective complaints of pain

“[i]f the [ALJ’s] findings are supported by substantial evidence.” Id. at 591.

       In finding Rutkowski less than credible, the ALJ noted inconsistencies between allegations

made before the hearing and his testimony at the initial administrative hearing. He also noted that

substantial evidence existed showing that Rutkowski was relatively “mobile and functional,” and

that Rutkowski’s allegations of disability contradicted the broader evidence. The ALJ thus

adequately supported his credibility finding.

       We have considered Rutkowski’s remaining arguments on appeal and find them to be

without merit. Accordingly, the judgment of the district court is AFFIRMED.



                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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