13-4217-cv
Domm 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 23rd day of September, two thousand fourteen.

PRESENT:
                 JOSÉ A. CABRANES,
                 ROSEMARY S. POOLER,
                 RAYMOND J. LOHIER, JR.,
                              Circuit Judges.

_____________________________________

JANICE ELIZABETH DOMM,

                 Plaintiff-Appellant,

                          v.                                      No. 13-4217-cv

CAROLYN W. COLVIN, ACTING COMMISSIONER OF
SOCIAL SECURITY,

            Defendant-Appellee.
_____________________________________

FOR PLAINTIFF-APPELLANT:                            KENNETH R. HILLER, Law Offices of
                                                    Kenneth Hiller, PLLC, Amherst, NY.



FOR DEFENDANT-APPELLEE:                             SERGEI ADEN, Special Assistant United States
                                                    Attorney, Stephen P. Conte, Office of the
                                                    General Counsel, Social Security
                                                1
                                                           Administration, New York, NY, William J.
                                                           Hochul, Jr., United States Attorney, Western
                                                           District of New York, Buffalo, NY, on the brief.

       Appeal from a judgment of the United States District Court for the Western District of New
York (Michael A. Telesca, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court be AFFIRMED.

        Plaintiff-appellant Janice Elizabeth Domm (“Domm”) appeals from a judgment upholding
the decision of the Acting Commissioner of Social Security, Carolyn W. Colvin (the
“Commissioner”),1 that Domm was not entitled to disability benefits under the Social Security Act
(the “Act”).

        On February 5, 2010, Domm filed an application for disability insurance benefits, which was
denied. Domm then requested a hearing before an administrative law judge (“ALJ”), which took
place on August 19, 2011. On September 15, 2011, the ALJ denied Domm’s claim, finding her not
disabled under the Act. Domm requested review by the Appeals Council, which denied her request
on September 27, 2012. Domm then appealed to the District Court, which entered judgment for the
Commissioner on August 29, 2013. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

        We review a district court’s judgment on the pleadings de novo. See Jasinski v. Barnhart, 341
F.3d 182, 184 (2d Cir. 2003). Our review of a denial of social security disability benefits focuses on
the administrative ruling rather than the district court’s decision. See Halloran v. Barnhart, 362 F.3d 28,
31 (2d Cir. 2004). We evaluate whether the decision was “supported by substantial evidence,” which
means “more than a mere scintilla. . .[and as much as] a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation marks omitted). Once an ALJ finds facts, the court
“can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec.
Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (citations and internal quotation marks omitted). In
deciding whether substantial evidence exists, the court “defer[s] to the Commissioner’s resolution of
conflicting evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012). We also determine
whether incorrect legal standards were applied. See Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir.
2013).

        To qualify for social security benefits, a claimant must prove “disability,” which is defined as
the “inability to engage in any substantial gainful activity by reason of any medically determinable

        1
          Carolyn W. Colvin became the Acting Commissioner of Social Security in February 2014, and
accordingly is the appellee in this action. When we refer to the “Commissioner,” we refer to the office and to
its occupant at the relevant time.
                                                      2
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 12 months.” 42 U.S.C. § 423(d)(1)(A). A
claimant is considered disabled if his or her physical and/or mental impairment prevents him or her
from engaging not only in prior work, but also in any suitable work that exists in the national
economy. Id. § 423(d)(2)(A).

        A Social Security Administration regulation promulgated by the Commissioner created a
five-step evaluation process that is used to determine if a claimant is entitled to disability benefits.
See 20 C.F.R. § 404.1520(a)(4). Applying that process, the ALJ found that Domm retained the
residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), except
that she needed a sit/stand option; could not climb stairs or be exposed to chemicals, fumes, or
other irritants; and had to be able to be off task for five percent of the day to stabilize her sugar
levels.

        On appeal, Domm argues that the ALJ erred by not following the “treating physician rule,”
which “generally requires a measure of deference to the medical opinion of a claimant’s treating
physician.” Halloran, 362 F.3d at 31. However, “the opinion of the treating physician is not afforded
controlling weight where…the treating physician issued opinions that are not consistent with other
substantial evidence in the record, such as the opinions of other medical experts.” Id. at 32 (citing
Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)). Here, the ALJ pointed to substantial evidence
for giving the narrative statement of Domm’s treating physician, Dr. Blackburn, only probative
weight, noting that Blackburn’s restrictive assessment was inconsistent with his own treatment
notes, with the conclusions of other medical experts, and with Domm’s testimony regarding her
daily functioning.

         However, we remind the Commissioner that where a treating physician’s opinion is not
given controlling weight, the regulations direct the ALJ to explain in the decision the weight given to
the opinions of nonexamining state agency consultants, treating sources, nontreating sources, and
other nonexamining sources. 20 C.F.R. § 404. 1527(e)(2)(ii). Here, the ALJ gave the opinion of
Domm’s consulting physician, Dr. Boehlert, significant weight. As we have previously cautioned,
“ALJs should not rely heavily on the findings of consultative physicians after a single examination.”
Selian v. Astrue, 708 F.3d 409, 419 (2d Cir. 2013); Cruz v. Sullivan, 912 F.2d 8, 13 (2d Cir. 1990).

         Domm also alleges that the ALJ erred by failing to make a function-by-function assessment
of her limitations. But, as we have noted, “[w]here an ALJ’s analysis…regarding a claimant’s
functional limitations and restrictions affords an adequate basis for meaningful judicial review,
applies the proper legal standards, and is supported by substantial evidence such that additional
analysis would be unnecessary or superfluous, … remand is not necessary merely because an explicit
function-by-function analysis was not performed.” Cichocki, 729 F. 3d at 177.



                                                   3
        Having conducted a plenary review of the administrative record, we conclude that the
Commissioner’s decision was supported by substantial evidence, and did not involve an incorrect
application of legal standards. We affirm, substantially for the reasons articulated by the District
Court in its Decision and Order. See Domm v. Colvin, No. 12 Civ. 6640, 2013 WL 4647643 (W.D.N.Y.
Aug. 29, 2013).

                                         CONCLUSION

       We have considered all of Domm’s arguments on appeal and find them to be without merit.
Accordingly, we AFFIRM the August 29, 2013 decision of the District Court.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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