17-643-cv
Rusin 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
“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
26th day of February, two thousand eighteen.

PRESENT:             BARRINGTON D. PARKER,
                     PETER W. HALL,
                     RAYMOND J. LOHIER, JR.,

                                    Circuit Judges.
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DAVID RUSIN,
                           Plaintiff-Appellant,

                           v.                                                   No. 17-643-cv

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

                           Defendant-Appellee.
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For Appellant:                                           MICHAEL CONFUSIONE, Hegge & Confusione,
                                                         LLC, Mullica Hill, New Jersey.

For Appellee:                                            LAUREN E. MYERS, Special Assistant United
                                                         States Attorney (Stephen P. Conte, Regional
                                                         Chief Counsel—Region II, Office of the General
                                                         Counsel of the Social Security Administration, on
                                                         the brief), for James P. Kennedy, Jr., United States
                                                         Attorney for the Western District of New York,
                                                         New York, New York.
        Appeal from a judgment of the United States District Court for the Western District of New

York (Telesca, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on January 10, 2017, is AFFIRMED.

        David Rusin (“Rusin”) appeals from the district court’s affirmance of the Social Security

Commissioner’s (the “Commissioner”) denial of disability insurance benefits.     We review the

administrative record de novo to determine whether the Commissioner applied the proper legal

standards and whether the Commissioner’s decision is supported by substantial evidence. See

Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010); see also 42 U.S.C. § 405(g).    “Substantial

evidence is ‘more than a mere scintilla’ and ‘means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d

Cir. 2015) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “If evidence is

susceptible to more than one rational interpretation, the Commissioner’s conclusion must be

upheld.” McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014). In undertaking this review,

we assume the parties’ familiarity with the facts and procedural history, which we reference only

as necessary to explain our decision to affirm the district court’s decision.

   I.       Treating Physician Opinion

        Rusin submits that the administrative law judge (“ALJ”) violated the treating physician

rule by assigning minimal weight to the opinion of Rusin’s treating psychiatrist, Dr. Thomas

Letourneau.     Generally, “the opinion of a claimant’s treating physician as to the nature and

severity of the impairment is given ‘controlling weight’ so long as it ‘is well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the



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other substantial evidence in [the] case record.’” Burgess v. Astrue, 537 F.3d 117, 128 (2d. Cir.

2008) (quoting 20 C.F.R. § 404.1527(d)(2)).       The ALJ did not err in declining to afford Dr.

Letourneau’s opinion controlling weight because his opinion is inconsistent with his treatment

notes and diagnostic observations, the other medical opinion evidence, and Rusin’s reported

activities of daily living. See 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart, 362 F.3d 28, 32

(2d Cir. 2004) (finding that a treating physician’s opinion is not afforded controlling weight if the

opinion is inconsistent with the opinions of other medical experts).      Indeed, Dr. Letourneau’s

opinion is supported by the record only to the extent Dr. Letourneau concluded that Rusin does

not have the capacity to return to work as a corporate executive.

   II.      The ALJ’s Duty to Recontact Dr. Letourneau

         Rusin contends that the ALJ had a duty to recontact Dr. Letourneau to resolve any

inconsistencies between Dr. Letourneau’s treatment notes and his disability opinion. Rusin did

not make this argument before the district court and has, therefore, waived his ability to pursue

this argument on appeal. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); see also

Stanton v. Astrue, 370 F. App’x 231, 233 (2d Cir. 2010) (finding that the claimant waived her right

to challenge the ALJ’s Step Two findings by not raising the argument before the district court).

To the extent this argument is reviewable, the ALJ was under no obligation to recontact Dr.

Letourneau where there were no obvious gaps in the administrative record and the ALJ possessed

Rusin’s complete medical history.       Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999)

(“[W]here there are no obvious gaps in the administrative record, and where the ALJ already

possesses a ‘complete medical history,’ the ALJ is under no obligation to seek additional

information in advance of rejecting a benefits claim.” (quoting Perez v. Chater, 77 F.3d 41, 48 (2d



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Cir. 1996)).

   III.      Independent Psychiatrist Review

          Rusin argues that because the ALJ declined to afford Dr. Letourneau’s opinion controlling

weight, the ALJ was required to have an independent psychiatrist review the record and offer an

opinion.     As he conceded at oral argument, Rusin did not raise this argument before the district

court and therefore has also waived his ability to pursue this argument on appeal.    Poupore, 566

F.3d at 306.     To the extent this argument is reviewable, it lacks merit.   The record contains a

review by a state agency psychologist, E. Kamin, who concluded that Rusin has mild limitations

in activities of daily living, social functioning, concentration, persistence, and pace. This opinion

is consistent with the ALJ’s residual functional capacity assessment.

   IV.       The ALJ’S Step Three Analysis

          Rusin submits that the ALJ erred in concluding that he does not have an impairment or

combination of impairments that meets or medically equals the severity of one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Specifically, Rusin argues that he is

disabled under Listing 12.04.

          Again, Rusin did not make this argument before the district court and thereby has waived

pursuing it on appeal. Poupore, 566 F.3d at 303.      To the extent this argument is reviewable, the

ALJ’s conclusion that Rusin did not meet the 12.04 Listing is supported by substantial evidence

in the record.    Rusin testified that he can engage in activities of daily living, and there is no

evidence that Rusin has experienced any extended episodes of decompensation. Accordingly,

Rusin does not meet the 12.04 Listing under either Paragraph B or Paragraph C criteria.       See 20

C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.



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   V.       The ALJ’s Disability Determination

         Finally, Rusin faults the ALJ’s adverse credibility finding.    To evaluate a claimant’s

credibility, the ALJ is required to take a claimant’s reports of limitations into account, 20 C.F.R.

§ 416.929(a), but the ALJ is “not required to accept the claimant’s subjective complaints without

question,” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Importantly, it is the function of the

Commissioner, not the reviewing court, 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).

         The ALJ’s evaluation of Rusin’s credibility is supported by substantial evidence.       To

begin, the objective medical evidence does not demonstrate that Rusin’s symptoms are as severe

as he alleges.   Rusin was examined by multiple mental health professionals who consistently

noted that Rusin had normal speech, logical thoughts, intact cognitive functioning and memory,

fair judgment, and normal attention.   The medical evidence demonstrates that Rusin’s condition

precludes him from returning to work as a corporate president but does not prevent him from

engaging in unskilled or semiskilled work.

         Rusin’s subjective complaints also lack support from his testimony.    Rusin reported that

he cooked simple meals daily, left the house daily, can drive, and shopped for groceries every two

weeks.    At the hearing, Rusin testified that he performed repairs for his mother about once every

three months, walked for exercise, spent time with his friends but not on a regular basis, watched

documentaries, and paid bills.   Additionally, Rusin testified that he gave an opinion to Harvard’s

Endowment on whether to make certain investments, was on the president’s circle for the

Rochester Institute of Technology, and advised lawyers and accountants on the viability of

companies based on his expertise. These activities of daily living are inconsistent with Rusin’s



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complaints of total debilitation.

         We have considered Rusin’s remaining arguments on appeal and find them to be without

merit.   We AFFIRM the judgment of the district court.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk of Court




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