12-1412
Pellam v. Astrue

                            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
28th day of January, two thousand thirteen.

Present:
         AMALYA L. KEARSE,
         ROBERT A. KATZMANN,
         RAYMOND J. LOHIER, JR.,
                     Circuit Judges.
________________________________________________

DAWN PELLAM,

           Plaintiff-Appellant,

                   v.                                           No. 12-1412

MICHAEL J. ASTRUE, Commissioner of Social Security,

         Defendant-Appellee.
________________________________________________

For Petitioner-Appellant:         JAYA SHURTLIFF, Law Offices of Kenneth Hiller, PLLC,
                                  Amherst, N.Y.

For Defendants-Appellants:        JOANNE JACKSON, 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 William J. Hochul, Jr., United States Attorney for
                                  the Western District of New York.
       Appeal from the United States District Court for the Western District of New York
(Skretny, C.J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the decision of the district court be and hereby is AFFIRMED.

        Plaintiff-Appellant Dawn Pellam appeals from a March 27, 2012, judgment of the United

States District Court for the Western District of New York (Skretny, C.J.), which affirmed the

determination of an Administrative Law Judge (“ALJ”) that Pellam was not disabled. The ALJ

determined that Pellam was unable to perform her past work because she suffered from a spine

disorder, abdominal contusion, and migraines. However, he concluded that Pellam had the

residual capacity to perform certain functions and, thus, could perform jobs, such as a movie

ticket seller or telephone solicitor, that existed in significant numbers in the national economy.

Pellam contends that the ALJ erred by (1) rejecting the medical opinion of a consultative

examiner and assessing her residual functional capacity without relying on any expert medical

source opinion; (2) failing to apply the correct legal standards in judging her credibility; and (3)

using an incorrect analysis to determine whether she could perform other jobs in the national

economy. We assume the parties’ familiarity with the underlying facts and procedural history of

this case.

        When reviewing the denial of Social Security benefits, we “focus . . . not so much on the

district court’s ruling as . . . on the administrative ruling” by the ALJ. Rosa v. Callahan, 168

F.3d 72, 77 (2d Cir. 1999). We will “set aside an ALJ’s decision only where it is based upon

legal error or is not supported by substantial evidence.” Id. at 77 (internal quotation marks and

alteration omitted). An individual is disabled if “he is unable to engage in any substantial

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

                                                  2
. . . 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 Social Security Administration (“SSA”) has established a sequential five step

process for evaluating disability claims. As relevant to this appeal, if a claimant’s impairments

are not per se disabling under SSA regulations (and they are not here), step four requires “the

Secretary to ascertain [the claimant’s] residual functional capacity . . . . If the applicant is unable

to perform his past work, he is then evaluated at the fifth step in the process, which requires a

finding of whether, given his functional ability (RFC), age, education and past work experience,

he could perform other jobs that exist in the national economy.” State of N.Y. v. Sullivan, 906

F.2d 910, 913 (2d Cir. 1990). The claimant bears the burden of proof at steps one through four;

at step five, the SSA bears a limited burden, but “need only show that there is work in the

national economy that the claimant can do; [it] need not provide additional evidence of the

claimant’s residual functional capacity.” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)

(per curiam).

       On appeal, Pellam argues primarily that the ALJ erred in determining her residual

functional capacity because he erroneously rejected a medical opinion by a consultative

examiner, Dr. Nikita Dave, which concluded that Pellam had “moderate to severe limitation[s]

for bending, twisting through the neck and lumbar spine . . . pushing, pulling, lifting, carrying,

crouching, and for any jarring activities through the neck and lower back.” Certified

Administrative Record (“CAR”) at 267-68. Alternatively, Pellam contends, the ALJ should at

least have sought a medical source opinion or other additional evidence about her limitations

from one of her treating physicians before determining her residual functional capacity. She


                                                  3
essentially argues that an ALJ cannot determine a claimant’s functional limitations without the

support of at least some medical opinion concerning those limitations.

       There is no requirement that the agency accept the opinion of a consultative examiner

concerning a claimant’s limitations, and substantial evidence supported the ALJ’s decision not to

adopt many of Dr. Dave’s conclusions: (1) her findings were inconsistent with nearly

contemporaneous medical records from Pellam’s treating physicians; (2) Dr. Dave examined

Pellam on only one occasion and Pellam did not consent to the full range of tests; (3) Dr. Dave

thought Pellam was not completely forthcoming during the examination; and (4) Dr. Dave’s

ultimate conclusions were relatively vague. See 20 C.F.R. § 404.1527(c) (explaining the factors

used to weigh medical opinions); Curry v. Apfel, 209 F.3d 117, 123 (2d. Cir. 2000) (finding

medical opinion that a claimant had “moderate” limitations for lifting and carrying and “mild”

ones for standing, walking, pushing, pulling, and sitting was too “vague”), superceded by

regulation on other grounds by, 20 C.F.R. § 404.1560(c)(2).

       However, while the ALJ said he “reject[ed]” Dr. Dave’s opinion, CAR at 15, the ALJ’s

ultimate residual functional capacity determination was consistent with Dr. Dave’s analysis in all

relevant ways. The ALJ concluded that Pellam indeed had spine dysfunction, and, in addition to

finding that she could only do sedentary work, the ALJ incorporated two limitations into his

description of Pellam’s residual functional capacity—namely, that she could only incidentally

reach overhead and support forward extension and that she needed the ability to alternate her

working position at will. The limitations found by the ALJ appear to take into account many of

Dr. Dave’s findings. In fact, when pressed to specify which limitations from Dr. Dave’s opinion

had been improperly excluded from the ALJ’s description of her residual functional capacity,


                                                4
Pellam mentions only the “inability to bend.”1 Appellant’s Reply Br. 9.

       Therefore, even if the ALJ did not credit all of Dr. Dave’s findings, Dave’s medical

opinion largely supported the ALJ’s assessment of Pellam’s residual functional capacity. Under

these circumstances—especially considering that the ALJ also had all of the treatment notes

from Pellam’s treating physicians—we do not think that the ALJ had any further obligation to

supplement the record by acquiring a medical source statement from one of the treating

physicians. See Rosa, 168 F.3d at 79 n.5 (“[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 . . . .” (quoting Perez v. Chater, 77

F.3d 41, 48 (2d Cir. 1996)).2

       Upon our independent review of the existing record, including Dr. Dave’s opinion and

the treatment notes from Pellam’s doctors, we conclude that the ALJ’s residual functional

capacity determination was supported by substantial evidence. Pellam told her treating

physicians after each of her two back surgeries that her back pain had significantly improved and

that she had limited or no pain. Tests performed by Dr. Dave and her treating physicians showed



       1
          Pellam also criticizes the ALJ for failing to be specific about her ability to sit or stand,
but Dr. Dave did not explicitly mention any limitations for sitting or standing in his medical
source statement, and, in any event, the ALJ took this factor into consideration by concluding
that Pellam needed to alternate at will between sitting and standing.
       2
          We recognize that SSA regulations provide that the agency “will request a medical
source statement,” but they also explain that the lack of a source statement will not, by itself,
necessarily render the record incomplete. 20 C.F.R. § 404.1513(b)(6). Because Dr. Dave’s
opinion was largely consistent with the ALJ’s conclusions, we need not decide whether a record
would be rendered incomplete by the failure to request a medical source opinion from a treating
physician if the ALJ made his residual functional capacity determination without the support of
any expert medical source opinion concerning the claimant’s limitations.

                                                   5
at times that she had some limitations in her range of motion, but also that she had a “full range

of motion” in her bilateral extremities, CAR at 216, and a normal range of motion in her lower

extremities, CAR at 229. The ALJ’s ultimate determination took account of the fact that Pellam

experienced at least some pain, that her range of motion was somewhat limited, and that she

needed to alternate between sitting and standing. In sum, the ALJ’s residual functional capacity

analysis was reasonable and supported by substantial evidence.

        We also reject Pellam’s remaining arguments. The ALJ did not apply an incorrect legal

standard when judging the credibility of Pellam’s testimony. Although the ALJ did not

explicitly discuss all of the relevant factors, Pellam has failed to point to any authority requiring

him to do so. In any event, the ALJ cited the applicable regulation, 20 C.F.R. § 404.1529,

explicitly mentioned some of the regulatory factors (such as Pellam’s limited use of pain

medication), and stated that he considered all of the evidence required by § 404.1529. We think

that Pellam is, in reality, attempting to characterize her claim that the ALJ’s determination was

not supported by substantial evidence as a legal argument in order to garner a more favorable

standard of review. However, the ALJ’s conclusion that Pellam’s testimony was largely

incredible was based on substantial evidence. Much of her testimony was inconsistent with

statements made to her treating physicians, and, for an extended period of time, she stopped

taking her prescription pain medication. Given that “[i]t is the function of [the ALJ], not [this

court,] to . . . appraise the credibility of witnesses,” Carroll v. Sec’y of Health and Human Servs.,

705 F.2d 638, 642 (2d Cir. 1982), we cannot conclude that the ALJ erred in assessing Pellam’s

credibility.




                                                  6
       Finally, in light of our conclusion that the ALJ did not err in determining Pellam’s

residual functional capacity, it also did not err in using that residual functional capacity to

determine (with the help of a vocational expert) whether jobs existed in the national economy

that Pellam could perform. We have considered Pellam’s remaining arguments and find them to

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

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




                                                  7
