09-1795-cv
Zedanovich v. Astrue

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                             CORRECTED 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the twenty-third day of February, two thousand and ten.

PRESENT:

          JOSÉ A. CABRANES,
          ROSEMARY S. POOLER,
          GERARD E. LYNCH ,
                               Circuit Judges.
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DONALD ZEDANOVICH ,

                     Plaintiff-Appellant,

                     -v.-                                                                  No. 09-1795-cv

MICHAEL J. ASTRUE , Commissioner of Social Security,

                     Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:                                                                   CAROLYN A. KUBITSCHEK,
                                                                                           Lansner Kubitschek Schaffer &
                                                                                           Zuccardy, New York, NY (Russell
                                                                                           Grant, Marion Havard, Law
                                                                                           Students, on the brief).

FOR DEFENDANT-APPELLEE:                                                                    KAREN T. CALLAHAN , Special
                                                                                           Assistant United States Attorney
                                                                                           (Andrew T. Baxter, Interim United
                                                                                           States Attorney for the Northern
                                                                                           District of New York, on the brief,
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                                                                              Stephen P. Conte, Acting Chief
                                                                              Counsel, Social Security
                                                                              Administration, Richard A. Hill,
                                                                              Supervisory Regional Counsel, of
                                                                              counsel) Office of the United States
                                                                              Attorney for the Northern District
                                                                              of New York, Syracuse, NY.

        Appeal from March 4, 2009 and March 13, 2009 judgments of the United States District Court
for the Northern District of New York (Lawrence E. Kahn, Judge).

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

         Plaintiff Donald Zedanovich (“plaintiff”) appeals from the March 4, 2009 judgment, amended by
a March 13, 2009 judgment, of the District Court dismissing plaintiff’s complaint, adopting the Report
and Recommendation (“R&R”) of Magistrate Judge Gustave J. DiBianco dated February 6, 2009, and
thereby affirming the decision of the Commissioner of the Social Security Administration denying
plaintiff’s application for disability benefits. On appeal plaintiff argues, inter alia, that the District Court
erred in upholding the determinations made by the Administrative Law Judge (“ALJ”) because the ALJ
erred in failing to elicit testimony from a vocational expert to address plaintiff’s non-exertional
limitations. We assume the parties’ familiarity with the facts and procedural history of the case.

         The law of our Circuit on when the Commissioner must introduce testimony of a vocational
expert is clear:
         [S]ole reliance on the [g]rid[s] may be precluded where the claimant’s exertional impairments are
         compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant
         can perform. In these circumstances, the Commissioner must introduce the testimony of a
         vocational expert (or other similar evidence) that jobs exist in the economy which claimant can
         obtain and perform.
Butts v. Barnhart, 388 F.3d 377, 383-84 (2d Cir. 2004) (quoting Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir.
1999)) (emphasis added). In other words, the mere existence of a non-exertional impairment does not
alone trigger the need for vocational expert testimony. Rather, once the ALJ determines that a plaintiff
does in fact suffer from non-exertional impairments, the ALJ must then determine whether those
impairments are “significant” and “limit the range of sedentary work that the claimant can perform.” Id.

        As the Magistrate Judge noted in the instant case, the ALJ “carefully analyzed plaintiff’s non-
exertional impairments and determined that there was no significant limitation in the range of unskilled
sedentary work that plaintiff could perform.” (App’x 32) (emphasis in original). The ALJ’s
determination was supported by substantial evidence.

        We have reviewed each of plaintiff’s claims on appeal and find them to be without merit.
Substantially for the reasons stated by the Magistrate Judge in his careful and thoughtful R&R, adopted
by the District Court, see Zedanovich v. Comm’r of Soc. Sec., No. 3:06-cv-1403, 2009 WL 577763 (N.D.N.Y.
Mar. 4, 2009), the March 4, 2009 and March 13, 2009 judgments of the District Court are AFFIRMED.

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                                  CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the District Court.


                                     FOR THE COURT,

                                     Catherine O’Hagan Wolfe, Clerk of Court




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