     18-3527-cv
     Meyer v. Commissioner

                                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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT
     ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   25th day of November, two thousand nineteen.
 4
 5   Present:
 6               PIERRE N. LEVAL,
 7               DEBRA ANN LIVINGSTON,
 8               JOSEPH F. BIANCO,
 9                      Circuit Judges,
10   _____________________________________
11
12   PAUL MEYER,
13
14                           Plaintiff-Appellant,
15
16                  v.                                                      18-3527-cv
17
18   COMMISSIONER OF SOCIAL SECURITY,
19
20                     Defendant-Appellee.
21   _____________________________________
22
23   For Plaintiff-Appellant:                       RALPH M. KIRK, Law Offices of Ralph M. Kirk,
24                                                  Kingston, New York
25
26   For Defendant-Appellee:                        AMANDA F. PARSELS, Assistant United States Attorney
27                                                  (Christopher Connolly, Assistant United States
28                                                  Attorney on the brief) for Geoffrey S. Berman, United
29                                                  States Attorney for the Southern District of New York,
30                                                  New York, New York
31
32

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 1            Appeal from a judgment of the United States District Court for the Southern District of

 2   New York (Netburn, M.J.).

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

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

 5            Appellant Paul Meyer appeals from the September 28, 2018, judgment of the United States

6    District Court for the Southern District of New York (Netburn, M.J.), affirming an Administrative

7    Law Judge’s (“ALJ”) January 29, 2016 denial of Meyer’s application for Social Security disability

8    insurance benefits after concluding that Meyer was not disabled           We assume the parties’

9    familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

10            “On appeal, we conduct a plenary review of the administrative record to determine if there

11   is substantial evidence, considering the record as a whole, to support the Commissioner’s decision

12   and if the correct legal standards have been applied.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.

13   2000).    Substantial evidence “means such relevant evidence as a reasonable mind might accept

14   as adequate to support a conclusion.”    Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal

15   quotation marks omitted).     “When deciding an appeal from a denial of disability benefits, we

16   focus on the administrative ruling rather than the district court’s opinion.”   McIntyre v. Colvin,

17   758 F.3d 146, 149 (2d Cir. 2014) (internal quotation marks omitted). We “may only set aside a

18   determination which is based upon legal error or not supported by substantial evidence.” Arnone

19   v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989) (internal quotation marks and citation omitted); see also

20   42 U.S.C. § 405(g).

21            Meyer raises three arguments on appeal.     First, he argues that the ALJ’s determination

22   that Meyer’s Residual Functional Capacity (“RFC”) for the period at issue permitted him to engage

23   in sedentary work without a sitting limitation is not supported by substantial evidence. Second,


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 1   he asserts that the ALJ failed to correctly apply the treating physician rule.     Third, Meyer argues

 2   that the ALJ’s adverse credibility finding is not supported by substantial evidence.

 3   A. Physical RFC Finding

 4           Meyer contends that the ALJ rendered an incomplete RFC assessment by declining to

 5   include Meyer’s sitting limitations.1    For the following reasons, we disagree.

 6           The ALJ found that Meyer had the RFC to perform sedentary work as defined in 20 C.F.R.

 7   § 404.1567(a), “except he can occasionally push/pull, stoop, crouch, climb stairs, but cannot climb

 8   ladders/ropes/scaffolds or operate motor vehicles.” A.R. at 17.

 9           First, medical evidence, including testing and clinical exam findings, supported the ALJ’s

10   RFC finding.     Both a consultative examiner and two independent medical examiners found that

11   Meyer could engage in sedentary work, with some limitations. See id. at 23–28.             To the extent

12   the ALJ did not include all of these limitations in the RFC finding, the ALJ was permitted to do

13   so.   See Veino v. Barnhart, 312 F.3d 578, 588–89 (2d Cir. 2002) (upholding an ALJ’s refusal to

14   credit all of the findings of a consultative examiner because “it was within the province of the ALJ

15   to resolve [conflicting record] evidence in the way she did”).            The medical evidence also

16   discloses that Meyer experienced substantial improvement following surgery in 2013. Despite a

17   subsequent diagnosis for post-laminectomy syndrome, and continuing treatment for pain, Meyer’s

18   surgeon believed the back pain was manageable and more indicative of “strain” or “arthritis” than

19   total impairment.     A.R. at 729–30.       Clinical examinations following Meyer’s surgery and

20   physical examinations conducted after Meyer’s alleged onset date showed that, while he suffered

21   from some physical restrictions due to his condition, those restrictions (including decreased range


     1
      To the extent this argument is based on the ALJ granting less-than-controlling weight to the opinions of
     Meyer’s treating physician, it is dealt with in Section B below.


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 1   of motion and positive straight leg raising) were nonetheless consistent with a finding that he could

 2   perform sedentary work.     See id. at 19–23.   The ALJ’s RFC finding was thus consistent with the

 3   medical evidence in the record.

 4          Second, Meyer’s own testimony also supported the ALJ’s conclusion that Meyer retained

 5   the ability to perform sedentary work with some limitations. Meyer was able to do household

 6   chores, walk over a mile, do stretching exercises, lift small weights, and sit as a passenger for a

 7   car trip between New York and Virginia. Id. at 23.        Thus, Meyer’s own testimonial evidence

 8   was consistent with the ALJ’s RFC finding that he could perform sedentary work with some

 9   limitations.

10          Taken together, the medical evidence and Meyer’s capacity for activity provide substantial

11   evidence for the ALJ’s RFC finding.

12   B. The Treating Physician Rule

13          Meyer next argues that the ALJ failed to correctly apply the treating physician rule and that

14   the ALJ was required to give controlling weight to the opinions of Meyer’s treating physician, Dr.

15   Perri, regarding Meyer’s disability. When assigning less than “controlling weight” to a treating

16   physician’s opinion, the ALJ must “explicitly consider” the four factors announced in Burgess v.

17   Astrue, 537 F.3d 117 (2d Cir. 2008). Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019) (internal

18   quotation marks omitted).      Those factors are “(1) the frequen[cy], length, nature, and extent of

19   treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the

20   opinion with the remaining medical evidence; and (4) whether the physician is a specialist.” Id.

21   at 95–96 (citation omitted).    A reviewing court should remand for failure to consider explicitly

22   the Burgess factors unless a searching review of the record shows that the ALJ has provided “good

23   reasons” for its weight assessment. Id. at 96.


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1              Although the ALJ’s written findings are silent on whether Dr. Perri was a specialist,2 the

2    ALJ nonetheless gave good reasons for assigning Dr. Perri’s opinions “little weight.” Id.         With

3    respect to factors one and two, the ALJ discussed Dr. Perri’s history with Meyer and Dr. Perri’s

4    treatment records in detail.        The ALJ reasonably determined that Dr. Perri’s opinions were

5    entitled to less weight in light of Dr. Perri’s heavy reliance on Meyer’s self-reported well-being

6    and the circumstance that Dr. Perri’s evaluations did not appear to reflect Meyer’s symptomatic

 7   improvement.        Id. at 24–25.     As to the consistency of these opinions with the remaining

 8   evidence, factor three, the contrary medical evidence and Meyer’s self-reported capacity for

 9   activity (noted in Section A above) were inconsistent with Dr. Perri’s findings and provided good

10   reason to assign Dr. Perri’s evaluations little weight. Id.

11   C. Credibility Findings

12             Meyer’s third argument is that the ALJ’s adverse credibility finding regarding Meyer is not

13   supported by substantial evidence. “It is the function of the Secretary, not [the reviewing courts],

14   to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.”

15   Aponte v. Sec'y, Dep't of Health & Human Servs. of the United States, 728 F.2d 588, 591 (2d Cir.

16   1984) (alteration in original) (internal quotation marks omitted). “If the Secretary's findings are

17   supported by substantial evidence, the court must uphold the ALJ's decision to discount a

18   claimant's subjective complaints of pain.”            Id. (internal citations omitted).     Thus, where

19   substantial evidence supports it, “an ALJ's credibility determination is generally entitled to

20   deference on appeal.”        Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013).          The ALJ found

21   Meyer not “wholly credible.”        A.R. at 23.



     2
         The ALJ did mention Dr. Perri’s specialty at the hearing.


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1           The ALJ’s credibility determination merits deference.    First, as above, the ALJ found that

2    Meyer’s activities were inconsistent with his claim of disabling back pain. Id.    The ALJ noted

3    Meyer’s ability to walk a mile, perform yoga-like exercises with low weights, perform household

4    chores, go shopping, attend doctor’s appointments, and travel a significant distance by car, and

5    reasonably determined that these activities were inconsistent with a claim of disabling back pain.

6    Id.   Second, the ALJ found significant that the course of treatment pursued by Meyer after

7    receiving steroidal injections had been fundamentally “routine and/or conservative in nature.” Id.

8    Additionally, the ALJ noted that the claimant showed no evidence of debilitating symptoms during

9    the hearing, while at the same time cautioning that the hearing was “short-lived and cannot be

10   considered a conclusive indicator” and so afforded this factor only “some slight weight.”      Id. at

11   24.   Finally, the ALJ looked to his evaluation of the medical evidence discussed above as

12   bolstering his finding that Meyer was not “wholly credible.” Id. at 23.      Given these findings

13   and mindful that “an ALJ's credibility determination is generally entitled to deference on appeal,”

14   Selian, 708 F.3d at 420, the ALJ’s credibility determination here was entitled to deference.

15                                            *      *       *

16          We have considered Meyer’s remaining arguments and find them to be without merit.

17   Accordingly, we AFFIRM the judgment of the district court.

18                                                        FOR THE COURT:
19                                                        Catherine O’Hagan Wolfe, Clerk




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