12-2971-cv
Padula 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 the 18th
day of March, two thousand thirteen.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
            REENA RAGGI,
                        Circuit Judges.
_____________________________________________________

GERARD PADULA,

                              Plaintiff-Appellant,

                        -v-                                               12-2971-cv

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:             Mark Schneider, Plattsburgh, NY

Appearing for Appellee:              Robert R. Schriver, Special Assistant United States
                                     Attorney (Richard S. Hartunian, United States Attorney,
                                     Northern District of New York, Syracuse, NY; Stephen P.
                                     Conte, Regional Chief Counsel, Office of the General
                                     Counsel, Social Security Administration, New York, NY,
                                     on the brief), Syracuse, NY

     Appeal from the United States District Court for the Northern District of New York
(McAvoy, J.).
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in
part, VACATED in part, and REMANDED.

        Gerard Padula appeals from the judgment of the district court entered on July 16, 2012,
affirming the denial of Social Security Disability Insurance benefits by an administrative law
judge (“ALJ”) on December 3, 2010. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

        When this Court reviews a denial of Social Security benefits, the “focus is not so much
on the district court’s ruling as it is on the administrative ruling.” Schall v. Apfel, 134 F.3d 496,
500-01 (2d Cir. 1998) (citation and internal quotation marks omitted). We do not make a de
novo determination on whether the claimant is disabled, but instead conduct “a plenary review of
the administrative record to determine if there is substantial evidence, considering the record as a
whole, to support the Commissioner’s decision and if the correct legal standards have been
applied.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks omitted).
“Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Brault v. Soc. Sec. Admin.,
683 F.3d 443, 447-48 (2d Cir. 2012) (internal citations and quotation marks omitted).

         To determine if a claimant is disabled, the Social Security Administration (“SSA”)
applies a five-step test. 20 C.F.R. § 404.1520. The burden of proof rests on the claimant at the
first four steps of the test and shifts to the Commissioner at the fifth step. Shaw v. Chater, 221
F.3d 126, 132 (2d Cir. 2000). The third step of this analysis requires the ALJ to ask whether a
claimant’s severe impairment meets or medically equals an impairment listed at 20 C.F.R. § 404,
App’x 1. Id. Here, the ALJ did not err in concluding that Padula’s impairment did not meet the
Appendix 1 listing for § 12.04. Padula did not make the requisite showing that he met the
impairments listed at either § 12.04 B or C. To the district court, Padula did not argue that the
ALJ erred by failing to compare his impairments to the listing at § 12.06, and thus we consider
the argument waived. See Leyda v. AlliedSignal, Inc., 322 F.3d 199, 207 (2d Cir. 2003).

         The fourth step of this analysis requires the ALJ to assess whether “despite the claimant’s
severe impairment, he or she has residual functional capacity to perform his or her past work”
Shaw, 221 F.3d at 132 (internal quotation marks omitted). At this step, the ALJ must consider
all of the symptoms and the extent to which the claimed symptoms can reasonably be accepted
as consistent with the objective medical evidence and other evidence. 20 C.F.R. § 416.929.
When an individual has a medically determinable impairment that could reasonably be expected
to produce the symptoms alleged by a claimant, but the objective evidence does not substantiate
the alleged intensity and persistence, the ALJ cannot reject the assertions as incredible on this
ground alone. Id. § 416.929(c)(2). Rather, the ALJ must consider “any other information [the
claimant] submit[s] about [his] symptoms.” Id. at § 416.929(c)(3). The ALJ will consider “all of
the evidence presented, including information about [a claimant’s] prior work record, [a
claimant’s] statements about [his] symptoms, evidence submitted by [a claimant’s] treating or
nontreating source, and observations by [SSA] employees and other persons.” Id.



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        In the instant case, the ALJ determined that Padula’s reported symptoms of nausea and
fatigue were not credible to the extent they were inconsistent with medical evidence and
Padula’s account of his daily activities. However, as these symptoms were supported by the
treatment records from Padula’s treating psychiatrist, Dr. Astill-Vaccaro, and there was nothing
in the description of Padula’s daily activities, previous work history, or observations by any
employees of the SSA that undermined these claimed symptoms, the ALJ did not properly
consider all of the symptoms suffered by Padula in making his determination about Padula’s
residual functional capacity. Likewise, to the extent the ALJ found Padula not to be credible
based upon his description of these symptoms, we find that the ALJ erred because the
determination “did not comply with the ALJ’s obligation to consider ‘all of the relevant medical
and other evidence,’ 20 C.F.R. § 404.1545(a)(3), and cannot stand.” Genier v. Astrue, 606 F.3d
46, 50 (2d Cir. 2010). Therefore, this case must be remanded for further proceedings to
determine Padula’s residual functional capacity in light of “all of the relevant medical and other
evidence.” 20 C.F.R. § 404.1545(a)(3) (emphasis added). In analyzing the record on remand,
the ALJ remains free to consider evidence regarding any effect Padula’s drug and alcohol use
may have had on his asserted symptoms, see Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d
Cir. 2012), and also to develop the administrative record to the extent necessary to make this and
any other determinations on the extent and causes of Padula’s symptoms, see Perez v. Chater, 77
F.3d 41, 47 (2d Cir. 1996) (memorializing ALJ’s obligation to develop administrative record).

        We have considered Padula’s remaining arguments and find them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED in part, VACATED in
part, and REMANDED for further proceedings.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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