     15-3803
     Suttles v. Colvin

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of June, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       DOREEN SUTTLES,
13                Plaintiff-Appellant,
14
15                    -v.-                                               15-3803
16
17       CAROLYN W. COLVIN,
18                Defendant-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        MARK SCHNEIDER, Plattsburgh, New
22                                             York.
23
24       FOR APPELLEE:                         HEETANO SHAMSOONDAR, Special
25                                             Assistant U.S. Attorney (with
26                                             Stephen P. Conte, Regional Chief
27                                             Counsel - Region II Office of
28                                             the General Counsel Social

                                                  1
 1                              Security Administration, on the
 2                              brief), for Richard S.
 3                              Hartunian, United States
 4                              Attorney for the Northern
 5                              District of New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Northern District of New York (Suddaby, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        Plaintiff Doreen Suttles appeals from the district
15   court’s affirmance of a decision of the Commissioner of
16   Social Security (“Commissioner”) denying her application for
17   Social Security disability benefits. We review the
18   administrative record de novo, and will uphold the
19   Commissioner’s decision if it is supported by substantial
20   evidence and the correct legal standards were applied. See
21   Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010); Talavera
22   v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (“Substantial
23   evidence . . . . means such relevant evidence as a
24   reasonable mind might accept as adequate to support a
25   conclusion.” (internal quotation marks omitted)). We assume
26   the parties’ familiarity with the underlying facts, the
27   procedural history, and the issues presented for review.
28
29        1. Suttles contends that the ALJ improperly evaluated
30   the opinions of pulmonologist Dr. Kabeli and consultative
31   examiner Dr. Wassef. Medical opinions are evaluated based
32   on, inter alia, the following factors: (1) the evidence in
33   support of the opinion; (2) the consistency of the opinion
34   with the record as a whole; (3) the specialty of the
35   physician; and (4) any other factors which may support or
36   contradict the opinion. See 20 C.F.R. §§ 404.1527(c),
37   416.927(c).
38
39        Under the Commissioner’s regulations, the ALJ accorded
40   great weight to Dr. Wassef’s opinion because it was
41   consistent with the evidence in the record. As the district
42   court ruled, Dr. Kabeli did not specify any functional
43   limitations, and Dr. Wassef’s opinion was supported by
44   substantial evidence, including Dr. Kabeli’s treatment
45   notes.
46


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 1        2. The plaintiff argues that she is per se disabled
 2   under Listing 3.02. To satisfy the requirements for chronic
 3   pulmonary insufficiency disorder, a claimant must show an
 4   FEV1 equal to or less than 1.45 or an FVC equal to or less
 5   than 1.65 for an individual of Suttles’s height (68 inches).
 6   See 20. C.F.R. Pt. 404, Subpt. P, App’x 1, § 3.02. The
 7   Commissioner’s regulations state that when evaluating a
 8   claimant’s impairments under this listing, the “highest
 9   values of the FEV1 and FVC, whether from the same or
10   different tracings, should be used to assess the severity of
11   the respiratory impairment.” Id. § 3.00E. Therefore, the
12   ALJ properly relied on the higher pulmonary function test
13   results in determining that Suttles’s impairment did not
14   meet or equal the requirements of Listing 3.02.
15
16        3. Suttles argues that the ALJ erred in evaluating her
17   credibility. Specifically, the ALJ cited her failure to
18   quit smoking despite her doctors’ recommendations. The
19   Commissioner is not obligated to accept without question a
20   claimant’s testimony about her limitations and symptoms, but
21   has discretion to evaluate the claimant’s credibility in
22   light of the evidence in the record. See Genier v. Astrue,
23   606 F.3d 46, 49 (2d Cir. 2010); Westfall v. Colvin, 137 F.
24   Supp. 3d 340, 346 (W.D.N.Y. 2015) (upholding credibility
25   determination where failure to quit smoking was at issue
26   based on other record evidence).
27
28        Although an ALJ may find a plaintiff less credible if
29   she failed to follow medical treatment, an ALJ is obligated
30   to consider any explanation a plaintiff may have for the
31   failure, see Soc. Sec. Ruling 16-3p; Titles II and XVI:
32   Evaluation of Symptoms in Disability Claims, 81 Fed. Reg.
33   14,166, 14,170-71 (Mar. 16, 2016), and here the ALJ did not
34   consider any explanation for the failure to quit smoking.
35   See Goff v. Astrue, 993 F. Supp. 2d 114, 128 (N.D.N.Y. 2012)
36   (“[G]iven the addictive nature of smoking, the failure to
37   quit is as likely attributable to factors unrelated to the
38   effect of smoking on a person’s health.” (citation and
39   quotation marks omitted)).
40
41        Despite this error, the ALJ’s decision here was
42   supported by other substantial evidence in the record: the
43   ALJ considered Suttles’s allegations and found that they
44   were not supported by the medical evidence. Additionally,
45   the ALJ found that her description of her daily activities -
46   - which included cooking, some cleaning, helping with
47   laundry, and shopping with her husband -- were inconsistent

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 1   with her level of complaints. As the district court ruled,
 2   any error was harmless because substantial evidence
 3   supported the ALJ’s overall credibility determination.
 4
 5        4. The ALJ specifically found that the plaintiff had
 6   chronic obstructive pulmonary disease (“COPD”), obesity,
 7   major depression, and an anxiety disorder as impairments,
 8   but that those impairments did not rise to the level of a
 9   disability. Suttles argues that the ALJ failed to consider
10   these conditions together. However, the ALJ considered her
11   impairments in combination, as well as separately. See
12   Rivers v. Astrue, 280 F. App'x 20, 23 (2d Cir. 2008)
13   (rejecting allegations that the ALJ failed to consider
14   impairments in combination where record showed that each
15   ailment and its cumulative effects was considered).
16
17        5. Suttles argues that the Appeals Council erred by not
18   considering a new IQ test and mental evaluation. Under the
19   Commissioner’s regulations, the Appeals Council will
20   consider new and material evidence only if it relates to the
21   relevant period on or before the date of the ALJ’s decision.
22   Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996). Evidence is
23   material if it is relevant to the claimant’s condition
24   during the time period for which benefits were denied, and
25   there is a reasonable possibility that the new evidence
26   would have influenced the ALJ to decide the claimant’s
27   application differently. Jones v. Sullivan, 949 F.2d 57, 60
28   (2d Cir. 1991).
29
30        We have held that “medical evidence generated after an
31   ALJ’s decision [can] not be deemed irrelevant solely because
32   of timing, [as] subsequent evidence of the severity of a
33   condition suggests that the condition may have been more
34   severe in the past than previously thought.” Williams v.
35   Comm’r Soc. Sec., 236 F. App’x 641, 644 (2d Cir. 2007);
36   Pollard v. Halter, 377 F.3d 183, 194 (2d Cir. 2004). It
37   certainly can be argued that Dr. Liotta’s report on
38   Suttles’s IQ and mental capacity, even if based on an
39   evaluation of Suttles that post-dated the ALJ’s decision,
40   provides evidence of Suttles’s condition during the period
41   for which she sought benefits, and that, therefore, it was
42   error for the Appeals Council not to have considered it.
43   Cf. Talavera v. Astrue, 697 F.3d 145, 152 (2d Cir. 2012)
44   (agreeing with “majority of our sister Circuits that it is
45   reasonable to presume, in the absence of evidence indicating
46   otherwise, that claimants will experience a fairly constant
47   IQ throughout their lives” (internal quotation marks and

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 1   alterations omitted)); Muncy v. Apfel, 247 F.3d 728, 734
 2   (8th Cir. 2001) (stating that “a person’s IQ is presumed to
 3   remain stable over time in the absence of any evidence of a
 4   change in claimant’s intellectual functioning” and
 5   collecting cases). But, assuming that the Appeals Council
 6   erred, there was nevertheless no reasonable possibility that
 7   consideration of Dr. Liotta’s report would have altered the
 8   ALJ’s decision, because the evidence that Dr. Liotta adduced
 9   was not materially different from that which was already
10   before the ALJ and the vocational expert when they reached
11   their conclusions.
12
13        6. Suttles argues that the defendant failed to show at
14   “Step 5” that Suttles could do work. The ALJ did not err in
15   its residual functional capacity analysis, and the
16   vocational expert’s testimony that there are jobs existing
17   in the national economy constitutes substantial evidence
18   supporting the ALJ’s five step determination. See McIntyre
19   v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014)
20
21        For the foregoing reasons, and finding no merit in the
22   plaintiff’s other arguments, we hereby AFFIRM the judgment
23   of the district court.
24
25                              FOR THE COURT:
26                              CATHERINE O’HAGAN WOLFE, CLERK
27




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