      15-3786
      Tricarico 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 TO 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 3rd day of March, two thousand seventeen.

      PRESENT:
                            ROBERT A. KATZMANN,
                                 Chief Judge,
                            RALPH K. WINTER,
                                 Circuit Judge,
                            SIDNEY H. STEIN,*
                                 District Judge.


      JOSEPH TRICARICO,

                                  Plaintiff-Appellant,

                            v.                                               No. 15-3786

      CAROLYN W. COLVIN, ACTING COMMISIONER
      OF SOCIAL SECURITY

                                  Defendant-Appellee.



      For Plaintiff-Appellant Joseph Tricarico:              CHRISTOPHER JAMES BOWES, Law Office of
                                                             Christopher Bowes, Shoreham, NY, of counsel

      *
       Judge Sidney H. Stein, of the United States District Court for the Southern District of New
      York, sitting by designation.
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                                                     to Harry J. Binder and Charles E. Binder, P.C.,
                                                     New York, NY.

For Defendant-Appellee Carolyn W. Colvin:            ROBERT R. SCHRIVER, Special Assistant U.S.
                                                     Attorney (Varuni Nelson and Arthur
                                                     Swerdloff, Assistant U.S. Attorneys, on the
                                                     brief), for Robert L. Capers, U.S. Attorney for
                                                     the Eastern District of New York, Brooklyn,
                                                     NY.


       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Mauskopf, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Joseph Tricarico appeals from the order and judgment of the United

States District Court for the Eastern District of New York (Mauskopf, J.) entered on September

28, 2015, denying Tricarico’s motion for judgment on the pleadings and granting Defendant-

Appellee Carolyn W. Colvin’s cross-motion for judgment on the pleadings. See Tricarico v.

Colvin, No. 14-CV-2415 (RRM), 2015 WL 5719696 (E.D.N.Y. Sept. 28, 2015). We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

       Tricarico, a former police officer on disability retirement, applied for and was denied

Social Security Disability Insurance benefits by Administrative Law Judge James Kearns. After

the Social Security Administration Appeals Council denied review of his appeal, he challenged

the determination in district court. We review a district court’s judgment on the pleadings in a

social security action “de novo to determine whether there is substantial evidence supporting the

Commissioner’s decision and whether the Commission applied the correct legal standard.”

Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010). When reviewing a benefits determination by

the Commissioner, our focus “is not so much on the district court’s ruling as it is on the

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administrative ruling,” Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003) (citation and

quotation marks omitted), and “we do not substitute our judgment for the agency’s, or determine

de novo whether [the claimant] is disabled.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d

Cir. 2012) (citation and internal quotation marks omitted) (alteration in original). Instead,

reviewing the ALJ’s factfinding for substantial evidence, “we can reject those facts only if a

reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm’r,

683 F.3d 443, 448 (2d Cir. 2012) (quotation marks omitted). In deciding whether substantial

evidence exists, we defer to the Commissioner’s resolution of conflicting evidence. See Clark v.

Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).

       On appeal, Tricarico raises three issues. First, he argues that the ALJ erred by failing to

assign the appropriate weight to the opinion of his treating physician, whose opinion Tricarico

argues was “well-supported” and should have been accorded controlling weight. Second, he

asserts that the ALJ improperly rejected Tricarico’s subjective complaints of pain and did not

treat as credible Tricarico’s claims concerning his physical limitations. Third, Tricarico argues

that the evidence submitted to the Appeals Council — namely two reports from another

physician — was new and material and should have been considered by the Council in reviewing

the ALJ’s decision.

   A. Denial of Controlling Weight to Treating Physician’s Assessment

       As to the first issue, Tricarico contends that the ALJ wrongly declined to afford

controlling weight to the assessment of his treating physician, Dr. Wilen. Despite Tricarico’s

urging, the ALJ need not grant the treating physician’s assessment controlling weight where the

opinion is inconsistent with other evidence in the record, including the opinions of other medical

experts. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam). Here, the ALJ’s

decision to afford limited weight to Dr. Wilen’s assessment is supported by substantial evidence.
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        First, the ALJ observed that Dr. Wilen’s assessment contained internal inconsistencies,

such as the fact that the extreme limitations Dr. Wilen identified were not consistent with the

relatively conservative treatment plan he had prescribed, which consisted of only pain relief

medication and physical therapy, the latter of which was later discontinued. The ALJ also noted

that Tricarico was seen by Dr. Wilen only every one to three months for pain medication and that

Tricarico had declined surgical care recommended by multiple providers. Second, Dr. Wilen’s

assessment also contradicted both Tricarico’s testimony and the assessment of Dr. Aurelio Salon,

who provided a consultative examination at the behest of the Division of Disability

Determination. Dr. Salon identified that Tricarico “can clean, go shopping, do child care,

shower, bathe, and dress by himself.” AR 293. Dr. Salon’s assessment further observed that

Tricarico had a “normal” gait, could “walk on heels and toes without difficulty,” could “[s]quat

full,” “[u]sed no assistive devices,” “[n]eeded no help changing” for the examination or getting

on and off the examination table, and was “[a]ble to rise from the chair without difficulty.” AR

293. Based on Tricarico’s medical history and his evaluation, Dr. Salon found nothing to support

the fact that the claimant would be restricted in his ability to sit or stand, or in his capacity to

climb, push, pull, or carry heavy objects.” AR 295. The ALJ assigned Dr. Salon’s opinion “great

weight” because it was “consistent with the examiner[’]s findings” and Tricarico’s “ongoing

conservative care.” AR 27.

        This Circuit has held that a Commissioner’s determination of liability is subject to

remand where the ALJ fails “to provide ‘good reasons’ for the weight she gives to the treating

source’s opinion.” See Halloran, 362 F.3d at 32–33; see also 20 C.F.R. § 404.1527(c)(2).

Although a treating physician’s assessment is typically given more weight than other examiners’

assessments, internal inconsistencies, and the conflicting opinions of other examining physicians,



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where supported by evidence in the record, can constitute substantial evidence to support not

according the treating physician’s opinion controlling weight, as well as good reasons to attribute

only limited weight to that opinion. See Diaz v. Shalala, 59 F.3d 307, 314–15 (2d Cir. 1995); see

also 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as

a whole, the more weight we will give to that opinion.”). Moreover, the ALJ’s conclusion need

not perfectly correspond to any one medical assessment as long as it is supported by the record

as a whole, see Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013) (summary order), which the

ALJ’s decision here is. Substantial evidence thus supports the ALJ’s decision not to afford

controlling weight to Dr. Wilen’s assessment.

   B. Assessment of Tricarico’s Credibility

       Second, Tricarico argues that the ALJ improperly evaluated Tricarico’s credibility as to

his subjective complaints of pain, symptoms, and limitations resulting from his condition. As to a

complainant’s credibility, the ALJ’s task is to consider the extent to which his self-reported

symptoms could “reasonably be accepted as consistent with the objective medical evidence and

other evidence of record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (quoting

20 C.F.R. § 404.1529(a)) (internal quotation marks omitted). As a factfinder, however, the “ALJ

is free to accept or reject testimony” of a witness, provided that when a witness is found not to be

credible, the ALJ provides findings with “sufficient specificity to permit intelligible plenary

review of the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 260–61 (2d Cir. 1988).

       Tricarico concedes that the ALJ did credit many of his complaints, including his pain and

limited movement in his right shoulder, neck, lower back, and right knee; tingling in his legs;

and pain upon lifting his 21-pound daughter. However, the ALJ also identified aspects of

Tricarico’s testimony that were not consistent with a finding of complete disability. For example,

the ALJ noted that Tricarico had “not sought surgical care though his multiple providers have
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encouraged him to have a right shoulder arthroscopy.” AR 28. The ALJ observed, moreover, that

“[w]hile the claimant testified to have ongoing pain complaints, he appears to have relatively

busy activities of daily living. He takes care of his three young children while his wife is at work,

including his one-year-old.” AR 28. As a result, the ALJ limited Tricarico to “sedentary

exertional work,” with additional limitations that he have “a sit and stand at will work option,”

AR 28, and that he avoid extreme temperatures due to ongoing pain. The ALJ also limited him to

simple and repetitive work based on Tricarico’s testimony that he had medication side-effects

that included diminished concentration. In short, given conflicting evidence in the record and in

Tricarico’s own account of his limitations, the ALJ appropriately assessed Tricarico’s credibility.

   C. Evidence Submitted After the ALJ’s Decision

       Last, Tricarico contends that the Appeals Council should have considered two additional

medical reports submitted by Dr. Joseph DeFeo that were excluded as not relevant to his

condition during the period at issue. The Appeals Council shall consider evidence submitted after

the ALJ’s decision if the petitioner can show “good cause” for not submitting the evidence to the

ALJ and that the additional evidence is “new, material, and relates to the period on or before the

date of the hearing decision.” 20 C.F.R. § 404.970(a)(5), (b). Even if the Appeals Council erred

by rejecting additional evidence, remand is only appropriate where there is a “reasonable

possibility” that this evidence would have influenced the ALJ to decide the disability

determination differently. See Lisa v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d 40, 43

(2d Cir. 1991) (quoting Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)).

       Dr. DeFeo’s physical exam took place in July 2013 — nearly eight months after the

ALJ’s decision — and so the only argument that his assessments were relevant to Tricarico’s

condition when his benefits were denied is that Dr. DeFeo examined Tricarico’s MRI and EMG

reports dating back as far as 2007. His assessment as to Tricarico’s earlier condition is therefore
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cumulative of other doctors who reviewed these same reports prior to the ALJ’s decision.

Moreover, Dr. DeFeo’s assessment actually contradicted Dr. Wilen’s by suggesting Tricarico’s

impairments were less restrictive than what Dr. Wilen had determined. As a result, there is not a

reasonable possibility that Dr. DeFeo’s assessments would have altered the ALJ’s decision.

       We have considered all of appellant’s contentions on appeal and have found in them no

basis for reversal. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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