    17-2948-cv
    Anselm v. Commissioner of Social Security

                         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, on the 11th day of June, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             DENNY CHIN,
             RAYMOND J. LOHIER, JR.,
                             Circuit Judges.

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    Franklyn Anselm,
             Plaintiff-Appellant,

                -v.-                                       17-2948-cv

    Commissioner of Social Security,
             Defendant-Appellee.
    - - - - - - - - - - - - - - - - - - - -X

    FOR APPELLANT:                      Garry Pogil, Esq., New York, NY.

    FOR APPELLEE:                       Varuni Nelson, Assistant United
                                        States Attorney, on behalf of
                                        Richard P. Donoghue, United
                                        States Attorney for the Eastern
                                        District of New York (Arthur
                                        Swerdloff, Candace Scott
                                        Appleton, Assistant United
                                        States Attorneys, on the brief),
                                        Brooklyn, New York.

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     Appeal from a judgment of the United States District
Court for the Eastern District of New York (Cogan, J.).

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

     Franklyn Anselm appeals from the judgment of the United
States District Court for the Eastern District of New York
affirming the Commissioner’s denial of his application for
disability insurance benefits under Title II of the Social
Security Act (“Act”), 42 U.S.C. § 401 et seq. We assume
the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     To be disabled under the Act, a claimant must establish
an inability to engage in “any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or
which has lasted or can be expected to last for a
continuous period of not less than [twelve] months.” 20
C.F.R. § 404.1505(a). The Commissioner engages in a five-
step process to determine disability status. The claimant
must first demonstrate that he is not engaging in
substantial gainful activity (step one) and that he has a
“severe impairment” that limits his ability to do physical
or mental work-related activities (step two). If his
impairment meets the criteria of a “per se disabling”
impairment as listed in the Act, he is entitled to
disability benefits (step three). See 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d), 404.1525. If not, the
Commissioner considers whether the claimant retains the
residual functional capacity to return to past relevant
work (step four). If the claimant is too impaired to
return to past relevant work, the burden shifts to the
Commissioner in the fifth and final step to show that jobs
exist in significant numbers in the national economy that
the impaired claimant could perform. Id.
§ 404.1520(a)(4)(v).

     Anselm, who suffers from obesity, has had
cardiovascular problems since his quadruple-bypass surgery
in 2007. In November 2007, Anselm applied for disability
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insurance benefits. His application was denied, and he
requested a hearing before an administrative law judge
(“ALJ”). After successive ALJ decisions were vacated by
the Appeals Council, Anselm appeared before ALJ Feuer on
November 24, 2015. The ALJ heard Anselm’s testimony;
consulted the medical source statements and notes of
Anselm’s treating physicians; and considered testimony and
written opinions from a consulting physician, several state
agency physicians, and a vocational expert. Anselm’s two
treating physicians opined that he was “totally disabled”
from working. S. App’x at 15.

     The ALJ’s February 10, 2016 decision found Anselm not
disabled. Although Anselm’s heart disease and the chronic
effects of his bypass surgery were deemed “severe
impairments,” the ALJ determined that Anselm did not suffer
from an impairment comparable in severity to one of the
listed impairments under the Act. See 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526. The ALJ further concluded
that Anselm retained the residual functional capacity to
perform light work with certain limitations, and that the
Commissioner had proven that such work existed in
significant numbers in the national economy. See id. §
404.1520(a)(4)(v).

     Anselm argues that the “residual functional capacity
for light work” ruling inappropriately discounted the
opinions of his treating physicians in favor of the
assessment of the state agency physician, Dr. Bernanke. He
also contends that the ALJ erred in relying upon the
testimony of the vocational expert to sustain the
Commissioner’s burden to prove the existence of appropriate
jobs in the national economy. The district court found
these arguments without merit and upheld the Commissioner’s
final decision that Anselm was not entitled to disability
insurance benefits. See S. App’x at 6.

     Our review of the denial of disability benefits
“focus[es] on the administrative ruling rather than the
district court’s opinion.” Moran v. Astrue, 569 F.3d 108,
112 (2d Cir. 2009). We review to determine “whether there
is substantial evidence supporting the Commissioner’s
decision and whether the Commissioner applied the correct
legal standard.” Zabala v. Astrue, 595 F.3d 402, 408 (2d
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Cir. 2010). Substantial evidence “means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (citation omitted). “In determining
whether the agency’s findings are supported by substantial
evidence, ‘the reviewing court is required to examine the
entire record, including contradictory evidence and
evidence from which conflicting inferences can be drawn.’”
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)
(quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.
1983) (per curiam)). We “may only set aside a
determination which is based upon legal error or not
supported by substantial evidence.” Arnone v. Bowen, 882
F.2d 34, 37 (2d Cir. 1989) (internal quotation marks and
citation omitted); see also 42 U.S.C. § 405(g).

     Anselm argues that the ALJ’s disability decision is not
supported by substantial evidence because it insufficiently
credits the opinions of his treating physicians, Drs. Ajah
and Siddiqui (see S. App’x at 14-15), and assigns “great
weight” to the opinion of Dr. Bernanke on the question of
Anselm’s residual functional capacity (id. at 16).

     In two medical source statements from December 2007 and
January 2010, Dr. Ajah opined that Anselm had remained
“totally disabled” since his coronary bypass. Id. at 14-
16. His March 2015 letter submitted to the ALJ reiterated
that Anselm could not perform any full-time work. Id. Dr.
Siddiqui, who also treated Anselm on multiple occasions,
opined in May 2009 that Anselm could not perform even
sedentary work.

     Ordinarily, the “opinion of a treating physician is
given controlling weight if it is well supported by medical
findings and not inconsistent with other substantial
evidence.” Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir.
1999); see also Burgess v. Astrue, 537 F.3d 117, 128 (2d
Cir. 2008); 20 C.F.R. § 404.1527. However, the ALJ may set
aside an opinion of a treating physician that is
contradicted by the weight of other record evidence. Snell
v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999); 20 C.F.R. §
404.1527(c)(2); see also Cohen v. Comm’r. of Soc. Sec., 643
F. App’x 51, 53 (2d Cir. 2016) (summary order) (opinion of
a treating physician is “not absolute”).
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     The ALJ determined that Drs. Ajah and Siddiqui’s
treatment notes and diagnoses did not support their
conclusory opinions. Dr. Ajah’s January 4, 2010 source
statement noted impairments in lifting, pushing, pulling,
walking, climbing, and other physical activities that
conflicted with his earlier assessments in 2007 and 2008,
and with Anselm’s own testimony about his lifestyle and
capacity. See S. App’x at 14-15. It also clashed with Dr.
Ajah’s view throughout 2007-08 that Anselm’s post-bypass
disability would be temporary, and that he could soon
return to work. Id. (citing from Tr. 953). The ALJ
likewise found Dr. Siddiqui’s opinion from the May 22, 2009
questionnaire at odds with the results of his testing and
diagnostics. Anselm’s cardiac examinations under Dr.
Siddiqui were consistently unremarkable; Anselm’s
functional capacity was repeatedly characterized as average
for his age. Id. at 15 (citing from Tr. 966, 989-91). And
the non-treating physicians who analyzed Dr. Siddiqui’s
examinations cast serious doubt on the scientific validity
of Dr. Siddiqui’s May 2009 restrictive assessment. Id. at
15-16 (citing from Tr. 242-44, 978-83); see, e.g., Garcia
v. Colvin, No. 14-cv-4798, 2015 WL 4603422, at *6 (E.D.N.Y.
July 30, 2015) (permitting the non-treating specialist to
rebut the treating physician’s conclusions on the basis of
an independent analysis).

     Drs. Ajah and Siddiqui’s opinions are further
undermined by the conclusions of other medical
professionals who reviewed Anselm’s file.1 See Tr. 227


1The ALJ placed significant weight on the opinion of Dr.
Bernanke, a non-examining cardiac specialist. Anselm
contends that Dr. Bernanke’s opinion is vague and
unreliable because during his testimony, he sought
clarification on the term “medical equivalence” within the
meaning of step three of the sequential analysis.
Appellant’s Br. at 12. This single colloquy (at Tr. 229)
casts no doubt on the qualifications or eligibility of Dr.
Bernanke, who is board-eligible in cardiology and has been
a medical expert in social security cases for at least 32
years. Anselm, who bears the burden at this stage of the
sequential analysis, makes no argument for how Dr.
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(finding of Dr. Bernanke that Anselm’s exercise capacity
above the standard minimum limitation for disability), 286-
88 (testimony of Dr. Galst that Anselm’s coronary surgery
was “relatively uneventful” and that he could do sedentary
and light work); 823 & 828 (conclusions of state agency
medical consultants that Anselm could lift, carry, stand,
walk, and sit at functional levels); see also S. App’x at
12 (Anselm had “good exercise tolerance” and an
“unremarkable” physical examination).

     “[W]e defer to the Commissioner’s resolution of
conflicting evidence,” Cage v. Comm’r of Soc. Sec., 692
F.3d 118, 122 (2d Cir. 2012), and reject the ALJ’s findings
“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) (per curiam) (emphasis in
original). The weighing of the inconsistent opinions was a
proper exercise of the ALJ’s discretion. See Veino v.
Barnhart, 312 F.3d 578, 588-89 (2d Cir. 2002); Mongeur, 722
F.2d at 1038; see also Diaz v. Shalala, 59 F.3d 307, 313
n.5 (2d Cir. 1995) (“[T]he opinions of nonexamining sources
[can] override treating sources’ opinions provided they are
supported by evidence in the record.”).

     Lastly, Anselm argues that the testimony of the
agency’s vocational expert, Dr. Taitz, could not support
the ALJ’s conclusion that jobs existed in significant
numbers in the national economy within Anselm’s residual
functional capacity. Dr. Taitz gave consideration to
workplace accommodations, which (under Anselm’s
uncorroborated interpretation of certain Social Security
Rulings) is impermissible. Appellant’s Br. at 2-3; see SSR
11-2p, 2011 WL 4055665 (Sept. 12, 2011). This argument,
however, fails to address the circumstances of this case
and the ALJ’s opinion. The challenged accommodations were
only proposed by the vocational expert in response to a
hypothetical claimant who did not share Anselm’s residual
functional capacity. See 20 C.F.R. § 404.1546(c). When
asked about work corresponding to Anselm’s specific
residual functional capacity (as determined by the ALJ),
the expert testified that appropriate jobs existed in the

Bernanke’s conclusions themselves are inconsistent with the
medical record or cannot amount to substantial evidence.
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national market without accommodations. Tr. 117-19.
Substantial evidence therefore supports the ALJ’s
determination that Anselm was not impaired from performing
all available work. See 42 U.S.C. § 423(d)(2)(A).

     For the foregoing reasons, and finding no merit in
Anselm’s remaining arguments, we hereby AFFIRM the judgment
of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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