11-1700-cv
Whipple 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 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 2nd day of May, two thousand twelve.

PRESENT: GUIDO CALABRESI,
         REENA RAGGI,
                  Circuit Judges.*

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DANIEL WHIPPLE,
                                       Plaintiff-Appellant,
                             v.                                                         No. 11-1700-cv

MICHAEL J. ASTRUE, Commissioner of Social Security,
                     Defendant-Appellee.
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APPEARING FOR APPELLANT:                                   KAREN SOUTHWICK, Olinsky & Shurtliff,
                                                           Syracuse, New York.

APPEARING FOR APPELLEE:                                    MICHELLE L. CHRIST, Special Assistant
                                                           United States Attorney (Stephen P. Conte,
                                                           Regional Chief Counsel, Office of the General
                                                           Counsel, Social Security Administration, on the
                                                           brief), for Richard S. Hartunian, United States
                                                           Attorney for the Northern District of New York,
                                                           New York, New York.


          *
        Judge Robert D. Sack, who was a member of this panel, recused himself. The
remaining two panel members agree on the disposition and decide this appeal pursuant to
Second Circuit Internal Operating Procedure E(b).
       Appeal from a judgment of the United States District Court for the Northern District

of New York (Glenn T. Suddaby, Judge; David E. Peebles, Magistrate Judge).

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

DECREED that the judgment entered on March 31, 2011, is AFFIRMED.

       Plaintiff Daniel Whipple appeals from the district court’s affirmance of a decision of

the Commissioner of Social Security (“Commissioner”) denying Whipple’s application for

Social Security disability benefits. In such a case, we review the administrative record de

novo and will uphold the Commissioner’s decision if it is supported by substantial evidence

and the correct legal standards were applied. See Zabala v. Astrue, 595 F.3d 402, 408 (2d

Cir. 2010); see also Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (“Substantial

evidence . . . . means such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” (internal quotation marks omitted)). In applying these standards

here, we assume the parties’ familiarity with the facts and record of prior proceedings, which

we reference only as necessary to explain our decision to affirm.

1.     Residual Functional Capacity Determination

       Whipple contends that the Administrative Law Judge (“ALJ”) applied the wrong legal

standard in determining his Residual Functional Capacity (“RFC”), and that the ALJ’s RFC

determination is not supported by substantial evidence. We are not persuaded by either

argument.

       Whipple faults the ALJ for not determining Whipple’s RFC by reference to the four

factors set forth in agency regulations for evaluating the severity of a mental impairment.

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See 20 C.F.R. § 404.1520a(c)(3)–(4). The regulations make clear that those factors are only

to be applied in determining the severity of a mental impairment, the third step prescribed

by the disability evaluation guidelines, not a claimant’s RFC, which is relevant to the

guidelines’ fourth and fifth steps. See id. § 404.1520a(d) (stating that factors are used to

“determine the severity of [claimant’s] mental impairment(s),” and that ALJ will assess

claimant’s RFC only after determining that impairment is severe but inconsistent with listed

medical disorder); see also id. § 404.1520(a)(4)(iii)–(v) (stating that, at third step of disability

analysis, Commissioner considers “medical severity” of claimant’s impairment, which

precedes any RFC determination); see generally Perez v. Chater, 77 F.3d 41, 46 (2d Cir.

1996) (describing five-step process for evaluating disability claims). Further, the ALJ

considered each of these four factors, finding that Whipple had mild limitations in daily

living activities; moderate limitations in social functioning and concentration, persistence,

or pace; and only one reported instance of decompensation. Those findings led the ALJ to

conclude that Whipple’s impairments were in fact severe, which prompted him then to

consider whether Whipple was capable of performing work available in the economy.

Whipple does not contest the merits of the ALJ’s findings as to the severity of his mental

impairments, and we conclude that the ALJ did not err as a matter of law in his application

of these four factors.

       We also reject Whipple’s argument that the ALJ’s RFC determination is not supported

by substantial evidence insofar as the ALJ ignored certain medical records. Contrary to

Whipple’s representations, the ALJ did consider the observations and opinions of Dr. Kristen

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Barry, who examined Whipple at the Social Security Administration’s request, and Dr.

Thomas Harding, who independently reviewed Whipple’s medical records. The ALJ,

however, concluded that Barry’s and Harding’s testimony showed that Whipple was only

mildly and moderately impaired by his depression and anxiety, and that their views

ultimately supported the determination that Whipple was capable of performing work that

“involved simple tasks and allowed for a low-stress environment.” App. 28.

       Insofar as Whipple now faults the ALJ for failing to obtain, over Whipple’s objection,

the opinions of his treating physician, Whipple failed to raise this claim before the magistrate

judge or the district court. We therefore deem the issue forfeited. See Poupore v. Astrue,

566 F.3d 303, 306 (2d Cir. 2009). Even if we were to reach the issue, however, we would

not identify any legal error warranting remand. The ALJ had comprehensive medical notes

from Dr. Roger Levine, Whipple’s treating physician, from before and after March 31, 2006,

the alleged disability onset date. In those notes, Dr. Levine observed that Whipple was

capable of working and that Whipple’s depression and anxiety were manageable with

medication. The records that the ALJ obtained from Dr. Levine, which stated that Whipple

was capable of returning to work and even encouraged him to do so, were adequate for the

ALJ to determine Whipple’s disability. See 20 C.F.R. § 404.1512(e) (2008) (stating that

Commissioner will “recontact . . . treating physician” only if that physician’s information is

“inadequate” to determine whether claimant is disabled); accord Perez v. Chater, 77 F.3d at

47. Therefore, the ALJ was not obligated to obtain more information from Whipple’s

treating physician. See id. at 47–48.

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2.     Credibility Determination

       Whipple claims that the ALJ committed legal error and lacked substantial evidence

in discrediting Whipple’s statements that his mental impairments significantly limited his

ability to perform full-time work. We disagree.

       In determining that Whipple was capable of performing a job with simple tasks in a

low-stress environment, the ALJ applied the agency guidelines for assessing the “intensity,

persistence, and limiting effects” of Whipple’s mental impairments. App. 26; see 20 C.F.R.

§ 404.1529. Under those regulations, the ALJ was required (1) to consider “all of the

available evidence,” including Whipple’s own statements, the observations and opinions of

Whipple’s treating physicians, and the observations and opinions of other medical

professionals who examined Whipple or reviewed his records; and (2) to weigh Whipple’s

statements against the objective evidence, including medical records, of his symptoms. See

20 C.F.R. § 404.1529(c)(1), (4). The ALJ applied that exact standard in concluding that

Whipple was not disabled and, therefore, did not commit an error of law. Specifically, the

ALJ considered Whipple’s statements that his impairments were intense, persistent, and

limiting, but ultimately discredited that testimony because of the wealth of conflicting

evidence from treating physicians, other medical professionals, and Whipple’s own

description of his daily living activities and employment as a truck driver between July 2007

and January 2008.     That conflicting evidence showed that Whipple was capable of

performing work notwithstanding his impairments, and is more than sufficient for us to

conclude that the ALJ’s credibility determination is supported by substantial evidence. See

Moran v. Astrue, 569 F.3d at 112.

                                             5
3.     Failure to Call a Vocational Expert

       The ALJ did not err by relying on the Social Security Administration’s medical-

vocational guidelines, see 20 C.F.R. Part 404, Subpart P, App. 2, rather than calling a

vocational expert to evaluate whether Whipple was capable of performing work in the

national economy. A vocational expert would have been necessary only if Whipple’s mental,

or non-exertional, impairments “significantly limit[ed] the range of work permitted by his

exertional limitations” to the point that the medical-vocational guidelines did not adequately

reflect his condition. Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (internal quotation

marks omitted); accord Zabala v. Astrue, 595 F.3d at 410–11. Here, the ALJ found that

Whipple had no exertional limitations and that his “ability to perform work at all exertional

levels has not been compromised by nonexertional limitations.” App. 29. Whipple does not

challenge this finding as unsupported by substantial evidence. We thus identify no legal

error in the ALJ’s decision not to call a vocational expert to testify based on the finding that

Whipple’s mental impairments did not significantly limit his ability to work. See Bapp v.

Bowen, 802 F.2d at 605–06.

4.     Substantial Gainful Activity Between July 2007 and Jaunuary 2008

       Whipple asserts that the ALJ applied the wrong legal standard in concluding that

Whipple engaged in substantial gainful activity by working as a truck driver for a freight

company between July 2007 and January 21, 2008, the day of his administrative hearing.

See 20 C.F.R. § 404.1520(a)(4)(i) (stating that, at first step in determining whether claimant

is disabled, Commissioner considers “work activity” and will not find claimant disabled if

                                               6
he is “doing substantial gainful activity”). According to Whipple, the ALJ ignored

Whipple’s unemployment between March 31, 2006 and July 2007, and failed to consider

Whipple’s subsequent employment as a “trial work period” under 20 C.F.R. § 404.1592(a).

Because we affirm the ALJ’s conclusion that Whipple was not disabled during his period of

unemployment, we must reject Whipple’s argument insofar as he was “not entitled to

disability insurance benefits,” a prerequisite to obtaining a trial work period under agency

regulations. 20 C.F.R. § 404.1592(d)(2).

5.     Conclusion

       We have considered Whipple’s remaining arguments and conclude that they are

without merit. The judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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