09-1699-cv
Mancuso v. Astrue

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 14 th day of January, two thousand ten.

PRESENT:         RALPH K. WINTER,
                 REENA RAGGI,
                 DEBRA ANN LIVINGSTON,
                                          Circuit Judges.
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YVETTE MANCUSO,
                                 Plaintiff-Appellant,
                         v.                                            No. 09-1699-cv

MICHAEL J. ASTRUE, Commissioner of Social
Security,
                                 Defendant-Appellee.
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APPEARING FOR APPELLANT:                          MARK SCHNEIDER, Plattsburgh, New York.

APPEARING FOR APPELLEE:                           SO M M ATTIE RAM RUP, Special Assistant
                                                  United States Attorney (Stephen P. Conte, Acting
                                                  Chief Counsel, Region II, Office of the General
                                                  Counsel, Social Security Administration, on the
                                                  brief) for Andrew T. Baxter, Interim United States
                                                  Attorney for the Northern District of New York.
       Appeal from the United States District Court for the Northern District of New York

(Randolph F. Treece, Magistrate Judge).

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

DECREED that the judgment of the district court, entered on March 31, 2009, is

AFFIRMED.1

       Yvette Mancuso appeals from a district court order affirming the Commissioner of

Social Security’s (the “Commissioner”) denial of her application for disability insurance and

supplemental security income benefits under the Social Security Act. We assume the parties’

familiarity with the district court’s detailed and thoughtful memorandum of March 31, 2009,

as well as the facts and record of prior proceedings, including the findings of Administrative

Law Judge (“ALJ”) Carl E. Stephan. We reference these materials only as necessary to

explain our decision to affirm.

       1.     Standard of Review

       “When a district court has reviewed a determination of the Commissioner, we review

the administrative record de novo to determine whether there is substantial evidence

supporting the Commissioner’s decision and whether the Commissioner applied the correct

legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (internal quotation

marks and alteration omitted); see also 42 U.S.C. § 405(g) (providing that Commissioner’s



       1
        This case was assigned to Magistrate Judge Randolph Treece on January 25, 2007
with the consent of both parties.

                                              2
factual findings are conclusive if supported by substantial evidence). Substantial evidence

is “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

       2.     Residual Functional Capacity

              a.     Burden of Proof

       Mancuso argues that the Commissioner failed to prove at the fifth and final step of the

“sequential evaluation process” used to determine disability, see 20 C.F.R. § 404.1520(a),

that she retained the residual functional capacity (“RFC”) sufficient to meet the demands of

light work. We note at the outset the parties’ dispute over the relevant burden of proof. The

Commissioner urges application of regulations passed in 2003 that clarify that at step five,

“the Commissioner need only show that there is work in the national economy that the

claimant can do; he need not provide additional evidence of the claimant’s residual

functional capacity.”     Poupore v. Astrue, 566 F.3d at 306; see also 20 C.F.R.

§ 404.1560(c)(2). Mancuso argues that this regulation does not apply to her case, as she

alleges a disability arising before 2003. She asserts that the Commissioner was obliged to

prove her RFC to perform light work. We left this question open in Poupore v. Astrue, 566

F.3d at 306, and need not conclusively decide the issue here because the ALJ’s determination

that Mancuso could perform light work was supported by substantial evidence.2



       2
      In light of this conclusion, we need not address the Commissioner’s argument that
Mancuso waived her burden challenge.

                                              3
               b.      Treating Physician Rule

       Mancuso claims that the ALJ’s findings with respect to her ability to perform light

work are infected by his failure to apply the “treating physician rule.” The argument is

without merit. It is true, as Mancuso argues, that treating physicians noted pain, depression,

and anxiety, but these observations were accepted by the ALJ and incorporated into his

analysis. His determination that these concerns did not rise to a level sufficient to preclude

work was supported by substantial evidence, as discussed in the next section.

               c.      Substantial Evidence of Mancuso’s Ability to Perform Light Work

       Light work requires the ability to lift up to 20 pounds occasionally, lift 10 pounds

frequently, stand and walk for up to 6 hours a day, and sit for up to two hours. See 20 C.F.R.

§ 404.1567(b); Program Policy Statement, Titles II and XVI: Determining Capability To Do

Other Work – The Medical-Vocational Rules of Appendix 2, SSR 83-10, 1983 WL 31251,

at *5-6. The ALJ’s finding that Mancuso had the RFC to perform light work was supported

by objective evidence of physical examinations at which physicians reported Mancuso’s full

range of motion and strength in her upper and lower extremities, ability to walk without

difficulty, and lack of muscle atrophy. Further, upon review of all medical evidence,

consulting physician Dr. Richard Goodman reported that Mancuso suffered no limitations

in her ability to lift, carry, stand, walk, sit, push, or pull.

       Mancuso argues that the ALJ nevertheless failed adequately to consider the effects of

specific impairments, including fibromyalgia and obesity. We reject these arguments as


                                                  4
unsupported by the record, largely for the reasons stated by the district court. As to obesity,

medical reports referencing Mancuso’s weight failed to identify limitations therefrom, and,

as already noted, no limitations sufficient to preclude light work were identified upon

physical examination of Mancuso’s overall condition. Thus, there is no factual basis for

thinking that “any additional and cumulative effects of obesity” limited Mancuso’s ability

to perform light work. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00Q.

       Mancuso’s contention that her psychiatric impairments rendered her unable to work

is similarly unsupported by the record. While Dr. Richard Liotta reported that Mancuso

suffered “serious impairment in social and occupational functioning,” R. at 274, the ALJ

properly considered this evidence and ultimately concluded that the impairment did not

preclude Mancuso from performing light work. This determination is substantially supported

by the reports of Drs. Annette Payne, Richard Weiss, and Aaron Satloff. Dr. Satloff, who

was subject to written cross-examination, stated that Mancuso had no limitation in her ability

to understand, remember, and carry out short, simple instructions or to interact appropriately

with co-workers and supervisors. See 20 C.F.R. § 404.1520(c) (stating that impairment must

“significantly limit[] . . . physical or mental ability to do basic work activities” to constitute

“severe impairment” required for disability finding).

       Mancuso asserts that the ALJ improperly discounted her subjective allegations of pain

in assessing RFC. We disagree. The ALJ accepted Mancuso’s pain as a factor limiting her

abilities and precluding heavy work. Nevertheless, his determination that the pain was not


                                                5
sufficient to preclude light work was supported by the objective medical evidence and by the

reports of Dr. Amelita Balagtas and Dr. Goodman.3 See Aponte v. Sec’y, Dep’t of Health

& Human Servs. of U.S., 728 F.2d 588, 591 (2d Cir. 1984).

       On the totality of the record, we conclude that substantial evidence supports the ALJ’s

determination that Mancuso can perform light work.4

       3.     The Vocational Expert

       To the extent the ALJ relied on a vocational expert to make the findings required by

20 C.F.R § 404.1560(c)(2), Mancuso argues further that the hypothetical provided to the

vocational expert failed accurately to reflect her impairments. The argument fails because

the ALJ’s hypothetical mirrored Mancuso’s RFC, which, as described supra Part.2c, was

supported by substantial evidence in the record. The Commissioner may rely on a vocational

expert’s testimony concerning the availability of jobs suited to a hypothetical person’s

capabilities so long as the hypothetical is based on substantial evidence. See Dumas v.


       3
         Like the district court, we reject as unsubstantiated Mancuso’s argument that the
reports and testimony of Dr. Goodman were tainted by bias.
       4
         That Mancuso received a favorable decision on a subsequent application for benefits
does not alter our analysis, as the ALJ in the second case based his determination that
Mancuso was disabled as of May 31, 2006, on medical evidence produced after this case was
decided. See Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (observing that new
evidence is material only where there exists “a reasonable possibility that the new evidence
would have influenced the Commissioner to decide claimant’s application differently”
(internal quotation marks and alteration omitted)).




                                              6
Schweiker, 712 F.2d 1545, 1553-54 (2d Cir. 1983). Thus we conclude that the ALJ’s

reliance on the vocational expert’s testimony here was proper.

       4.     Compliance with the Remand Order

       Mancuso’s argument that the ALJ failed to comply with the Appeals Council remand

order is unsupported by the record. The remand order instructed the ALJ to (1) obtain

updated medical records, (2) evaluate the severity and effects of Mancuso’s mental

impairments in accordance with applicable regulations, (3) reconsider Mancuso’s RFC and

provide a rationale for the resulting assessment based on the evidence, and (4) if warranted,

obtain evidence from a vocational expert. Like the district court, we conclude that the record

reflects the ALJ’s compliance with each of these instructions.

       In sum, we conclude that the record provides substantial evidence to support the

ALJ’s denial of benefits. “Where the Commissioner’s decision rests on adequate findings

supported by evidence having rational probative force, we will not substitute our judgment

for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). We

have considered all of Mancuso’s remaining arguments and conclude that they are without

merit. Accordingly, the judgment of the district court is AFFIRMED.




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

                            By:



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