    17-2005-cv
    Smith v. Berryhill

                           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 29th day of June, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             CHRISTOPHER F. DRONEY,
                             Circuit Judges,
             STEFAN R. UNDERHILL,*
                             District Judge.

    - - - - - - - - - - - - - - - - - - - -X
    Ritchie Smith,
             Plaintiff-Appellant,

                 -v.-                                          17-2005-cv

    Nancy A. Berryhill, Acting
    Commissioner of Social Security,
             Defendant-Appellee.
    - - - - - - - - - - - - - - - - - - - -X

    FOR APPELLANT:                         Peter A. Gorton, Endicott, NY.

    FOR APPELLEE:                          June Byun, Special Assistant
                                           United States Attorney, on
                                           behalf of Grant C. Jaquith,
                                           United States Attorney for the

    * Judge Stefan R. Underhill, United States District Court
    for the District of Connecticut, sitting by designation.
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                           Northern District of New York
                           (Stephen P. Conte, Social
                           Security Administration of
                           Counsel, on the brief), New
                           York, New York.

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

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

     Ritchie Smith appeals from the judgment of the United
States District Court for the Northern District of New York
affirming the denial of his application for disability
insurance and supplemental security income under Titles II
and XVI of the Social Security Act (“Act”), 42 U.S.C. § 401
et seq., respectively. 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 do 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 of Social Security 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). See id. §§
404.1520(a)(4)(i), (ii). 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 id. §§ 404.1520(a)(4)(iii), 404.1520(d), 404.1525. If
not, the Commissioner considers whether there is sufficient
residual functional capacity (“RFC”) for the claimant to
return to past relevant work (step four). See id. §
404.1520(a)(4)(iv). If the claimant is too impaired to
                             2
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. See id. §
404.1520(a)(4)(v).

     Smith claims that he suffers from obesity,
fibromyalgia, carpal tunnel syndrome, sleep apnea,
bipolarity, depression, and pain from injuries to his left
knee, back, and spine. Smith first applied for disability
insurance benefits in June 2009 when he was recovering from
a 2007 surgery on his left knee. His application was
denied, and he requested a hearing before an administrative
law judge (“ALJ”). The ALJ’s initial decision was vacated
and remanded for further proceedings in 2014. Smith
appeared with counsel before ALJ Ramos for a second hearing
on December 16, 2014, at which the ALJ heard testimony from
Smith and a vocational expert, Mr. Pearson.

     The ALJ’s April 29, 2015 decision concluded that Smith
was not disabled. Smith’s knee replacements, carpal
tunnel, cervical spine degenerative disc disease, obesity,
fibromyalgia, and depression were deemed severe
impairments; but the ALJ determined that Smith did not
suffer from an impairment or combination of impairments
comparable in severity to one of the listed impairments
under the Act. See 20 C.F.R. §§ 404.1520(d), 404.1525 and
404.1526. The ALJ further concluded that Smith retained
the RFC to perform unskilled sedentary work with certain
limitations, see R. 726-34, and that while Smith could not
return to his past work in sanitation or manufacturing, he
could make an adjustment to other work existing in
significant numbers in the national economy. See R. 734-36
(citing testimony from the vocational expert that Smith
could work as a document preparer, food order clerk, or
printed circuit board touch up screener).

     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 the record de novo 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
                             3
F.3d 402, 408 (2d 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) (internal quotation marks
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).

     1. Smith argues that the ALJ’s disability decision is
not supported by substantial evidence because it rejects
the uncontradicted opinions of his treating physicians,
Drs. Wiesner, Mikloucich, and Fang, that he would be off-
task and absent for significant portions of the day and
month, respectively. In a 2011 medical questionnaire, Dr.
Fang expressed her opinion that Smith’s physical
conditions, namely his chronic neck and back pain and
fibromyalgia, severely disrupted his ability to concentrate
and sustain work pace. R. 542-44. Dr. Fang reasserted
that opinion in a 2012 deposition in which she also opined
that Smith’s limitations were exacerbated by his mental
health conditions. Id. at 706-12. In 2014, Drs. Fang,
Mikloucich, and Wiesner each opined that because of Smith’s
functional limitations, he would be off-task 15-33% of the
day and absent at least two-four days per month. See id.
at 1986-87 (finding by Dr. Fang that Smith would be off
task between 20-33% of the day and would be absent more
than four days per month), 2099-100 (finding by Dr.
Mikloucich that Smith would require rest at work, would be
off task 15-20% of the time, and would be absent two days
per month), 2089-90 (opinion of Dr. Wiesner that Smith
would be off task more than 33% of the day and would be
absent more than four days per month).

     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
                             4
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 the 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). A treating physician’s opinion may also
be rejected if it is internally inconsistent or otherwise
uninformative. Halloran v. Barnhart, 362 F.3d 28, 32 (2d
Cir. 2004); see also Micheli v. Astrue, 501 F. App’x 26, 28
(2d Cir. 2012) (summary order) (“A physician’s opinions are
given less weight when his opinions are internally
inconsistent.”). An ALJ must provide “good reasons” for
affording limited weight to the treating source’s opinion
and more weight to a non-treating source. Schaal v. Apfel,
134 F.3d 496, 505 (2d Cir. 1998); see 20 C.F.R.
§ 404.1527(c)(2).

     Here, the ALJ found that the opinions of all three
treating physicians were not supported by clinical and
diagnostic findings in the record, and that their
conclusions regarding Smith’s lack of focus and absenteeism
lacked support in their own treatment notes and examination
records. See R. 729 (Dr. Mikloucich), 731 (Dr. Weisner),
732 (Dr. Fang). Dr. Mikloucich, for example, who opined
that Smith would be off task more than a third of the day,
also expressed doubt that Smith qualified for disability.
R. 2181. Further, the ALJ gave “little evidentiary value”
to Dr. Mikoucich’s opinion because he had only been
treating Smith for a very short time and, at the time of
treatment, Smith’s conditions were “stable” and
“controlled.” R. 729.

     Dr. Wiesner’s July 2014 opinion that Smith would be off
task for more than a third of the day is undermined by his
treatment notes, as well as treatment notes by others in
his medical group, which show that Smith healed properly
after his knee surgery. See R. 664 (treatment note by Dr.
Weisner stating Smith’s incision is “well and benign” and
that there was no effusion or instability), 666 (treatment
note by Dr. Weisner’s colleague stating that Smith reported
“doing very well” and was taking pain medication.).



                             5
     The ALJ assigned “little weight” to Dr. Fang’s opinion
with respect to Smith’s work pace and concentration because
the ALJ interpreted her opinion to be based on Smith’s
mental condition, an opinion that did not follow from her
treatment history with Smith and fell outside her
specialization. R. 731-32 (citing R. 542-44); see also 20
C.F.R. § 404.1527(d)(2) (treating physician’s opinion
entitled to less weight when the opinion is not from a
specialist); Halloran, 362 F.3d at 32. Although Dr. Fang
testified in a 2012 deposition that Smith’s depression
exacerbated his pain, R. 710-11, it is clear from the
remainder of her testimony and treatment notes that Dr.
Fang’s opinion about Smith’s absenteeism and concentration
were based upon his physical limitations, not mental ones.
See R. 542-44 (2011 opinion that “chronic neck/back pain”
and fibromyalgia led to severe concentration and work pace
limitations), 710 (2012 testimony that fibromyalgia caused
Smith’s diminished concentration and work pace); see also
id. at 1986-88 (2014 opinion that “back pain, fibromyalgia”
caused limitations to Smith’s work pace and concentration
and led to increased absenteeism).

     The ALJ further limited the weight assigned to Dr.
Fang’s opinion because there was an “absence of clinical
and/or diagnostic findings to support the increased
limitations” as well as a gap in Dr. Fang’s treatment of
Smith from January 2011 to December 2013. R. 732. The
record reflects, however, that Dr. Fang treated Smith on
the following dates: July 14, 2011 (R. 1772); September 22,
2011 (R. 1770); November 3, 2011 (R. 1768); November 21,
2011 (R. 1766); February 6, 2012 (R. 1764); March 12, 2012
(R. 1762); April 18, 2012 (R. 1758); June 7, 2012 (R.
1754); September 18, 2012 (R. 1752); and January 22, 2013
(R. 1748).

     These treatment notes from Dr. Fang and her colleagues
at Comprehensive Pain Relief reflect that Smith’s condition
was “stable” and that he was in “no acute distress,”
although he consistently reported that his pain was at a
severity level of eight or more out of ten. R. 1741-1772,
1932-1984. The records further reflect, though, that Smith
reported that medication was helping with pain management.
R. 1749, 1942, 1947, 1952, 1957, 1963, 1969, 1980. In June
2013, Smith began receiving trigger point injections which
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also helped to relieve his fibromyalgia pain, R. 1941-42,
1963, which Smith reported in May 2014 to be “very
effective.” R. 1974. Notwithstanding the ALJ’s
mischaracterizations of Smiths’ treatment history with Dr.
Fang’s, the internal inconsistencies within Dr. Fang’s
treatment notes and the medical record provide a basis for
discounting her opinion as a treating physician. See
Halloran, 362 F.3d at 32; Micheli, 501 F. App’x at 28
(summary order); see also Fischer v. Bowen, 869 F.3d 1055,
1057 (7th Cir. 1989) (“No principle of administrative law
or common sense requires [a court] to remand a case in
quest of a perfect [ALJ] opinion[.]”).

     Other evidence in the record offers substantial
evidence to support the RFC ruling. The ALJ relied upon
the findings and conclusions of other treating physicians
such as Dr. Federowicz, and numerous consulting physicians
including Drs. Datta, Jenouri, and Schulman, in assessing
that Smith had the capacity for simple sedentary work. R.
730-31, 733. These physicians’ opinions and treatment
records contradict the substance of the claim that Smith’s
knee and back injuries keep him off-task or force him to be
absent from work four or more days a month. See, e.g.,
Garcia v. Colvin, No. 14-cv-4798, 2015 WL 4603422, at *6
(E.D.N.Y. Jul. 30, 2015) (permitting the non-treating
specialist to rebut the treating physician’s conclusions);
see also Snell, 177 F.3d at 133. The ALJ could have
reached a different conclusion on the disputed medical
record, but we defer to the ALJ’s disability determination
when it is supported by substantial evidence. Veino v.
Barnhart, 312 F.3d 578, 588-89 (2d Cir. 2002).

     Smith contends no physician contradicts the opinions of
Smith’s three treating physicians as to his ability to stay
on task and maintain regular attendance. Appellant’s Br.
at 19. But the ALJ was not required to identify evidence
explicitly rebutting the opinions of Smith’s treating
physicians before discounting or rejecting them. See
Halloran, 362 F.3d at 32 (holding that, although the ALJ
did not explicitly follow the treating physician rule, the
record and opinion made clear that the ALJ “applied the
substance” of the rule and the claimant “received the
rule’s procedural advantages”). The ALJ deemed aspects of
the treating physicians’ opinions critically flawed and
                             7
found that the opinions were inconsistent with other
substantial evidence. See Rosa, 168 F.3d at 78-79; see
also Burgess, 537 F.3d at 128.

     Lastly, the ALJ did not “arbitrarily substitute his own
judgment for competent medical opinion.” Balsamo v.
Chater, 142 F.3d 75, 81 (2d Cir. 1998). In Balsamo, it was
the Commissioner’s burden to demonstrate that the claimant
retained the functional capacity for certain work. Id. at
80. Here, Smith had a duty to prove a more restrictive
RFC, and failed to do so. 42 U.S.C. § 423(d)(5); cf. Barry
v. Colvin, 606 F. App'x 621, 622 (2d Cir. 2015) (summary
order) (“A lack of supporting evidence on a matter for
which the claimant bears the burden of proof, particularly
when coupled with other inconsistent record evidence, can
constitute substantial evidence supporting a denial of
benefits.”).

     2. Smith separately challenges the RFC on the ground
that the ALJ ignored evidence that Smith’s depressive
psychiatric state precluded even simple, low-stress work.
The ALJ reviewed the opinions of Dr. Legg and Ms. Hubbard
(a social worker), which considered Smith’s debilitating
mental limitations, but determined that they were
contradicted by other record evidence. R. 724-25.
Specifically, the treatment records of Nurse Practitioner
Cron, and Drs. Noia, Loomis, Russell, and Harding support a
finding that Smith’s depressive episodes, anxiety, and
mania would not prevent Smith from performing simple tasks.
R. 733; see R. 2184-98 (treatment records by Nurse
Practitioner Cron), 498-500 (examination record by Dr. Noia
that reflects Smith’s mental status was unremarkable), 515-
17 (conclusion of Dr. Harding in mental capacity assessment
that Smith retained the capacity for unskilled work). In
any event, the ALJ did list Smith’s depressive disorder as
a “severe” condition at step two of the sequential analysis
and measured his RFC accordingly. R. 720, 726.

     “[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) (citation omitted), and accept
the weight assigned to the inconsistent opinions as a
proper exercise of the ALJ’s discretion. See Veino, 312
F.3d at 588-89 (2d Cir. 2002); see also Diaz v. Shalala, 59

                             8
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.”).

     3. Smith argues that the testimony from the vocational
expert, Mr. Pearson, did not support the ALJ’s conclusion
that jobs exist in significant numbers in the national
economy within Smith’s RFC. This argument fails for the
same reason as Smith’s principal challenge to the RFC
discussed above. Smith criticizes the ALJ’s reliance on an
RFC that did not incorporate the functional limitations
asserted by Smith’s treating physicians regarding
attendance and ability to remain on task. But these
opinions were discounted, and their conclusions rejected.
The Commissioner’s burden at step five is to show the
existence of possible employment for an individual with the
RFC determined by the ALJ in the fourth step of the
sequential analysis. See 20 C.F.R. § 404.1546(c). It was
therefore proper for the vocational expert to respond to
hypotheticals premised on the ALJ’s RFC. R. 817-19.

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

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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