09-4088-cv
Stanton 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. WHEN
CITING A SUM M ARY ORDER IN A D O CUM 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 24 th day of March, two thousand ten.

PRESENT:            REENA RAGGI,
                    PETER W. HALL,
                              Circuit Judges,
                    GREGORY W. CARMAN,
                              Judge.*

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HOLLY STANTON,
                                                   Plaintiff-Appellant,
                               v.                                                     No. 09-4088-cv

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

APPEARING FOR APPELLEE:                                       M ICHELLE L. CHRIST, Special Assistant
                                                              United States Attorney (Stephen P. Conte, Acting


          *
        Judge Gregory W. Carman of the United States Court of International Trade, sitting
by designation.
                                          Regional Chief Counsel, Region II, Office of the
                                          General Counsel, Social Security Administration,
                                          of counsel), for Richard S. Hartunian, United
                                          States Attorney for the Northern District of New
                                          York, New York, New York.

       Appeal from the United States District Court for the Northern District of New York

(Lawrence E. Kahn, Judge; Victor E. Bianchini, Magistrate Judge).

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

DECREED that the judgment entered on July 7, 2009, is AFFIRMED.

       Holly Stanton appeals from the district court’s affirmance of the Social Security

Commissioner’s denial of disability insurance benefits. “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) (making Commissioner’s factual findings conclusive

if supported by substantial evidence). “Substantial evidence . . . means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay

v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotation marks omitted).

In undertaking this review, we assume the parties’ familiarity with the facts and procedural

history, which we reference only as necessary to explain our decision.




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       1.     The Step Two Assessment

       Stanton submits that the administrative law judge (“ALJ”) erred at the second of the

five steps of analysis used to determine disability, see 20 C.F.R. § 404.1520(a)(4), by failing

to recognize that she suffered from disc herniation constituting a severe impairment. Stanton

waived this argument by not raising it in the district court. See Poupore v. Astrue, 566 F.3d

at 306. Although Stanton contends that she preserved the argument by “alleg[ing] disability

based upon herniated cervical discs,” Appellant’s Reply Br. at 2, the record is to the contrary.

The references to disc herniation in Stanton’s opening brief to the district court are embedded

in highly technical, factual discussion. No such reference appears as part of her argument

to the court. Thus, although Magistrate Judge Bianchini twice referenced disc herniation in

his report to the district court, he did not identify ALJ error at step two because Stanton had

not raised such a claim. Moreover, Stanton did not complain of any omission in her various

objections to the district court. Accordingly, we deem the argument waived.1

       2.     Stanton’s Residual Functional Capacity

       Stanton contends that the ALJ erred in determining that she had the residual functional

capacity (“RFC”) to work as a circuit board assembler. Because the onset date of Stanton’s

       1
         Even if we were to reach the merits of Stanton’s argument, we would not identify
error warranting remand because the ALJ did identify severe impairments at step two, so that
Stanton’s claim proceeded through the sequential evaluation process. Further, contrary to
Stanton’s argument, the ALJ’s decision makes clear that he considered the “combination of
impairments” and the combined effect of “all symptoms” in making his determination. ALJ
Op. at 5; see also 42 U.S.C. § 423(d)(2)(B) (requiring consideration of “combined effect of
all of the individual’s impairments”); accord 20 C.F.R. § 404.1523.

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claimed impairment is October 5, 2004, she bore the burden of proving otherwise. See

Clarification of Rules Involving Residual Functional Capacity Assessments, 68 Fed. Reg.

51,153, 51,154-55 (Aug. 26, 2003); see also Poupore v. Astrue, 566 F.3d at 306 (observing

that even 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”).

       Stanton nevertheless faults the ALJ for failing to cite medical evidence to support his

RFC determination and to provide the requisite narrative discussion of RFC. See Assessing

Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *7 (July 2,

1996). She further complains that the ALJ failed to follow the treating physician rule. See

20 C.F.R. § 404.1527(d)(2). We are not persuaded.

       The record shows that the ALJ considered the medical opinions of treating physician

Dr. Norman Lasda and consulting physician Dr. Kalyani Ganesh. Because Dr. Lasda’s

opinion was unsupported by objective clinical evidence and contradicted by his own records,

the examination report of Dr. Ganesh, the report of a state agency disability analyst, and

Stanton’s own account of her range of activities, the ALJ did not err in declining to accord

it controlling weight. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (observing

that treating physician’s opinion “is not afforded controlling weight” where it is “not

consistent with other substantial evidence in the record, such as the opinions of other medical

experts”); cf. 20 C.F.R. § 404.1527(d)(2) (according controlling weight to treating

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physician’s opinion if “well-supported by medically acceptable clinical and laboratory

diagnostic techniques and . . . not inconsistent with other substantial evidence in . . . case

record”). Indeed, the noted contradictory evidence provides the requisite substantial support

for the Commissioner’s RFC determination.

       3.     The Adverse Credibility Assessment

       Stanton faults the ALJ’s adverse credibility finding as to her claim of disabling pain.

“It is the function of the [Commissioner], not the [reviewing courts], to resolve evidentiary

conflicts and to appraise the credibility of witnesses, including the claimant.” Aponte v.

Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (second alteration

in original) (internal quotation marks omitted). We have no reason to second-guess the

credibility finding in this case where the ALJ identified specific record-based reasons for his

ruling. See Assessing the Credibility of an Individual’s Statements, SSR 96-7p, 61 Fed. Reg.

34,483, 34,486 (July 2, 1996). For example, the ALJ noted the discrepancy between

Stanton’s asserted inability to move her neck and her testimony that she was able to drive and

perform household chores. No different conclusion is warranted by the ALJ’s failure to

reference specifically Stanton’s good work history, because substantial evidence aside from

work history supports the adverse credibility ruling. See Schaal v. Apfel, 134 F.3d 496, 502

(2d Cir. 1998).




                                              5
       4.     Stanton’s 2006 Work Activity

       Stanton asserts, without citation to any precedent, that her 2006 work assembling

circuit boards from home should have been viewed as a “trial work period” not bearing on

her disability claim. In fact, the relevant statutes and regulations do not support this

argument. They provide that when a person “becomes entitled to disability insurance

benefits,” 42 U.S.C. § 422(c)(3) (emphasis added), she may “test [her] ability to work and

still be considered disabled,” 20 C.F.R. § 404.1592(a). During the trial period, “any services

rendered by an individual . . . shall be deemed not to have been rendered by such individual

in determining whether [her] disability has ceased in a month during such period.” 42 U.S.C.

§ 422(c)(2) (emphasis added); see also 20 C.F.R. § 404.1592(a). Here, the ALJ did not use

evidence of Stanton’s 2006 work activity for the prohibited purpose of determining if a

disability had ceased. Rather, the ALJ used the evidence to evaluate the consistency and

credibility of Stanton’s claim of the commencement of a disability. Whatever arguments

might be advanced for encouraging trial work periods by persons uncertain as to their

disability status, until Congress provides otherwise, we identify no error in an ALJ

considering evidence of work activity in deciding an initial disability claim. As we observed

in Gold v. Secretary of Health, Education & Welfare, an ALJ considering a disability claim

has a duty “to scrupulously and conscientiously probe into, inquire of, and explore for all the

relevant facts.” 463 F.2d 38, 43 (2d Cir. 1972) (internal quotation marks omitted)




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       5.     Past Relevant Work

       Stanton submits that the ALJ erred in determining that she had the RFC to perform

her past relevant work as a circuit board assembler without consulting a vocational expert.

Because substantial evidence supports the ALJ’s RFC determination – notably, Stanton’s

actual performance of circuit board assembly work during the period of alleged disability –

we conclude that the opinion of a vocational expert was not required. Cf. 20 C.F.R.

§ 404.1560(b)(2) (observing that ALJs “may use the services of vocational experts” to obtain

evidence necessary to help determine whether claimant can do past relevant work (emphasis

added)). Accordingly, we identify no merit in this challenge. See id. § 404.1560(b)(3)

(stating that person found to “have the residual functional capacity to do [her] past relevant

work” will be found “not disabled”).

       We have considered Stanton’s remaining arguments on appeal and conclude that they

lack merit. Accordingly, we AFFIRM the judgment of the district court.

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




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