     12-2198
     Prince 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 A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of
 2       Appeals for the Second Circuit, held at the Thurgood
 3       Marshall United States Courthouse, 40 Foley Square, in the
 4       City of New York, on the 14th day of March, two thousand
 5       thirteen.
 6
 7       PRESENT: DENNIS JACOBS,
 8                              Chief Judge,
 9                ROSEMARY S. POOLER,
10                              Circuit Judge.
11                ERIC N. VITALIANO,
12                              District Judge.*
13
14       - - - - - - - - - - - - - - - - - - - -X
15       STEPHANIE PRINCE,
16                Plaintiff-Appellant,
17
18                      -v.-                                                   12-2198
19
20       MICHAEL J. ASTRUE, COMMISSIONER OF
21       SOCIAL SECURITY,
22                Defendant-Appellee,
23       - - - - - - - - - - - - - - - - - - - -X


                *
               The Honorable Eric N. Vitaliano, District Judge of
         the United States District Court for the Eastern District of
         New York, sitting by designation.
                                                  1
 1
 2   FOR APPELLANT:             MARK SCHNEIDER, Plattsburgh, New
 3                              York.
 4
 5   FOR APPELLEES:             MICHELLE L. CHRIST, Special
 6                              Assistant United States Attorney
 7                              (Stephen P. Conte, Regional
 8                              Chief Counsel, on the brief),
 9                              for Richard S. Hartunian, United
10                              States Attorney for the Northern
11                              District of New York, Syracuse,
12                              New York.
13
14        Appeal from a judgment of the United States District
15   Court for the Northern District of New York (Homer, M.J.)
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18   AND DECREED that the judgment of the district court be
19   AFFIRMED.
20
21        Stephanie Prince appeals from the judgment of the
22   United States District Court for the Northern District of
23   New York (Homer, M.J.) granting the motion for judgment on
24   the pleadings of defendant-appellee Michael J. Astrue,
25   Commissioner of the Social Security Administration,
26   affirming the denial of Prince’s claim for disability
27   benefits, and denying Prince’s request for consideration of
28   new evidence. We assume the parties’ familiarity with the
29   underlying facts, the procedural history, and the issues
30   presented for review.
31
32        Prince applied for disability benefits on January 27,
33   2005, alleging an inability to work due to anxiety,
34   fibromyalgia, migraines, bipolar disorder, and chronic pain.
35   Following hearings in March 2007 and February 2010,
36   Administrative Law Judge (“ALJ”) Carl E. Stephen denied
37   Prince’s application because, while several of her
38   conditions constituted severe impairments, she still
39   retained the residual functional capacity to perform
40   unskilled light work. On May 24, 2012, the district court
41   held that the ALJ’s decision was supported by substantial
42   evidence.
43
44        On appeal, Prince argues that the district court erred
45   in upholding the ALJ’s determination that she was neither
46   physically nor mentally disabled.
47

                                  2
 1        “When deciding an appeal from a denial of disability
 2   benefits, we focus on the administrative ruling rather than
 3   the district court’s opinion.” Green-Yougner v. Barnhart,
 4   335 F.3d 99, 105 (2d Cir. 2003) (internal quotation marks
 5   omitted). “In reviewing the district court’s decision, we
 6   undertake our own plenary review of the administrative
 7   record.” Schall v. Apfel, 134 F.3d 496, 500-01 (2d Cir.
 8   1998) (citation and internal quotation marks omitted). A
 9   court may set aside the Commissioner’s decision only if it
10   is based upon legal error or if his factual findings are not
11   supported by substantial evidence in the record as a whole.
12   See 42 U.S.C. § 405(g); Burgess v. Astrue, 537 F.3d 117, 128
13   (2d Cir. 2008). Substantial evidence is “more than a mere
14   scintilla” and “means such relevant evidence as a reasonable
15   mind might accept as adequate to support a conclusion.”
16   Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
17   quotation marks omitted).
18
19        The district court properly rejected Prince’s
20   contention that the ALJ erred in not finding that her
21   fibromyalgia constituted a per se disability under Appendix
22   1 of the regulations. 20 C.F.R. Part 404, Subpart P,
23   Appendix 1. “[M]ere diagnosis of fibromyalgia without a
24   finding as to the severity of symptoms and limitations does
25   not mandate a finding of disability[.]” Rivers v. Astrue,
26   280 F. App’x 20, 22 (2d Cir. 2008); see also Selian v.
27   Astrue, No. 12-871, 2013 WL 627702, --- F.3d --- (2d Cir.
28   Feb. 21, 2013).   Furthermore, the ALJ’s residual functional
29   capacity determination, which took into account Prince’s
30   fibromyalgia, was supported by substantial evidence. Drs.
31   Todd D. Daugherty and Edward S. Leib, rheumatologists who
32   first diagnosed Prince with fibromyalgia, noted that
33   Prince’s “joints and muscles are essentially healthy” and
34   encouraged her to pursue employment, recreational activity,
35   and exercise. JA 197. Dr. Nader Wassef observed normal
36   reflexes, a full range of motion, and full strength in
37   Prince’s extremities, and advised her only to avoid any form
38   of “extreme body contact.” JA 237. Similarly, Dr. David G.
39   Welch observed “relatively little physical pathology . . .
40   other than a clear-cut diagnosis of fibromyalgia” and found
41   that Prince had excellent strength, sensation, and range of
42   motion in her core and in all four extremities. JA 307-09.
43
44        Prince argues that the ALJ erred by refusing to give
45   controlling weight to the opinion of Dr. Kokernot, a
46   treating physician, who concluded that Prince had extreme
47   limitations in her ability to carry out detailed

                                  3
 1   instructions and respond appropriately to workplace
 2   pressures, as well as marked limitations in a number of
 3   areas. If the ALJ had accepted Dr. Kokernot’s opinion,
 4   Prince’s mental impairments would have necessitated a
 5   finding of disability. See 20 C.F.R. Part 404, Subpart P,
 6   Appendix 1, Sections 12.04, 12.06; 20 C.F.R. § 404.1520a.
 7   However, because Dr. Kokernot’s opinion was inconsistent
 8   with other substantial evidence in the record, the ALJ
 9   committed no error in rejecting his opinion. See 20 C.F.R.
10   § 404.1527(c)(2). Four other physicians--Dr. Welch, Dr.
11   Abdul Hameed, Dr. Brett Hartman, and Dr. Aaron Satloff–-
12   determined that Prince’s mental limitations did not preclude
13   her from performing all work. An ALJ is not required to
14   accept the opinion of a treating physician over other
15   contrary opinions, if the latter are more consistent with
16   the weight of the evidence. See Diaz v. Shalala, 59 F.3d
17   307, 313 n.5 (2d Cir. 1995) (“[T]he opinions of nonexamining
18   sources [can] override treating sources’ opinions provided
19   they are supported by evidence in the record.”); see also
20   Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
21
22        For the foregoing reasons, and finding no merit in
23   Prince’s other arguments, we hereby AFFIRM the judgment of
24   the district court.
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK
28




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