     15-2087
     Camille v. Colvin

                          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 Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of June, two thousand sixteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                RALPH K. WINTER,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       BRIAN MICHAEL CAMILLE,
13                Plaintiff-Appellant,
14
15                    -v.-                                               15-2087
16
17       CAROLYN W. COLVIN, Acting Commissioner
18       of Social Security,
19                Defendant-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        JUSTIN GOLDSTEIN, Law Offices of
23                                             Kenneth Hiller PLLC, Amherst,
24                                             New York.
25
26       FOR APPELLEE:                         SERGEI ADEN, Special Assistant
27                                             United States Attorney (Stephen
28                                             P. Conte, Regional Chief

                                                  1
 1                              Counsel, on the brief), Office
 2                              of the General Counsel, Region
 3                              II, Social Security
 4                              Administration, New York, New
 5                              York, for William J. Hochul,
 6                              Jr., United States Attorney for
 7                              the Western District of New
 8                              York.
 9
10        Appeal from a judgment of the United States District
11   Court for the Western District of New York (Wolford, J.).
12
13        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
14   AND DECREED that the judgment of the district court be
15   AFFIRMED.
16
17        Brian Michael Camille appeals from the judgment of the
18   United States District Court for the Western District of New
19   York (Wolford, J.), dismissing Camille’s complaint
20   challenging the denial of disabled adult child’s benefits
21   under Title II and supplemental security income under Title
22   XVI of the Social Security Act (the “Act”).1 We assume the
23   parties’ familiarity with the underlying facts, the
24   procedural history, and the issues presented for review.
25
26        When considering a denial of disability benefits, we
27   conduct a plenary review of the administrative record, and
28   “focus on the administrative ruling rather than the district
29   court’s opinion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
30   Cir. 2009) (quoting Kohler v. Astrue, 546 F.3d 260, 264-65
31   (2d Cir. 2008)). We must uphold the denial if “there is
32   substantial evidence, considering the record as whole, to
33   support the Commissioner’s decision and if the correct legal
34   standards have been applied.” Burgess v. Astrue, 537 F.3d
35   117, 128 (2d Cir. 2008) (quoting Shaw v. Chater, 221 F.3d
36   126, 131 (2d Cir. 2000)); see also 42 U.S.C. § 405(g).
37   “‘Substantial evidence’ is evidence that amounts to ‘more
38   than a mere scintilla,’ and has been defined as ‘such
39   relevant evidence as a reasonable mind might accept as
40   adequate to support a conclusion.’” McIntyre v. Colvin, 758


         1
           Camille alleged an onset date of November 1, 2009; to
     be eligible for disabled adult child’s benefits he was
     required to show that his disability began before August 29,
     2010, his 22nd birthday. See 42 U.S.C. § 402(d)(1); 20
     C.F.R. § 404.350.
                                  2
 1   F.3d 146, 149 (2d Cir. 2014) (quoting Richardson v. Perales,
 2   402 U.S. 389, 401 (1971)).
 3
 4        Camille challenges the Administrative Law Judge’s
 5   (“ALJ”) residual functional capacity (“RFC”) finding as to
 6   Camille’s mental limitations. The ALJ found that Camille
 7   had the RFC “to perform medium work . . . except that he is
 8   limited to simple routine and repetitive tasks; he requires
 9   low stress work, defined as no production paced work,
10   occasional changes to work setting, occasional use of
11   judgment, and occasional decision making; he is limited to
12   occasional and superficial interaction with coworkers and
13   supervisors; he should have no interaction with the public;
14   he should have no exposure to hazards; and he should have no
15   more than frequent exposure to humidity, extremes in
16   temperature, and wetness.” Certified Administrative R.
17   (“R.”) at 53. He contends that this finding was not
18   supported by substantial evidence, because the ALJ
19   improperly weighed the medical opinion evidence, attributing
20   “little weight” to the opinions of Camille’s treating
21   psychiatrist, Dr. Dawood, and “great weight” to the opinion
22   of the State agency consulting psychologist, Dr. Kamin. We
23   disagree.
24
25        Pursuant to the “treating physician rule,” Dr. Dawood’s
26   opinion “as to the nature and severity of [Camille’s]
27   impairment is given ‘controlling weight’ so long as it ‘is
28   well-supported by medically acceptable clinical and
29   laboratory diagnostic techniques and is not inconsistent
30   with the other substantial evidence in [the] case record.’”
31   Burgess, 537 F.3d at 128 (emphasis added) (quoting 20 C.F.R.
32   § 404.1527[(c)](2)). “[T]he opinion of the treating
33   physician is not afforded controlling weight where . . . the
34   treating physician issued opinions that are not consistent
35   with other substantial evidence in the record, such as the
36   opinions of other medical experts.” Halloran v. Barnhart,
37   362 F.3d 28, 32 (2d Cir. 2004) (per curiam) (citation
38   omitted). If a treating physician’s opinion is not afforded
39   controlling weight, the ALJ must consider certain factors to
40   determine how much weight to give it, and should articulate
41   “good reasons” for the weight given. Id.; see also 20
42   C.F.R. § 404.1527(c)(2).
43
44        Substantial evidence supports the limited weight that
45   the ALJ attributed Dr. Dawood’s opinions, because they were
46   in conflict with content in that doctor’s own clinical


                                  3
 1   notes,2 and in conflict with the opinion of Dr. Kamin. R.
 2   at 55-57. Furthermore, each of the check-box forms Dr.
 3   Dawood completed specifically requested narrative
 4   explanation of any opined limitations--particulars he
 5   declined to provide. See R. at 291, 376-77, 385-86.
 6   Additionally, the ALJ specifically noted that Camille’s
 7   record of psychiatric treatment was “intermittent,”
 8   including a six-month gap between his first and second
 9   appointments with Dr. Dawood. R. at 55, 57. These
10   constitute “good reasons” for the limited weight attributed.
11   Halloran, 362 F.3d at 32 (factors include, inter alia,
12   frequency of examination; the evidence in support of the
13   opinion; the consistency of the opinion with the record as a
14   whole; other factors that tend to support or contradict the


         2
           This includes, e.g., Dr. Dawood’s relatively
     consistent descriptions of Camille’s intact cognitive and
     communicative skills, R. at 281, 284-85, 338, 341, 348, 360,
     365, 367, 371, 379 (describing Camille as attentive, fully
     communicative, coherent, with logical thinking and intact
     memory/cognitive function); the recommendation that Camille
     participate in Vocational and Education Services for
     Individuals with Disabilities, R. at 278, 280, 389;
     see Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per
     curiam) (ALJ’s finding that claimant was capable of
     performing light work supported by reports of treating
     orthopedic specialist, which consistently stated that
     claimant “would be an excellent candidate for vocational
     rehabilitation”); and Camille’s consistently moderate Global
     Assessment of Functioning (“GAF”) scores, R. at 280, 283,
     338, 341, 363, 366, 369, 371.

          Camille concedes that GAF scores are “one factor to
     consider” in determining a claimant’s RFC, but argues that
     the ALJ here erred because (1) she relied on them
     exclusively, and (2) Dr. Dawood did not assess Camille’s GAF
     scores on days of “worsening or increased symptoms,”
     although he identifies only one such day, in January 2012.
     Br. of Appellant at 54-55. The record does not indicate
     that the ALJ relied on Camille’s GAF scores to the exclusion
     of other evidence; and Camille does not explain how a single
     day of allegedly increased symptoms in 2012 is material to
     Camille’s burden to show disability that lasted or was
     expected to last for a continuous period of at least twelve
     months (beginning in November 2009). See 42
     U.S.C. § 1382c(a)(3)(A).
                                  4
 1   opinion); see also 20 C.F.R. § 404.1527(c)(3) (“The better
 2   an explanation a source provides for an opinion, the more
 3   weight we will give that opinion.”). To the extent Camille
 4   argues that the ALJ was insufficiently explicit in
 5   articulating her rationale, we disagree. See Cichocki v.
 6   Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (“An ALJ need
 7   not recite every piece of evidence that contributed to the
 8   decision, so long as the record ‘permits us to glean the
 9   rationale of an ALJ’s decision.’” (quoting Mongeur v.
10   Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam))).3
11
12        Camille argues that it is “improper to reject a
13   treating physician’s opinion solely based upon the treating
14   physician’s own treatment notes.” Br. of Appellant at 32
15   (citing Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
16   In Balsamo, the ALJ rejected the treating source’s opinion
17   notwithstanding the lack of a contrary medical opinion. We
18   held that “[w]hile an ALJ is free . . . to choose between
19   properly submitted medical opinions, he is not free to set
20   his own expertise against that of a physician who submitted
21   an opinion to or testified before him.” 142 F.3d at 81
22   (brackets omitted) (quoting McBrayer v. Sec’y of HHS, 712
23   F.2d 795, 799 (2d Cir. 1983)). Here, there was such a
24   contrary opinion. The ALJ was permitted to consider Dr.
25   Dawood’s treatment notes in weighing the opinions of Dr.
26   Dawood and Dr. Kamin; and she was permitted to conclude that
27   Dr. Kamin’s opinion was more reliable. See Diaz v. Shalala,
28   59 F.3d 307, 313 n.5 (2d Cir. 1995) (“[T]he regulations . .
29   . permit the opinions of nonexamining sources to override
30   treating sources’ opinions provided they are supported by
31   evidence in the record.”); cf. Mongeur, 722 F.2d at 1039
32   (“[T]he opinion of a treating physician is not binding if it
33   is contradicted by substantial evidence, and the report of a
34   consultative physician may constitute such evidence.”
35   (citation omitted)).
36


         3
            Camille contends that the ALJ “failed to evaluate or
     weigh [Dr. Dawood’s] opinion from October 12, 2011.” Br. of
     Appellant at 48. While the ALJ’s written decision did not
     specifically reference this document, “an ALJ is not
     required to discuss every piece of evidence submitted. An
     ALJ’s failure to cite specific evidence does not indicate
     that such evidence was not considered.” Brault v. SSA,
     Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam)
     (internal quotation marks and citation omitted).
                                  5
 1        We cannot say that the ALJ erred in the application of
 2   the regulatory factors to Dr. Kamin’s opinion. Although the
 3   ALJ did not describe in detail her rationale, we can infer
 4   from the decision that she attributed “great weight” to the
 5   opinion because she found it most consistent with the record
 6   as a whole, including: Dr. Dawood’s treatment notes;
 7   treatment notes from Camille’s social worker (Patrice
 8   Goodrich); Camille’s daily activity reports; and Camille’s
 9   credible testimony. Cichocki, 729 F.3d at 178 n.3; see also
10   Halloran, 362 F.3d at 31–32 (affirming ALJ opinion which did
11   “not expressly acknowledge the treating physician rule,” but
12   where “the substance of the treating physician rule was not
13   traversed” (internal quotation marks omitted)).
14   Furthermore, Dr. Kamin is a specialist and an Agency
15   consultant (an “expert[] in the evaluation of the medical
16   issues in disability claims under the Act,” SSR 96-6p, 1996
17   WL 374180, at *2 (July 2, 1996)), and his check-box opinions
18   were supplemented by narrative explanation. See 20 C.F.R.
19   § 404.1527(c)(3)-(6).4


         4
           Camille argues that Dr. Kamin’s opinion is not
     substantial evidence because it is “stale.” Dr. Kamin
     issued his opinion in November 2011; Camille was initially
     denied benefits in December 2011; and the ALJ hearing
     occurred September 2012. Between November 2011 and
     September 2012, Camille argues, additional treatment records
     (dated January 2012 to July 2012) and two of Dr. Dawood’s
     opinions (dated June 2011 and August 2012) were submitted
     into evidence--so Dr. Kamin did not review these materials.
     Br. of Appellant at 32-37.

          No case or regulation Camille cites imposes an
     unqualified rule that a medical opinion is superseded by
     additional material in the record, and in this case the
     additional evidence does not raise doubts as to the
     reliability of Dr. Kamin’s opinion. Cf. Hidalgo v. Bowen,
     822 F.2d 294, 295-96, 298 (2d Cir. 1987) (opinion based on
     incomplete medical record was undermined by its conflict
     with opinions of two treating physicians, which were
     supported by extensive X-ray evidence, hospital reports, and
     treatment notes over an 18-month period; and may have been
     altered by review of the additional medical records
     containing clinical findings confirming treating physicians’
     diagnosis), limited by regulation as stated in Schisler v.
     Sullivan, 3 F.3d 568 (2d Cir. 1993). While a bit more
     detailed, Dr. Dawood’s June 2011 and August 2012 opinions do
                                  6
 1
 2        For substantially the reasons discussed above, and
 3   those explained in the district court’s opinion, the ALJ’s
 4   RFC finding was supported by substantial evidence,
 5   including: Dr. Kamin’s opinion; Dr. Dawood’s treatment
 6   notes; the treatment notes of Ms. Goodrich; Camille’s daily
 7   activity reports; and Camille’s credible testimony.5
 8
 9        For the foregoing reasons, and finding no merit in
10   Camille’s other arguments, we hereby AFFIRM the judgment of
11   the district court.
12
13                              FOR THE COURT:
14                              CATHERINE O’HAGAN WOLFE, CLERK
15




     not differ materially from the October 2011 opinion, which
     Dr. Kamin did review: all three opined that Camille had
     limitations related to concentration, persistence, social
     interaction, and adaption, and that he was unable to work.
     R. at 290-91, 376-78, 385-87.
         5
           The ALJ used Dr. Kamin’s opinion as the basis for the
     RFC but incorporated additional limitations based on, inter
     alia, the testimony of Camille that she credited. An ALJ
     may accept parts of a doctor’s opinion and reject others.
     Veino v. Barnhart, 312 F.3d 578, 588-89 (2d Cir. 2002); see
     also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (“Although
     we consider opinions from medical sources on issues such as
     . . . your residual functional capacity . . . the final
     responsibility for deciding these issues is reserved to the
     Commissioner.”).
                                  7
