     15-4016
     Krull 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   27th day of September, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            DEBRA A. LIVINGSTON,
 8                          Circuit Judges,
 9
10                JED S. RAKOFF,*
11                              District Judge.
12
13   - - - - - - - - - - - - - - - - - - - -X
14   Jo Ann Krull,
15            Plaintiff-Appellant,
16
17                -v.-                                           15-4016
18
19   Carolyn W. Colvin, Acting Commissioner
20   of Social Security,
21             Defendant-Appellee.
22
23   - - - - - - - - - - - - - - - - - - - -X
24

          *    The Honorable Jed S. Rakoff, Judge for the United
     States District Court for the Southern District of New York,
     sitting by designation.
                                                1
 1   FOR APPELLANT:                JAYA SHURTLIFF, Stanley Law
 2                                 Offices, Syracuse, NY.
 3
 4   FOR APPELLEE:                 LAUREN E. MYERS, Special Assistant
 5                                 United States Attorney, with
 6                                 Stephen P. Conte, Regional Chief
 7                                 Counsel - Region II Office of the
 8                                 General Counsel, Social Security
 9                                 Administration, for Richard S.
10                                 Hartunian, United States Attorney
11                                 for the Northern District of New
12                                 York.
13
14        Appeal from a judgment of the United States District Court
15   for the Northern District of New York (Hurd, J.).
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
18   DECREED that the judgment of the district court be AFFIRMED.
19
20        Jo Ann Krull alleges that she became disabled in 2010 and
21   appeals from the denial of her claim for Disability Insurance
22   Benefits by the Social Security Administration. She appeared
23   at a video hearing with an Administrative Law Judge (“ALJ”) with
24   the assistance of a non-attorney representative. The ALJ
25   considered her case de novo and issued a written decision finding
26   that Krull was not disabled. The Appeals Council denied review
27   and the district court (Hurd, J.) affirmed the decision of the
28   ALJ. On appeal, Krull principally argues (as she did before the
29   district court) that the ALJ’s finding of her residual functional
30   capacity, and the ALJ’s finding that she was capable of
31   performing her past work, were not supported by substantial
32   evidence; and that the ALJ did not properly evaluate her
33   credibility.

34        We review the administrative record de novo, and will uphold
35   the ALJ’s decision if it is supported by substantial evidence
36   and the correct legal standards were applied. See Zabala v.
37   Astrue, 595 F.3d 402, 408 (2d Cir. 2010); Talavera v. Astrue,
38   697 F.3d 145, 151 (2d Cir. 2012) (“Substantial evidence . . . .
39   means such relevant evidence as a reasonable mind might accept
40   as adequate to support a conclusion.” (internal quotation marks
41   omitted)). We assume the parties’ familiarity with the

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 1   underlying facts, the procedural history, and the issues
 2   presented for review.

 3        1.   The ALJ followed the five-step analysis promulgated
 4   by the Social Security Administration at 20 C.F.R. § 404.1520(a).
 5   Most of that analysis is unchallenged; Krull’s challenge is to
 6   the ALJ’s finding that Krull had the residual functional capacity
 7   to perform a range of light work, as defined by 20 C.F.R.
 8   § 404.1567(b), and that she could perform her past relevant work
 9   as a data entry pharmaceutical orders clerk.

10        Krull argues that the ALJ “cherry-picked” evidence
11   regarding her mental health and substituted his lay judgment
12   for the competent medical opinions of two examining doctors who
13   opined that she had moderate difficulty performing complex tasks
14   and maintaining social functioning. We conclude that the ALJ’s
15   decision gave appropriate (partial) evidentiary weight to those
16   doctors’ opinions, and is largely consistent with them; the ALJ
17   declined to adopt the moderate limitations those doctors
18   identified because their opinions are contradicted by evidence
19   in the record. Specifically, the ALJ observed that Krull was
20   able to work notwithstanding mental health symptoms: she took
21   prescription antidepressants, sought no other treatment, and
22   continued--according to her own testimony--to engage in
23   moderately complex tasks such as helping with the care of her
24   grandchildren, using computers, and other daily activities.

25        The opinions of examining physicians are not controlling
26   if they are contradicted by substantial evidence, be that
27   conflicting medical evidence or other evidence in the record.
28   See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Krull’s
29   disagreement is with the ALJ’s weighing of the evidence, but
30   the deferential standard of review prevents us from reweighing
31   it. The ALJ’s finding of residual functional capacity applies
32   the correct legal standard and is supported by substantial
33   evidence.

34        2.   The same is true of the ALJ’s finding that Krull was
35   capable of performing past relevant work. For a job to qualify
36   as past relevant work, the claimant must have performed it long
37   enough to have learned to do it. 20 C.F.R. § 404.1560(b)(1).
38   Krull worked as a data entry pharmaceutical orders clerk for


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 1   three months. The ALJ identified that position as having a
 2   specific vocational profile of four according to the Dictionary
 3   of Occupational Profiles, which classifies it as semi-skilled
 4   and requiring the typical worker three to six months to learn.
 5   Krull therefore argues that she did not spend enough time in
 6   the job for it to qualify as past relevant work, and that moderate
 7   limitations relating to mental health might pose obstacles to
 8   performing the job. The typical three-to-six-month learning
 9   period, however, does not constitute a six-month minimum, and
10   the ALJ did not err by concluding that she did the work long
11   enough to have learned how to perform it. Further, Krull
12   apparently left the job voluntarily--not for reasons related
13   to her mental health--and worked in another semi-skilled
14   position in the same industry (as a pharmacy technician) both
15   before she started that job and after she left it. Therefore,
16   and given the ALJ’s residual functional capacity finding, the
17   ALJ’s determination as to past relevant work is supported by
18   substantial evidence.

19        3.   Krull also argues that the ALJ erred in the credibility
20   assessment. We disagree. When determining residual
21   functional capacity, the ALJ must take the claimant’s subjective
22   report of limitations into account, but “he may exercise
23   discretion in weighing the credibility of the claimant’s
24   testimony in light of the other evidence in the record.” Genier
25   v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). The ALJ largely
26   credited Krull’s account of her symptoms, but found her testimony
27   only partially credible with respect to the intensity of some
28   of her symptoms and the resulting limitations. We agree with
29   the district court that the ALJ engaged in a thorough narrative
30   discussion of the record evidence in order to arrive at that
31   conclusion, and that the credibility determination was within
32   the bounds of discretion.

33        Accordingly, and finding no merit in plaintiff’s other
34   arguments, we hereby AFFIRM the judgment of the district court.

35                                 FOR THE COURT:
36                                 CATHERINE O’HAGAN WOLFE, CLERK




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