18-2646
Guerra v. Saul

                            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
4th day of October, two thousand nineteen.

Present:         GUIDO CALABRESI,
                 ROSEMARY S. POOLER,
                 DEBRA ANN LIVINGSTON,
                           Circuit Judges.

_____________________________________________________

VICKI GUERRA,

                              Plaintiff-Appellant,

                       v.                                                  18-2646-cv

ANDREW SAUL1, COMMISSIONER OF SOCIAL SECURITY,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:      Amy Chambers, Law Offices of Kenneth Hiller, PLLC, Amherst,
                              N.Y.

Appearing for Appellee:       Heather Sertial, Special Assistant United States Attorney (Ellen E.
                              Sovern, Acting Regional Chief Counsel-Region II, Office of the
                              General Counsel, Social Security Administration, on the brief), for


        Andrew Saul is automatically substituted as a party in this case pursuant to Federal Rule
        1

of Appellate Procedure 43(c)(2).
                              James P. Kennedy, Jr., United States Attorney for the Western
                              District of New York, Syracuse, N.Y.

Appeal from the United States District Court for the Western District of New York (Telesca, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Vicki Guerra appeals from the August 8, 2018 judgment of the United States
District Court for the Western District of New York (Telesca, J.), affirming an administrative
law judge’s May 7, 2015 denial of Guerra’s application for Social Security disability insurance
benefits after concluding that Guerra was not disabled. We assume the parties’ familiarity with
the underlying facts, procedural history, and specification of issues for review.

        “On appeal, we conduct a plenary review of the administrative record to determine if
there is substantial evidence, considering the record as a whole, to support the Commissioner’s
decision and if the correct legal standards have been applied.” Shaw v. Chater, 221 F.3d 126, 131
(2d Cir. 2000). 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). “When deciding an appeal from a denial of disability
benefits, we focus on the administrative ruling rather than the district court’s opinion.” McIntyre
v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (internal quotation marks omitted).

        Guerra’s arguments on appeal concern the weight the ALJ assigned to the opinions of
various treating physicians. Specifically, Guerra argues that the ALJ erred when giving less than
controlling weight to the medical opinions of several treating physicians when making his
physical and mental Residual Functioning Capacity (“RFC”) findings. In cases centering on the
ALJ’s assessment of the proper weight to be given a treating physician’s opinion, our recent
opinion in Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019), lays out the analysis which courts
should perform. Estrella emphasizes that, when assigning less than “controlling weight” to the
treating physician’s opinion, the ALJ must “explicitly consider” the four factors announced in
Burgess v. Astrue, 537 F.3d 117 (2008).2 Estrella, 925 F.3d at 95 (internal quotation marks
omitted). A failure to “explicitly consider” these factors is a procedural error warranting remand
unless a “searching review of the record assures the reviewing court that the substance of the
treating physician rule is not traversed.” Id. at 95-96. To put it simply, a reviewing court should
remand for failure to explicitly consider the Burgess factors unless a searching review of the
record shows that the ALJ has provided “good reasons” for its weight assessment. Id. While the
ALJ here did not always explicitly consider the Burgess factors when assigning the treating
physician’ opinions less than controlling weight, we nonetheless conclude that the ALJ provided
sufficient “good reasons” for the weight assigned.



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         Those factors are “(1) the frequen[cy], length, nature, and extent of treatment; (2) the
amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.” Estrella, 925 F.3d at
95-96 (citation omitted).


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        Guerra’s first argument on appeal is that the ALJ failed to justify his physical RFC
finding of light work with substantial evidence. As noted above, an ALJ generally must give
controlling weight to the medical opinions of treating and examining sources. 20 C.F.R.
§ 404.1527(c). Nonetheless, Guerra’s argument that the ALJ erred by not assigning controlling
weight to assessments made by her treating physicians in connection with workers’
compensation forms they filled out is meritless. The ALJ correctly found that the assessments
were contradicted by other evidence in the record, and he explained why he was not giving
greater weight to those specific opinions insofar as they were only conclusory; they stated
contradictory things; they ran contrary to the treatment records; they ran contrary to Guerra’s
testimony; and they were vague, of unspecified duration, and conditioned on scheduled surgical
procedures. Supported by ample treatment notes, physical examination findings, and Guerra’s
testimony, the ALJ’s assignment of less than controlling weight to Guerra’s treating physician’s
opinions was not in error. As a result, the ALJ’s physical RFC determination is supported by
substantial evidence.

        Guerra’s second argument, that the ALJ failed to justify his mental RFC finding with
substantial evidence, also fails. For the same reasons that the ALJ declined to assign controlling
weight to the physical assessments, he appropriately explained why he did not give significant
weight to certain opinions of the treating physicians concerning Guerra’s mental limitations. The
mental assessment provided by Dr. Mendonza, as explained by the ALJ, was belied by other
medical evidence in the record, including treatment notes, Guerra’s testimony, and other medical
reports. The ALJ properly assigned significant weight to the consultative psychologist who
examined Guerra. As required by statute, the ALJ considered various factors in attributing
weight to the consultative psychologist’s medical opinions, including: the consistency of the
opinions with the record, “the amount of understanding of . . . disability programs and their
evidentiary requirements that a medical source has, regardless of the source of that
understanding, and the extent to which a medical source is familiar with the other information in
[the claimant’s] case record.” 24 CFR 404.1527(c)(6); see also Estrella, 925 F.3d at 95. Because
the ALJ considered each of these factors, he did not err by assigning significant weight to Dr.
Baskin’s opinion, finding that it was consistent with her examination and with Guerra’s
longitudinal treatment history.

        Guerra also challenges on the basis that the Appeals Council refused to consider evidence
she submitted after the ALJ issued his decision. The regulations provide that the Appeals
Council “will” consider “new” and “material” evidence that relates to the period on or before the
date of the ALJ hearing decision. 20 C.F.R. §§ 404.970(a)(5), 416.1470(b). Guerra submitted to
the Appeals Council an assessment done by an occupational therapist and other physician
treatment notes from after the relevant time period. None of the new material purported to be
retroactive. We agree with the Commission that it did not relate to the relevant period, so it was
not material to the ALJ decision. “The concept of materiality requires . . . a reasonable possibility
that the new evidence would have influenced the [Commissioner] to decide claimant’s
application differently.” Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (quoting Tirado v.
Bowen, 842 F.2d 595, 597 (2d Cir. 1988)).




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        We have considered the remainder of Guerra’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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