13‐2660‐cv Burnette 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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 30th day of April, two thousand fourteen.

PRESENT: JOHN M. WALKER, JR., DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

ELIZABETH ANN BURNETTE, Plaintiff‐Appellant,

‐v.‐ 13‐2660‐cv

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant‐Appellee. *

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: JAYA A. SHURTLIFF, Law Offices of Kenneth Heller, PLLC, Amherst, New York.

* The Clerk of the Court is directed to amend the caption accordingly. FOR DEFENDANT‐APPELLEE: PETER W. JEWETT, Special Assistant United States Attorney (Stephen P. Conte, Regional Chief Counsel, Office of the General Counsel, Social Security Administration, on the brief), for William J. Hochul, Jr., United States Attorney for the Western District of New York, New York, New York.

Appeal from the United States District Court for the Western District of

New York (Telesca, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Elizabeth Ann Burnette appeals from the district courtʹs

judgment entered July 9, 2013 dismissing her complaint with prejudice. Judgment was

entered pursuant to the district courtʹs July 8, 2013 decision and order, which affirmed a

decision of the Commissioner of Social Security (the ʺCommissionerʺ) denying

Burnetteʹs application for Supplemental Security Income (ʺSSIʺ) under Title XVI of the

Social Security Act,

et seq. We assume the partiesʹ familiarity with the

facts, procedural history, and issues on appeal.

On June 8, 2010, Burnette applied for SSI benefits claiming she was

disabled due to a back injury, spinal arthritis, deafness in one ear, and mental health

issues. The application was initially denied on August 6, 2010 and, after a hearing

before Administrative Law Judge Lawrence Levey, denied again on August 31, 2011.

Applying the five‐step sequential evaluation process for determining an SSI claimantʹs

‐ 2 ‐

disability, the ALJ concluded that: (1) Burnette had not engaged in substantial gainful

activity since the date of her application ; (2) her physical and mental health problems

amounted to a severe combination of impairments ; (3) her impairments did not, singly

or in combination, meet or medically equal any of the impairments listed in 20 C.F.R.

Part 404, Subpart P, Appendix 1; (4) she retained the residual functional capacity

(ʺRFCʺ) to perform light work with certain accommodations, but she had no past

relevant work experience; and (5) considering her age, education, work experience, and

RFC, there were other jobs available in the economy that she could perform. On March

26, 2011, the Office of Disability Adjudication and Review denied Burnetteʹs request for

review, rendering the ALJʹs decision final. The district court granted the

Commissionerʹs motion for judgment on the pleadings pursuant to Rule 12(c) of the

Federal Rules of Civil Procedure. On appeal, Burnette challenges the ALJʹs

determinations that: (1) her impairments in combination did not equal an Appendix 1

listing; (2) she had the RFC to perform light work; (3) she was not fully credible; and (4)

the vocational expertʹs testimony was reliable.

In reviewing a district courtʹs decision to uphold the denial of a social

security application, ʺit is not our function to determine de novo whether a plaintiff is

disabled.ʺ Brault v. Soc. Sec. Admin., Commʹr,

(2d Cir. 2012) (per

curiam) (internal quotation marks and alterations omitted). Rather, we ʺconduct a

plenary review of the administrative record to determine if there is substantial

‐ 3 ‐

evidence, considering the record as a whole, to support the Commissionerʹs decision

and if the correct legal standards have been applied.ʺ Burgess v. Astrue,

(2d Cir. 2008) (internal quotation mark omitted). Substantial evidence is ʺmore than

a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.ʺ

(internal quotation marks omitted).

1. Appendix 1 Listings

We agree with the district court that there is substantial evidence to

support the ALJʹs conclusion that Burnetteʹs impairments did not meet or medically

equal any of the impairments listed in Appendix 1. Burnette argues otherwise,

maintaining that her impairments satisfy Listing 12.05, which sets forth the conditions

under which a person is intellectually disabled. To satisfy Listing 12.05, the claimant

must make a threshold showing that she suffers from ʺsignificantly subaverage general

intellectual functioning with deficits in adaptive functioning.ʺ 20 C.F.R. Pt. 404, Subpt.

P, App. 1, § 12.05; see Talavera v. Astrue,

, 152‐53 (2d Cir. 2012). The

claimant must then demonstrate ʺ[t]he required level of severity for this disorderʺ under

Listing 12.05(A), (B), (C), or (D). Talavera,

. On appeal, Burnette

contends that her impairments satisfy Listing 12.05(B) or (C).

First, there is substantial evidence that Burnette did not suffer from the

requisite ʺdeficits in adaptive functioning.ʺ A person suffers from a deficit in adaptive

functioning if she is unable to satisfactorily ʺʹcope with the challenges of ordinary

‐ 4 ‐

everyday life,ʹʺ including ʺʹliving on oneʹs own,ʹ ʹtaking care of children without help

sufficiently well that they have not been adjudged neglected,ʹ ʹpaying bills,ʹ and

ʹavoiding eviction.ʹʺ

(alterations omitted) (quoting Novy v. Astrue,

(7th Cir. 2007)). Here, Burnette reported graduating from high school without

special education classes, maintaining a job for some time after high school, and briefly

attending college. Additionally, although she reported sometimes needing help with

cooking, cleaning, and laundry, she has nevertheless been able to live alone, obtain a

driverʹs license, take public transportation, shop for food, and pay her bills.

Second, there is, at any rate, substantial evidence to support the ALJʹs

conclusion that Burnetteʹs limitations were not at the ʺlevel of severityʺ necessary to

satisfy the additional requirements of Listing 12.05(B) or (C). Listing 12.05(B) requires

that the claimant have ʺ[a] valid verbal, performance, or full scale IQ of 59 or less.ʺ

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(B). Listing 12.05(C) requires that the claimant

have ʺ[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or

other mental impairment imposing an additional and significant work‐related

limitation of function.ʺ Id. § 12.05(C). To argue that her impairment satisfies Listing

12.05(B) or (C), Burnette points to the consultative psychological examination

conducted by Dr. Christine Ransom, which placed her overall IQ score at 57. The ALJ,

however, properly exercised his discretion in giving little weight to Dr. Ransomʹs

evaluation, as that evaluation was inconsistent with the record as a whole. Burnetteʹs

‐ 5 ‐

treating doctors regularly found that she suffered from no apparent cognitive

limitations or merely had poor concentration, and, as noted, Burnette did not need

special education classes in high school and even attended college. See Baszto v.

Astrue,

(N.D.N.Y. 2010) (ʺ[A]n ALJ may reject an IQ score as

invalid when it is inconsistent with the record.ʺ) (citing Lax v. Astrue,

(10th Cir. 2007) (noting that ALJ may consider other record evidence to determine

whether reported IQ score was ʺaccurate reflection of [claimantʹs] intellectual

capabilitiesʺ)); Vasquez‐Ortiz v. Apfel,

(W.D.N.Y. 1999); see also

Markle v. Barnhart,

(3d Cir. 2003); Clark v. Apfel,

(8th Cir. 1998); Muse v. Sullivan,

(5th Cir. 1991); Lowery v. Sullivan,

, 837‐39 (11th Cir. 1992).

2. The RFC Determination

Substantial evidence also supports the ALJʹs finding that Burnette could

perform limited ʺlight work as defined in 20 CFR 416.967(b).ʺ

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.

(b). In deciding that she could perform limited light work, the ALJ

relied on the evaluations of Burnette that suggest her physical and mental limitations

were mild or moderate and did not prevent her from performing the kind of work ‐ 6 ‐

detailed in § 416.967(b). For instance, Dr. Samuel Rosati, Burnetteʹs treating physician,

regularly found in numerous evaluations that Burnette suffered no acute distress; had a

normal range of motion, gait, and strength; and sometimes had mild or moderate

physical pain, which her medication generally relieved. In addition, Dr. T. Harding, a

non‐examining medical consultant, opined that Burnette ʺretains the ability to perform

simple work on a sustained basis.ʺ Thus, in relying on Burnetteʹs treating doctors as

well as other record evidence, the ALJ was well supported in his RFC determination.

See Green‐Younger v. Barnhart,

(2d Cir. 2003) (ʺSSA regulations advise

claimants that ʹa treating sourceʹs opinion on the issue(s) of the nature and severity of

your impairment(s)ʹ will be given ʹcontrolling weightʹ if the opinion is ʹwell supported

by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in your case record.ʹʺ (alterations

omitted) (quoting

(d)(2)).

3. The Credibility Determination

An ALJ ʺis not required to accept the claimantʹs subjective complaints

without question; he may exercise discretion in weighing the credibility of the

claimantʹs testimony in light of other evidence in the record.ʺ Genier v. Astrue,

(2d Cir. 2010) (per curiam). Here, the ALJ found inconsistencies between

Burnetteʹs statements and the evidence. As discussed, the evidence suggested that

Burnette only suffered mild or moderate physical and mental health problems, in

‐ 7 ‐

contrast to her claims of more intense and persistent problems. Thus, the ALJ acted

well within his discretion in concluding that Burnette was less than credible on at least

some of her claims.

4. The Vocational Expert Testimony

Burnette claims the RFC determination was not supported by substantial

evidence, and it was therefore improper for the ALJ to rely on responses to hypothetical

questions posed to the vocational expert that were based on that RFC. Because we have

determined that the RFC determination was indeed supported by substantial evidence,

Burnetteʹs argument is unavailing. See Dumas v. Schweiker,

, 1553‐54 (2d

Cir. 1983).

We have considered plaintiffʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

‐ 8 ‐