17‐1919‐cv Smith v. Commʹr of Soc. Sec. Admin.

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 24th day of April, two thousand eighteen.

PRESENT: RICHARD C. WESLEY, DENNY CHIN, Circuit Judges, DENISE COTE, Judge.*

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NANCY SMITH, Plaintiff‐Appellant,

v. 17‐1919‐cv

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant‐Appellee.

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FOR PLAINTIFF‐APPELLANT: Nancy Smith, pro se, Southington, Connecticut.

* Denise Cote, of the United States District Court for the Southern District of New York, sitting by designation.

FOR DEFENDANT‐APPELLEE: Elizabeth D. Rothstein, Special Assistant United States Attorney, Stephen P. Conte, Regional Chief Counsel – Region II, Office of the General Counsel, Social Security Administration, New York, New York, for John H. Durham, United States Attorney for the District of Connecticut, New Haven, Connecticut.

Appeal from the United States District Court for the District of

Connecticut (Chatigny, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Pro se plaintiff‐appellant Nancy Smith appeals the district courtʹs March

31, 2017 judgment affirming a final determination by the Commissioner of Social

Security (the ʺCommissionerʺ) denying her application for disability insurance benefits

and supplemental security income. On appeal, Smith principally contends that (1) the

Administrative Law Judge (the ʺALJʺ) erred by concluding that her substance abuse

was ʺa contributing factor material to the . . . determination that [she] is disabled,ʺ

(d)(2)(C), and (2) the ALJ improperly failed to defer to the opinion of one of

her treating physicians. We assume the partiesʹ familiarity with the underlying facts,

procedural history, and issues on appeal.

In 2012, Smith, then represented by counsel, applied for disability

insurance benefits and social security income, alleging disability based on depression,

anxiety, bipolar disorder, and neck and back pain. After her claims were denied

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initially and upon reconsideration, Smith requested a hearing before an ALJ. On

January 31, 2014, following a November 19, 2013 hearing at which Smith testified, the

ALJ concluded that Smithʹs substance use disorder was a contributing factor material to

the determination that she was disabled, because Smith would not be disabled if she

stopped the substance abuse. Therefore, Smith was not considered disabled under the

Social Security Act. On April 22, 2015, the Appeals Council denied Smithʹs request for

review of the ALJʹs decision, which then became the final decision of the Commissioner.

On June 8, 2015, Smith, proceeding pro se, filed suit seeking review of the

Commissionerʹs final decision pursuant to

(g). In a March 10, 2017

Report and Recommendation (the ʺR&Rʺ), the magistrate judge (Martinez, M.J.)

recommended affirming the Commissionerʹs decision. On March 31, 2017, the district

court (Chatigny, J.) approved and adopted the R&R and entered judgment in favor of

the Commissioner. Smith appealed.

ʺIn reviewing a district courtʹs decision upholding a decision of the

Commissioner, we ʹreview the administrative record de novo to determine whether there

is substantial evidence supporting the Commissionerʹs decision and whether the

Commissioner applied the correct legal standard.ʹʺ Zabala v. Astrue,

(2d Cir. 2010) (quoting Machadio v. Apfel,

(2d Cir. 2002)). ʺSubstantial

evidence is ʹmore than a mere scintillaʹ and ʹmeans such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.ʹʺ Greek v. Colvin,

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(2d Cir. 2015) (per curiam) (quoting Richardson v. Perales,

(1971)). Under this highly deferential standard of review, ʺ[i]f evidence is

susceptible to more than one rational interpretation, the Commissionerʹs conclusion

must be upheld.ʺ McIntyre v. Colvin,

(2d Cir. 2014).

First, substantial evidence supported the ALJʹs determination that Smith

was not disabled because her substance use was a contributing factor material to the

determination that she was disabled. An individual is not considered disabled ʺif

alcoholism or drug addiction would . . . be a contributing factor material to the

Commissionerʹs determination that the individual is disabled.ʺ

(d)(2)(C), 1382c(a)(3)(J). Drug addiction is a material factor if the individual

would not be found disabled if she stopped using drugs.

, 416.935.

The claimant bears the burden of proving that her drug addiction is not a material

factor. Cage v. Comm’r of Soc. Sec.,

, 123‐25 (2d Cir. 2012).

Here, Smith did not demonstrate that her substance abuse was not a

material factor, and substantial evidence supported the ALJʹs determination that it was.

Smithʹs medical records showed that her depression, anxiety, and bipolar disorder

symptoms were well‐managed through medications and that her functioning improved

when she underwent substance abuse treatment. Additionally, Smith herself reported

to her doctors that her substance abuse made her psychiatric conditions worse and that

she experienced improvements when sober.

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Second, the ALJ did not err by affording Dr. Stackʹs opinion little weight.

Under the treating physician rule, we generally afford controlling weight to the opinion

of a claimantʹs treating physician as long as it ʺis well‐supported by medically

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence in [the] case record.ʺ Burgess v. Astrue,

(2d

Cir. 2008) (alteration in original) (quoting

(c)(2)).1 But an opinion

need not be given controlling weight if it conflicts with ʺother substantial evidence in

the record,ʺ Halloran v. Barnhart,

(2d Cir. 2004) (per curiam), because

ʺ[g]enuine conflicts in the medical evidence are for the Commissioner to resolve,ʺ Veino

v. Barnhart,

(2d Cir. 2002). An ALJ who declines to afford controlling

weight to a treating physicianʹs opinion must give ʺgood reasonsʺ for the decision and

consider several factors in determining the appropriate weight, such as (1) the length,

nature, and extent of the relationship between the claimant and the physician, (2) the

supportability of the physicianʹs opinion, (3) the consistency of the physicianʹs opinion

with the record as a whole, and (4) the specialization of the physician providing the

opinion.

(c)(2)‐(5); see also Shaw v. Chater,

(2d Cir.

2000).

1 The Social Security Administration revised its medical source regulations in 2017, but the new regulations apply only to claims filed on or after March 27, 2017. Revisions to Rules Regarding the Evaluation of Medical Evidence,

(Jan. 18, 2017).

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Here, the ALJ properly afforded little weight to the opinion of Smithʹs

primary care physician, Dr. Stack, and set forth good reasons for doing so. First,

although Dr. Stack opined that Smith had significant psychiatric and physical

limitations, Dr. Stackʹs treatment records only reflect Smithʹs subjective complaints, and

contain no objective evidence of physical or psychiatric abnormalities ʺto support the

extent of limitation opined.ʺ Cert. Admin. R. 53. Second, before completing her

assessment, Dr. Stack saw Smith only four times, which the ALJ considered ʺunlikely to

provide an adequate basis for a thorough understandingʺ of Smithʹs conditions and

limitations.

Finally, as the ALJ found, Dr. Stackʹs opinion was inconsistent with

substantial evidence in the record.

We have considered Smithʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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