17‐1651‐cv Negron v. Berryhill

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 26th day of April, two thousand eighteen.

PRESENT: GUIDO CALABRESI, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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LUZ CELENIA NEGRON, Plaintiff‐Appellant,

v. 17‐1651‐cv

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY,* Defendant‐Appellee.

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* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Commissioner Nancy A. Berryhill is automatically substituted for former Commissioner Carolyn Colvin.

FOR PLAINTIFF‐APPELLANT: SARAH H. BOHR, Bohr & Harrington, LLC, Atlantic Beach, Florida, and Sharmine Persaud, Persaud & Zeltmann, Massapequa, New York.

FOR DEFENDANT‐APPELLEE: CANDACE SCOTT APPLETON, Assistant U.S. Attorney (Varuni Nelson, Arthur Swerdloff, Assistant United States Attorneys, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.

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

New York (Spatt, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

Plaintiff‐appellant Luz Celenia Negron appeals the district courtʹs March

31, 2017 order and judgment upholding the decision of the Commissioner of Social

Security (the ʺCommissionerʺ) to deny Negronʹs application for disability benefits. We

assume the partiesʹ familiarity with the underlying facts, procedural history, and issues

on appeal.

In 2012, Negron applied for social security disability and supplemental

security income benefits, claiming that she had been unable to work since 2008 due to

lower back pain. After her claims were denied on January 31, 2013, Negron requested a

hearing before an ALJ. Following a November 26, 2013 hearing, on January 17, 2014,

the ALJ (Weiss, A.L.J.) issued a decision concluding that Negron was not disabled

because she had the residual functional capacity to perform ʺless than a full range of

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light work,ʺ as defined in

(b) and

(b), and was

capable of performing her past relevant work as a cashier and an assembler. Tr. 15. On

April 16, 2015, the Appeals Council denied Negronʹs request for review of the ALJʹs

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

On May 1, 2015, Negron filed suit seeking review of the Commissionerʹs

final decision pursuant to

(g). The district court (Spatt, J.) upheld the

Commissionerʹs decision on March 31, 2017, and this appeal followed.

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,

(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). Upon such

review, we conclude that the ALJʹs determination that Negron was not disabled was

supported by substantial evidence.

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Although the ALJ did not explicitly discuss the treating physician rule,

ʺthe substance of the treating physician rule was not traversed.ʺ Halloran v. Barnhart,

(2d Cir. 2004) (per curiam). We generally afford controlling weight to

the opinion of a claimantʹs treating physician, but an opinion need not be given

controlling weight if it conflicts with ʺother substantial evidence in the recordʺ because

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

v. Barnhart,

(2d Cir. 2002). Here, Dr. Parkerʹs medical source statement

was ʺinconsistent with [his] office visit notesʺ and ʺthe assessed limitations [were]

disproportionate to the clinical findings.ʺ Tr. 19. In addition to those discrepancies,

substantial evidence in the record as a whole contradicted Dr. Parkerʹs opinion. Hence,

the ALJ was permitted to give Dr. Parkerʹs opinion ʺlittle weight.ʺ

We also conclude that the ALJʹs determination that Negron has the

residual functional capacity to perform past relevant work was supported by

substantial evidence. Although an ALJ ʺis not free to set his own expertise against that

of a physician,ʺ Burgess v. Astrue,

(2d Cir. 2008) (quoting Balsamo v.

Chater,

(2d Cir. 1998)), the ʺultimate determination of whether a person

has a disability within the meaning of the Act belongs to the Commissioner,ʺ Greek,

. Absent Dr. Parkerʹs medical source statement, which the ALJ could

properly discount in this case, there was no medical reason to conclude that Negron

could not perform past relevant work.

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The ALJʹs credibility determination was also supported by substantial

evidence. An ALJ is required to consider a claimantʹs reports about her symptoms and

limitations,

(a), but 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 the other evidence in the record,ʺ Genier v. Astrue,

(2d Cir. 2010). Here, Negronʹs reports of when her symptoms

commenced and their severity were not consistent.

Given the degenerative nature of Negronʹs back condition, the situation

might well be different were we considering later dates. But that is not before us, and

Negron remains free to apply for disability benefits anew if her condition warrants it.

We have considered Negronʹs 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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