17-3097-cv Bushey 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 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 TO 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 June, two thousand eighteen.

Present: RALPH K. WINTER, GUIDO CALABRESI, DEBRA ANN LIVINGSTON, Circuit Judges, _____________________________________

TINA BUSHEY,

Plaintiff-Appellant,

v. 17-3097-cv

NANCY A. BERRYHILL, Acting Commissioner of Social Security,

Defendant-Appellee. _____________________________________

For Plaintiff-Appellant: MARK SCHNEIDER, Plattsburgh, NY.

For Defendant-Appellant: HASEEB FATMI, Special Assistant United States Attorney (Stephen P. Conte, Regional Chief Counsel— Region II, Office of the General Counsel, Social Security Administration, on the brief), for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY.

1 Appeal from a September 27, 2017 judgment of the United States District Court for the

Northern District of New York (Suddaby, C.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Tina Bushey (“Bushey”) appeals from a judgment of the United States

District Court for the Northern District of New York, affirming the Acting Commissioner of Social

Security’s 2015 denial of her application for disability benefits. The Commissioner had previously

denied Bushey’s earlier application for disability benefits in 2010, a decision affirmed by both the

district court and this Court, see Bushey v. Colvin, 552 Fed. App’x 97 (2d Cir. 2014) (“Bushey I”),

and the Commissioner had also previously denied Bushey’s additional application for disability

benefits in 2013, a decision again affirmed by both the district court and this Court, see Bushey v.

Colvin, 607 Fed. App’x 114 (2d Cir. 2015) (“Bushey II”). Bushey challenges the Commissioner’s

instant denial, which, inter alia, involved a determination that she was not disabled from April 19,

2012 through March 3, 2015. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

A. Overview

A claimant seeking benefits under

or 42 U.S.C. § 1381a “bears the ultimate

burden of proving that [she] was disabled throughout the period for which benefits are sought.”

Greek v. Colvin,

(2d Cir. 2015) (per curiam).

The Commissioner has established a five-step sequential evaluation for adjudication of disability claims, set forth at

. First, the Commissioner must determine whether the claimant is currently engaging in substantial gainful activity.

§ 404.1520(b). If so, the claimant is not disabled. Second, if the claimant is not working, the Commissioner must determine whether the claimant has a “severe” impairment, i.e., an impairment that limits [her] ability to do physical or mental work-related

2 activities. Id. §§ 404.1520(c), 404.1521. If not, the claimant is not disabled. Third, if there is a severe impairment, the Commissioner determines if the impairment meets or equals the criteria of a per se disabling impairment contained in Appendix 1 to 20 C.F.R. Part 404, Subpart P (Listings of Impairment).

(d), 404.1525, 404.1526. If the claimant’s impairment does not meet or equal a listed impairment, before proceeding to step four, the Commissioner determines, based on all the relevant medical and other evidence of record, the claimant’s “residual functional capacity,” which is what the claimant can still do despite the limitations imposed by his impairment.

§§ 404.1520(a)(4), (e), 404.1545(a). Fourth, the Commissioner considers whether the claimant’s residual functional capacity permits [her] to return to his past relevant work. Id. §§ 404.1520(e), (f), 404.1560(b). If so, the claimant is not disabled. Fifth, if the claimant cannot return to [her] past work, the Commissioner considers, based on the claimant’s residual functional capacity and vocational factors, whether the claimant can do other work existing in significant numbers in the national economy. Id. §§ 404.1520(g), 404.1560(b). If so, the claimant is not disabled.

Id. at 374 n.2

“When we review the Commissioner’s denial of Social Security benefits, ‘our focus is not

so much on the district court’s ruling as it is on the administrative ruling.’” Brault v. Soc. Sec.

Admin., Com’r,

(2d Cir. 2012) (per curiam) (quoting Schaal v. Apfel,

, 500–01 (2d Cir. 1998)). “[W]e do not,” however, “substitute our judgment for the agency’s.”

Cage v. Comm’r of Soc. Sec.,

(2d Cir. 2012). We may reverse an ALJ’s finding

that a claimant is not disabled only if the ALJ applied the incorrect legal standards, or if after

“conduct[ing] a plenary review of the administrative record,” we conclude that, “considering the

record as a whole,” the ALJ’s decision is not supported by “substantial evidence.” Brault,

(quoting Moran v. Astrue,

(2d Cir. 2009)). “Substantial evidence is ‘more

than a mere scintilla.’”

(quoting Moran,

). “But it is still a very deferential

standard of review—even more so than the ‘clearly erroneous’ standard.” Id. at 448. “The

substantial evidence standard means once an ALJ finds facts, we can reject those facts ‘only if a

3 reasonable factfinder would have to conclude otherwise.” Id. (emphasis in original) (quoting

Warren v. Shalala,

(8th Cir. 1994)). We also “defer to the Commissioner’s

resolution of conflicting evidence.” Cage,

.

B. Issue Preclusion

We begin by noting that Bushey is precluded from re-litigating the question of whether she

was disabled on or before April 18, 2012. Issue preclusion “bars successive litigation of an issue

of fact or law actually litigated and resolved in a valid court determination essential to the prior

judgment, even if the issue recurs in the context of a different claim.” Marcel Fashions Grp., Inc.

v. Lucky Brand Dungarees, Inc.,

(2d Cir. 2015) (quoting Taylor v. Sturgell,

(2008)); see also B & B Hardware, Inc. v. Hargis Indus., Inc.,

(2015) (noting that issue preclusion applies when an agency resolves a disputed matter that the

parties had a full and fair opportunity to litigate, and that same matter later comes before a court).

We apply issue preclusion in a situation where “(1) the identical issue was raised in a previous

proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the

party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was

necessary to support a valid and final judgment on the merits.” Proctor v. LeClaire,

(2d Cir. 2013) (quoting Ball v. A.O. Smith Corp.,

(2d Cir. 2006)). Here,

Bushey had a full and fair opportunity to establish her disability from before April 18, 2012, and—

as noted above—the matter was actually litigated and decided by both the district court and our

Court, see Bushey II, 607 Fed. App’x at 115–16 . She is therefore precluded from re-litigating the

matter. See Marcel Fashions,

.

Thus, to claim benefits now, Bushey must submit evidence, which she did not submit

during her earlier adjudications, that she was disabled as of April 19, 2012. See

To that end, we

4 note that the vast majority of arguments that Bushey makes in her brief on appeal are, verbatim,

arguments that she made in her previous appeal to this Court—citing the same case law and the

same pre-April 18, 2012 evidence. We reject those arguments based solely on previously submitted

evidence for the same reasons as we did in Bushey II. We therefore address only (what we discern

as) Bushey’s new arguments.

C. Listing 12.05(C)

First, Bushey notes that on November 21, 2014, Dr. Richard Liotta (“Liotta”) determined

that Bushey’s full-scale IQ was 66. Bushey therefore argues that she is per se disabled under (then-

existing) Listing 12.05(C), and the ALJ thus erred in her Step Three determination. We reject

Bushey’s argument.

Under the version of Listing 12.05 in effect at the time of Bushey’s application, a person

is per se disabled if she exhibits “significantly subaverage general intellectual functioning with

deficits in adaptive functioning initially manifested during the developmental period; i.e., the

evidence demonstrates or supports onset of the impairment before age 22.” See Talavera v. Astrue,

(2d Cir. 2012). The Listing also stated that “[t]he required level of severity for

this disorder is met when” the applicant has “[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.”

. An applicant’s burden to establish per se disability under

this Listing is twofold. See

at 152–53 & n.4. First, the applicant must establish the requirements

of Subsection C itself—i.e., “[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.” See

. Second, the applicant must carry “her separate burden of

establishing that she suffers from qualifying deficits in adaptive functioning,” and that those

5 deficits “initially manifested . . . before age 22.”

at 152 n.4, 153 (emphasis added). “Adaptive

functioning refers to an individual’s ‘ability to cope with the challenges of ordinary everyday

life.’”

(internal brackets omitted) (quoting Novy v. Astrue,

(7th Cir.

2007)). Thus, “‘persons with an IQ in the 60s (or even lower) may still be able to hold a full-time

job,’ and are therefore not disabled, if their adaptive functioning is sufficiently intact.”

(quoting

Novy,

).

Here, Bushey argues that she was per se disabled under Listing 12.05(C) because Liotta

determined that she possessed a full-scale IQ of 66 and the record suggests that she possessed “a

physical or other mental impairment imposing an additional and significant work-related limitation

of function” during the relevant period. Although the ALJ determined that Bushey failed to qualify

as per se disabled under 20 C.F.R. Pt. 404, Subpt. P, App. 1, the ALJ did not state on the record

that Bushey specifically failed to qualify as per se disabled under Listing 12.05(C). However, “[a]n

ALJ does not have to state on the record every reason justifying a decision,” Brault,

, and “[w]here application of the correct legal principles to the record could lead [only to the

same] conclusion, there is no need to require agency reconsideration.” Zabala v. Astrue,

(2d Cir. 2010) (quoting Johnson v. Bowen,

(2d Cir. 1987)). Here, even

assuming arguendo that Bushey has carried her burden of establishing “[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,” the record does not support a

finding that she suffered from “qualifying deficits in adaptive functioning” during the relevant

period. See Talavera, 697 F.3d at 152–53 & n.4. Dr. Alan Dubro concluded in an April 9, 2010

assessment, for example, that his results were “not consistent with any psychiatric or learning

problems[] which significantly interfere with [Bushey’s] ability to function on a daily basis,” and

6 Bushey could therefore “regularly attend[] to a routine and maintain[] a schedule.” R. at 404–05

(emphasis added). Similarly, Dr. Brett Hartman (“Hartman”) noted in a September 26, 2013

evaluation that Bushey reported being “able to dress, bathe, and groom herself,” and manage her

own money. R. at 376. Bushey also informed her treating psychologist in 2013 “that on a typical

day, she takes care of her two children and, in addition, every other weekend she cares for two

stepchildren.” R. at 20, 388. Bushey’s “cognitive faculties,” in other words, “had been examined

by a number of medical professionals prior to Dr. [Liotta]’s administration of the IQ test, and none

reported that she suffered from mental impairments that would materially limit her ability to cope

with the challenges of ordinary life.” Talavera, 697 F.3d at 153–54. Remand on this matter would

therefore be futile, and we thus reject Bushey’s argument concerning Listing 12.05(C). See Zabala,

.

D. The ALJ’s Assessment of the Medical Evidence

Bushey also argues that the ALJ erred in providing more weight to Hartman’s September

26, 2013 psychiatric evaluation than Liotta’s November 21, 2014 assessment and Dr. Nader

Wassef (Wassef)’s September 26, 2013 assessment. We disagree. An ALJ may diminish the

weight that she provides to a medical opinion if that opinion is “inconsistent with . . . other

substantial evidence in [the] case record.’” Poupore v. Astrue,

(2d Cir. 2009)

(quoting

(d)(2)). Here, the ALJ provided only some weight to Wassef’s

assessment, given that, among other things, Bushey reported to Wassef that she uses a cane and

walks with a slight limp, even though “examinations by [Bushey’s] pain management specialist

and primary care providers [did] not report gait disturbance and balance problems and [did] not

mention that she requires a cane for balance and walking.” R. 18–19. The ALJ also provided

minimal weight to Liotta’s assessment, given that Liotta’s conclusion that Bushey had “low

7 intellectual functioning” was belied by the fact that Bushey has no apparent difficulty following a

complicated medication regime, and that she had previously worked as a cashier. R. 19. Finally,

the ALJ gave “great weight” to Hartman’s opinion, because Hartman’s assessment that Bushey “is

able to follow and understand simple directions and perform simple tasks” is consistent with the

other record evidence. R. 19–20. We therefore see no error in the ALJ’s decision to accord

Hartman’s assessment more weight than Liotta’s or Wassef’s. See Poupore,

.

E. Bushey’s Credibility

Next, Bushey argues that the ALJ erred in discounting Bushey’s subjective pain symptoms,

in violation of

and 416.929. However, an ALJ “is not required to accept

the claimant’s subjective complaints without question; he may exercise discretion in weighing the

credibility of the claimant’s testimony in light of the other evidence in the record.” Genier v.

Astrue,

(2d Cir. 2010). Here, “substantial evidence” supported the ALJ’s

determination that Bushey’s “testimony about [her] limitations was not fully credible.” Poupore,

. For example, although Bushey told the ALJ that she could not follow a story on

television, R. at 45, she told both Wassef and Hartman that watching television was one of her

hobbies, see R. at 376, 381. In addition, as the ALJ noted, Bushey’s allegations concerning severe

pain and severe functional loss were contradicted by her primary care physician’s extensive notes

and recorded findings to the contrary. Finally, although Bushey told the ALJ that she could sit for

no longer than “10 [or] 15” minutes at a time, R. at 45, just a short time later, Bushey indicated

that although she had been sitting for half-an hour, she did not need a break. R. 50. Substantial

evidence therefore supported the ALJ’s decision to discount Bushey’s subjective pain symptoms.

See Poupore,

.

8 F. The ALJ’s Step Five Determination

Finally, Bushey argues that the ALJ erred at Step Five in determining that Bushey could

work as—among other things—a document preparer, with approximately 44,854 jobs nationally.

Bushey insists that the ALJ erred because the vocational expert that the ALJ consulted admitted

that “a person who could not use their dominant right hand to manipulate objects could not be a

document preparer,” and that “a person who is off-task over 15 percent of the time cannot perform

any work,” Br. for Plaintiff-Appellant at 51–52. Bushey cites no evidence, however, to bolster her

(implicit) assertion that she falls into either of these categories. The only indication in the record

we could find to support Bushey’s conclusion that she is “off-task over 15 percent of the time” is

her attorney’s conclusory assertion in a December 17, 2014 letter. See R. at 312. And the record

strongly suggests that Bushey is indeed able to use her dominant right hand to manipulate objects.

See, e.g., R. 44 (Bushey’s testimony that she has “normal use of [her] hands,” and that she lifts

milk and boxes of cereal to feed her children on a daily basis); R. 701–02 (assessment that

Bushey’s “muscle bulk” and “tone” were normal, and “[p]ower is 5/5 in all muscle groups,

including . . . intrinsic muscles of the hand” (emphasis added)). We therefore reject Bushey’s

challenge to the ALJ’s Step Five determination.

* * *

We have considered Bushey’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

9