Bavaro v. Astrue

10-1841-cv
Bavaro v. Astrue

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.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 14th day of March, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 REENA RAGGI,
10 Circuit Judges.
11
12
13 - - - - - - - - - - - - - - - - - - - -X
14 BARBARA BAVARO,
15
16 Plaintiff-Appellant,
17
18 -v.- 10-1841-cv
19
20 MICHAEL J. ASTRUE, Commissioner of
21 Social Security,
22
23 Defendant-Appellee.
24
25 - - - - - - - - - - - - - - - - - - - -X
26
27 FOR APPELLANT: DAVID J. SEEGER, Buffalo, NY.
28

1
 1 FOR APPELLEE: ANDREEA LECHLEITNER, Special Assistant
2 United States Attorney (Stephen P. Conte,
3 Regional Chief Counsel, Social Security
4 Administration, of counsel), for William
5 J. Hochul, Jr., United States Attorney
6 for the Western District of New York,
7 Buffalo, NY.
8
9 Appeal from a judgment of the United States District
10 Court for the Western District of New York (Telesca, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the District Court be
14 AFFIRMED.
15
16 Plaintiff-Appellant Barbara Bavaro appeals from the
17 judgment on the pleadings entered by the United States
18 District Court for the Western District of New York
19 (Telesca, J.), affirming the Commissioner’s denial of her
20 claim for Social Security disability benefits. We assume
21 the parties’ familiarity with the underlying facts, the
22 procedural history, and the issues presented for review.
23
24 [1] Bavaro argues that the ten-pound lifting restriction
25 recommended by her treating physician, Dr. Geraci, should
26 have been controlling for the ALJ’s disability
27 determination.
28
29 “An ALJ who refuses to accord controlling weight to the
30 medical opinion of a treating physician must consider
31 various ‘factors’ to determine how much weight to give to
32 the opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d
33 Cir. 2004) (per curiam); see 20 C.F.R. § 404.1527(d)(2).
34 The ALJ must also “give good reasons in [the] notice of
35 determination or decision for the weight” accorded to the
36 treating physician’s opinion. Id.
37
38 As to Dr. Geraci’s opinion, the ALJ failed to
39 demonstrate consideration of the necessary factors and to
40 provide good reasons for discounting it. We can
41 nevertheless evaluate the treating physician’s opinion
42 ourselves through a searching review of the record. See
43 Halloran, 362 F.3d at 31-32. “While the opinions of a
44 treating physician deserve special respect, they need not be
45 given controlling weight where they are contradicted by
46 other substantial evidence in the record.” Veino v.

2
 1 Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (internal
2 citations omitted).
3
4 First, Dr. Geraci did not treat Bavaro during the most
5 relevant period. The amended onset date is April 2006, when
6 she was laid off; Dr. Geraci last saw her in 2005.
7
8 Second, Dr. Geraci’s assessment was contradicted by
9 functional assessments by: [a] Marzullo, Bavaro’s treating
10 physical therapist, who found that Bavaro’s “safe work
11 capacity” included level lifting and floor lifting eighteen
12 pounds; [b] Dr. Dina, who concluded that Bavaro had no
13 functional limitations; [c] De Freitas, who determined that
14 Bavaro could occasionally lift 20 pounds and frequently lift
15 ten pounds; [d] Dr. Cox, who from the beginning thought that
16 Bavaro had a good prognosis, and later noted that she
17 responded favorably to therapy; and [e] Higgins, who
18 concluded in two assessments years apart that Bavaro could
19 occasionally lift 20 to 25 pounds and frequently lift ten
20 pounds.
21
22 In any event, the restrictions themselves are of
23 questionable value. They were imposed nearly three-and-a-
24 half years prior to the alleged disability onset date,
25 without explanation regarding their particulars, and Bavaro
26 worked in the interval. Moreover, their source is
27 correspondence from Dr. Geraci to Bavaro’s employer, rather
28 than treatment notes or medical records.
29
30 Remand for agency reconsideration is unnecessary where,
31 as here, “application of the correct legal principles to the
32 record could lead [only to the same] conclusion.” Zabala v.
33 Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (brackets in
34 original).
35
36 [2] The ALJ found that Bavaro was capable of performing
37 several jobs. Bavaro challenges each as unsuitable; the
38 Commissioner defends only the positions of photo counter
39 clerk and small products assembler. The Commissioner has
40 the burden in step five of the disability determination to
41 prove that the claimant is capable of working. Perez v.
42 Chater, 77 F.3d 41, 46 (2d Cir. 1996). The Commissioner
43 need show only one job existing in the national economy that
44 Bavaro can perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R.
45 § 404.1566(b).
46 At a minimum, substantial evidence supports the ALJ’s
47 finding that Bavaro can perform the photo counter clerk

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 1 position. We decline Bavaro’s invitation to take judicial
2 notice of the decline of the photofinishing industry and
3 deem the position infeasible for her. A vocational expert
4 testified to the existence of such jobs at the national and
5 regional level. The ALJ was entitled to credit that
6 testimony, see 20 C.F.R. § 404.1566(e), and we will not
7 disturb that finding based upon Bavaro’s conclusory
8 proclamations to the contrary.
9
10 Bavaro also challenges the transferability of her
11 experience as a paint store clerk to the photo counter clerk
12 position, based upon the numbering scheme of the Department
13 of Labor’s “Dictionary of Occupational Titles” (DOT)
14 listings. The argument ignores the critical metric for each
15 job: the skill level. Because the DOT lists the photo
16 counter clerk position as unskilled, see Social Security
17 Ruling 00-4p, 2000 SSR LEXIS 8; Certified Administrative
18 Record at 201, it is viable for Ms. Bavaro whether or not
19 any of her skills from her paint store position are
20 transferable. See Social Security Ruling 82-41, 1982 SSR
21 LEXIS 34 (“[A] finding of ‘not disabled’ may be based on the
22 ability to do unskilled work.”).
23
24 [3] Bavaro claims that a disability finding is warranted
25 under the Medical-Vocational Guidelines (“the Grids”). See
26 20 C.F.R. pt. 404, subpt. P, app. 2. The argument rests on
27 her “treating physician” argument, because it hinges upon
28 Dr. Geraci’s ten-pound lifting restriction controlling the
29 analysis (which would trigger application of the sedentary
30 work Grid, see 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.01
31 et seq.). As discussed, Dr. Geraci’s opinion is not
32 entitled to controlling weight; therefore, this argument is
33 without merit.
34
35 We have considered Bavaro’s remaining arguments on this
36 appeal and have found them to be without merit. For the
37 foregoing reasons, the judgment of the District Court is
38 hereby AFFIRMED.
39
40 FOR THE COURT:
41 CATHERINE O’HAGAN WOLFE, CLERK
42

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