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.
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ELIZABETH ANN BURNETTE,
Plaintiff‐Appellant,
‐v.‐ 13‐2660‐cv
CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant‐Appellee. *
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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, 42 U.S.C. § 1381 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
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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, 683 F.3d 443, 447 (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
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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, 537 F.3d 117,
128 (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 Id. at 127 (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, 697 F.3d 145, 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, 697 F.3d at 152. 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
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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 Id. at 153 (alterations omitted) (quoting Novy v. Astrue, 497 F.3d
708, 710 (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
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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, 700 F. Supp. 2d 242, 248 (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, 489 F.3d 1080,
1087 (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, 48 F. Supp. 2d 250, 257 (W.D.N.Y. 1999); see also
Markle v. Barnhart, 324 F.3d 182, 186 (3d Cir. 2003); Clark v. Apfel, 141 F.3d 1253, 1255
(8th Cir. 1998); Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991); Lowery v. Sullivan,
979 F.2d 835, 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.
20 C.F.R. § 416.967(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
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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, 335 F.3d 99, 106 (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 20 C.F.R. § 404.1527(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, 606 F.3d
46, 49 (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
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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, 712 F.2d 1545, 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
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