Suttles v. Colvin

15-3803 Suttles 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 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 30th day of June, two thousand sixteen. 5 6 PRESENT: DENNIS JACOBS, 7 GUIDO CALABRESI, 8 REENA RAGGI, 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 DOREEN SUTTLES, 13 Plaintiff-Appellant, 14 15 -v.- 15-3803 16 17 CAROLYN W. COLVIN, 18 Defendant-Appellee. 19 - - - - - - - - - - - - - - - - - - - -X 20 21 FOR APPELLANT: MARK SCHNEIDER, Plattsburgh, New 22 York. 23 24 FOR APPELLEE: HEETANO SHAMSOONDAR, Special 25 Assistant U.S. Attorney (with 26 Stephen P. Conte, Regional Chief 27 Counsel - Region II Office of 28 the General Counsel Social 1 1 Security Administration, on the 2 brief), for Richard S. 3 Hartunian, United States 4 Attorney for the Northern 5 District of New York. 6 7 Appeal from a judgment of the United States District 8 Court for the Northern District of New York (Suddaby, J.). 9 10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 11 AND DECREED that the judgment of the district court be 12 AFFIRMED. 13 14 Plaintiff Doreen Suttles appeals from the district 15 court’s affirmance of a decision of the Commissioner of 16 Social Security (“Commissioner”) denying her application for 17 Social Security disability benefits. We review the 18 administrative record de novo, and will uphold the 19 Commissioner’s decision if it is supported by substantial 20 evidence and the correct legal standards were applied. See 21 Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010); Talavera 22 v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (“Substantial 23 evidence . . . . means such relevant evidence as a 24 reasonable mind might accept as adequate to support a 25 conclusion.” (internal quotation marks omitted)). We assume 26 the parties’ familiarity with the underlying facts, the 27 procedural history, and the issues presented for review. 28 29 1. Suttles contends that the ALJ improperly evaluated 30 the opinions of pulmonologist Dr. Kabeli and consultative 31 examiner Dr. Wassef. Medical opinions are evaluated based 32 on, inter alia, the following factors: (1) the evidence in 33 support of the opinion; (2) the consistency of the opinion 34 with the record as a whole; (3) the specialty of the 35 physician; and (4) any other factors which may support or 36 contradict the opinion. See 20 C.F.R. §§ 404.1527(c), 37 416.927(c). 38 39 Under the Commissioner’s regulations, the ALJ accorded 40 great weight to Dr. Wassef’s opinion because it was 41 consistent with the evidence in the record. As the district 42 court ruled, Dr. Kabeli did not specify any functional 43 limitations, and Dr. Wassef’s opinion was supported by 44 substantial evidence, including Dr. Kabeli’s treatment 45 notes. 46 2 1 2. The plaintiff argues that she is per se disabled 2 under Listing 3.02. To satisfy the requirements for chronic 3 pulmonary insufficiency disorder, a claimant must show an 4 FEV1 equal to or less than 1.45 or an FVC equal to or less 5 than 1.65 for an individual of Suttles’s height (68 inches). 6 See 20. C.F.R. Pt. 404, Subpt. P, App’x 1, § 3.02. The 7 Commissioner’s regulations state that when evaluating a 8 claimant’s impairments under this listing, the “highest 9 values of the FEV1 and FVC, whether from the same or 10 different tracings, should be used to assess the severity of 11 the respiratory impairment.” Id. § 3.00E. Therefore, the 12 ALJ properly relied on the higher pulmonary function test 13 results in determining that Suttles’s impairment did not 14 meet or equal the requirements of Listing 3.02. 15 16 3. Suttles argues that the ALJ erred in evaluating her 17 credibility. Specifically, the ALJ cited her failure to 18 quit smoking despite her doctors’ recommendations. The 19 Commissioner is not obligated to accept without question a 20 claimant’s testimony about her limitations and symptoms, but 21 has discretion to evaluate the claimant’s credibility in 22 light of the evidence in the record. See Genier v. Astrue, 23 606 F.3d 46, 49 (2d Cir. 2010); Westfall v. Colvin, 137 F. 24 Supp. 3d 340, 346 (W.D.N.Y. 2015) (upholding credibility 25 determination where failure to quit smoking was at issue 26 based on other record evidence). 27 28 Although an ALJ may find a plaintiff less credible if 29 she failed to follow medical treatment, an ALJ is obligated 30 to consider any explanation a plaintiff may have for the 31 failure, see Soc. Sec. Ruling 16-3p; Titles II and XVI: 32 Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 33 14,166, 14,170-71 (Mar. 16, 2016), and here the ALJ did not 34 consider any explanation for the failure to quit smoking. 35 See Goff v. Astrue, 993 F. Supp. 2d 114, 128 (N.D.N.Y. 2012) 36 (“[G]iven the addictive nature of smoking, the failure to 37 quit is as likely attributable to factors unrelated to the 38 effect of smoking on a person’s health.” (citation and 39 quotation marks omitted)). 40 41 Despite this error, the ALJ’s decision here was 42 supported by other substantial evidence in the record: the 43 ALJ considered Suttles’s allegations and found that they 44 were not supported by the medical evidence. Additionally, 45 the ALJ found that her description of her daily activities - 46 - which included cooking, some cleaning, helping with 47 laundry, and shopping with her husband -- were inconsistent 3 1 with her level of complaints. As the district court ruled, 2 any error was harmless because substantial evidence 3 supported the ALJ’s overall credibility determination. 4 5 4. The ALJ specifically found that the plaintiff had 6 chronic obstructive pulmonary disease (“COPD”), obesity, 7 major depression, and an anxiety disorder as impairments, 8 but that those impairments did not rise to the level of a 9 disability. Suttles argues that the ALJ failed to consider 10 these conditions together. However, the ALJ considered her 11 impairments in combination, as well as separately. See 12 Rivers v. Astrue, 280 F. App'x 20, 23 (2d Cir. 2008) 13 (rejecting allegations that the ALJ failed to consider 14 impairments in combination where record showed that each 15 ailment and its cumulative effects was considered). 16 17 5. Suttles argues that the Appeals Council erred by not 18 considering a new IQ test and mental evaluation. Under the 19 Commissioner’s regulations, the Appeals Council will 20 consider new and material evidence only if it relates to the 21 relevant period on or before the date of the ALJ’s decision. 22 Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996). Evidence is 23 material if it is relevant to the claimant’s condition 24 during the time period for which benefits were denied, and 25 there is a reasonable possibility that the new evidence 26 would have influenced the ALJ to decide the claimant’s 27 application differently. Jones v. Sullivan, 949 F.2d 57, 60 28 (2d Cir. 1991). 29 30 We have held that “medical evidence generated after an 31 ALJ’s decision [can] not be deemed irrelevant solely because 32 of timing, [as] subsequent evidence of the severity of a 33 condition suggests that the condition may have been more 34 severe in the past than previously thought.” Williams v. 35 Comm’r Soc. Sec., 236 F. App’x 641, 644 (2d Cir. 2007); 36 Pollard v. Halter, 377 F.3d 183, 194 (2d Cir. 2004). It 37 certainly can be argued that Dr. Liotta’s report on 38 Suttles’s IQ and mental capacity, even if based on an 39 evaluation of Suttles that post-dated the ALJ’s decision, 40 provides evidence of Suttles’s condition during the period 41 for which she sought benefits, and that, therefore, it was 42 error for the Appeals Council not to have considered it. 43 Cf. Talavera v. Astrue, 697 F.3d 145, 152 (2d Cir. 2012) 44 (agreeing with “majority of our sister Circuits that it is 45 reasonable to presume, in the absence of evidence indicating 46 otherwise, that claimants will experience a fairly constant 47 IQ throughout their lives” (internal quotation marks and 4 1 alterations omitted)); Muncy v. Apfel, 247 F.3d 728, 734 2 (8th Cir. 2001) (stating that “a person’s IQ is presumed to 3 remain stable over time in the absence of any evidence of a 4 change in claimant’s intellectual functioning” and 5 collecting cases). But, assuming that the Appeals Council 6 erred, there was nevertheless no reasonable possibility that 7 consideration of Dr. Liotta’s report would have altered the 8 ALJ’s decision, because the evidence that Dr. Liotta adduced 9 was not materially different from that which was already 10 before the ALJ and the vocational expert when they reached 11 their conclusions. 12 13 6. Suttles argues that the defendant failed to show at 14 “Step 5” that Suttles could do work. The ALJ did not err in 15 its residual functional capacity analysis, and the 16 vocational expert’s testimony that there are jobs existing 17 in the national economy constitutes substantial evidence 18 supporting the ALJ’s five step determination. See McIntyre 19 v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) 20 21 For the foregoing reasons, and finding no merit in the 22 plaintiff’s other arguments, we hereby AFFIRM the judgment 23 of the district court. 24 25 FOR THE COURT: 26 CATHERINE O’HAGAN WOLFE, CLERK 27 5