18‐1790‐cv
Suttles 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 ASUMMARY ORDER@). 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 28th day of February, two thousand
nineteen.
PRESENT: AMALYA L. KEARSE
DENNIS JACOBS,
PETER W. HALL,
Circuit Judges.
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DOREEN SUTTLES,
Plaintiff‐Appellant,
‐v.‐ 18‐1790
NANCY A. BERRYHILL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant‐Appellee.
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FOR PLAINTIFF‐APPELLANT: Mark Schneider, Schneider & Palcsik,
Plattsburgh, NY.
FOR DEFENDANT‐APPELLEE: Peter W. Jewett, Special Assistant United
States Attorney (Grant C. Jaquith, United
States Attorney, Northern District of New
York, Stephen P. Conte, Regional Chief
Counsel Region II, Office of the General
Counsel, Social Security Administration, on
the brief), New York, NY.
Appeal from a 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 be
AFFIRMED.
Doreen Suttles appeals from the judgment of the United States District
Court for the Northern District of New York (Suddaby, C.J.), affirming the Social
Security Administration’s denial of her application for supplemental security
income. We review the administrative record de novo, and will uphold the
decision if it is supported by substantial evidence and the correct legal standards
were applied. Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010); Talavera v.
Astrue, 697 F.3d 145, 151 (2d Cir. 2012). Suttles raises five issues on appeal.
We assume the parties’ familiarity with the underlying facts and procedural
history.
1. Suttles argues that the ALJ gave insufficient weight to certain findings
and opinions of Dr. Kabeli, Nurse Practitioner Hausrath, and Dr. Liotta, all of
whom treated her. Medical opinions are evaluated based on (1) the frequency,
length, nature, and extent of treatment; (2) the evidence in support of the
opinion; (3) the consistency of the opinion with the record; (4) the specialty of the
physician; and (5) any other factors which may support or contradict the opinion.
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Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015); 20 C.F.R. §§ 404.1527(c),
416.927(c).
The ALJ’s assessments of Suttles’s treaters were supported by substantial
evidence. Dr. Kabeli’s treatment and opinions were given significant weight,
including Dr. Kabeli’s observations that Suttles reported walking on a regular
basis and did not describe significant shortness of breath with activity. The ALJ
accorded little weight to Nurse Practitioner Haustrath’s opinions because she
was not an acceptable medical source and her opinions were inconsistent with
Suttles’s medical records. Dr. Liotta’s opinion was not mentioned by the ALJ,
but (as the district court ruled) any such error would be harmless because, until
her appeal, Suttles did not allege an intellectual impairment affecting her ability
to work. Dr. Liotta’s report was not materially different from the evidence
expressly considered by the ALJ and the vocational expert when they reached
their conclusions.
2. Suttles claims she is per se disabled under Listing 3.02: chronic
respiratory disorders. However, her symptoms are inconsistent with the
severity of restrictions contemplated by Listing 3.02.
To establish chronic respiratory disorders under Listing 3.02, a claimant
must show an FEV1 equal to or less than 1.45 or an FVC equal to or less than 1.65
for an individual of Suttles’s height (68 inches). 20 C.F.R. Pt. 404, Subpt. P,
App’x 1, § 3.02. The regulations instruct that the highest values of the FEV1 and
FVC, whether from the same or different tracings, should be used to assess the
severity of the respiratory impairment. Id. § 3.00E. Suttles concedes that her
highest results (an FEV1 of 1.93 and an FVC of 3.29) were above the level
required to meet Listing 3.02, but she argues that her symptoms are medically
equivalent to the severity of the listing criteria. Given that the criteria for
Listing 3.02 consist entirely of numerical test values, which Suttles failed to
achieve, and that the ALJ pointed to treatment notes showing that Suttles’
condition improved during the relevant period, the ALJ’s determination that
Suttles did not meet or equal the listing is supported by substantial evidence.
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3. Suttles argues that the ALJ erred in finding incredible portions of her
testimony. The ALJ has discretion, if supported by substantial evidence in the
record, to evaluate the claimant’s credibility and discount subjective complaints
of pain. See Aponte v. Sec’y, Dep’t of Health & Human Servs., 728 F.2d 588, 591
(2d Cir. 1984); Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).
Suttles’s testimony regarding her symptoms was contradicted by the
medical evidence. The ALJ’s conclusion was supported by substantial
evidence: specific references to clinical findings, diagnostic tests, and treatment
reports from Suttles’s doctors.
4. Suttles argues that the ALJ failed to consider Suttles’s various conditions
in combination. The ALJ found that Suttles has the following impairments:
asthma, carpal tunnel syndrome, chronic obstructive pulmonary disease,
gastroesophageal reflux disease, obesity, neuropathy, and Raynaud’s syndrome.
And the ALJ relied on multiple physicians who each assessed Suttles’s
limitations as a whole; the ALJ considered Suttles’s impairments both separately
and together.
5. Suttles argues that the ALJ erred in concluding that she could perform
work available in the national economy. However, the vocational expert’s
testimony in response to hypothetical questions is substantial evidence
supporting the ALJ’s determination. See McIntyre v. Colvin, 758 F.3d 146, 151
(2d Cir. 2014).
We have considered Suttles’s remaining arguments and find them to be
without merit. For the foregoing reasons, we AFFIRM the judgment of the
district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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