15‐1845‐cv
Botta v. Colvin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
CORRECTED 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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 21st day of October, two thousand sixteen.
4
5 PRESENT: PIERRE N. LEVAL,
6 RAYMOND J. LOHIER, JR.,
7 Circuit Judges,
8 EDWARD R. KORMAN,
9 District Judge.*
10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11 GIULIA BOTTA,
12
13 Plaintiff‐Appellant,
14
15 v. No. 15‐1845‐cv
16
17 CAROLYN W. COLVIN,
18 COMMISSIONER OF SOCIAL SECURITY,
19
20 Defendant‐Appellee.**
21 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
* Judge Edward R. Korman, of the United States District Court for the Eastern District of New York,
sitting by designation.
** The Clerk of the Court is directed to amend the official caption to conform to the caption above.
1
1 FOR APPELLANT: SARAH H. BOHR, Bohr & Harrington,
2 LLC, Atlantic Beach, FL; Jeffrey
3 Delott, Law Offices of Jeffrey Delott,
4 Jericho, NY.
5
6 FOR APPELLEE: DARA A. OLDS (Varuni Nelson,
7 Arthur Swerdloff, on the brief),
8 Assistant United States Attorneys, for
9 Robert L. Capers, United States
10 Attorney, Eastern District of New
11 York, Brooklyn, NY.
12
13 Appeal from a judgment of the United States District Court for the Eastern
14 District of New York (Sandra J. Feuerstein, Judge).
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
16 AND DECREED that the judgment of the District Court is AFFIRMED.
17 Giulia Botta appeals from a judgment of the United States District Court for
18 the Eastern District of New York (Feuerstein, J.), which dismissed her complaint
19 seeking disability insurance benefits under the Social Security Act and granted
20 judgment on the pleadings to the Commissioner of Social Security. We note at
21 the outset that, in lieu of pursuing her case in district court, Botta could have
22 obtained re‐adjudication of her claim by a different Administrative Law Judge
23 (“ALJ”) pursuant to the settlement in Padro v. Astrue, No. 11 Civ. 1788, 2013 WL
24 5719076 (E.D.N.Y. Oct. 18, 2013) (Amon, J.)—a class action complaining of
2
1 systematic bias by ALJs in the Queens office of the Social Security Administration
2 (including the ALJ who entered the decision from which Botta appeals). Under
3 the settlement’s terms, Botta had to request this relief within sixty days after
4 receiving notice of her right to it. Her prior attorney, however, made no such
5 request; and although her current counsel indicated at oral argument that she has
6 since asked the Commissioner for a new hearing, the request was rejected.
7 Under these circumstances, we turn to the merits of her appeal.
8 On appeal, Botta argues that the ALJ who adjudicated her benefits claim
9 did not properly credit Botta’s subjective complaints and did not accord sufficient
10 weight to the opinion of one of Botta’s treating physicians. We assume the
11 parties’ familiarity with the facts and record of the prior proceedings, to which we
12 refer only as necessary to explain our decision to affirm.
13 Botta’s contention that the ALJ did not properly evaluate her subjective
14 complaints is without merit. While partially crediting Botta’s complaints of
15 pain, the ALJ did not fully credit Botta’s statements “concerning the intensity,
16 persistence and limiting effects” of her symptoms because (1) it was undisputed
17 that objective medical tests did not display compression of the nerve roots, (2)
18 multiple examining doctors did not observe significant atrophy or weakness, and
3
1 (3) the record contained testimony from a medical expert that Botta’s complaints
2 were inconsistent with objective findings as well as testimony from Botta herself
3 that she was not receiving medical treatment for her symptoms in October 2003.
4 The ALJ set forth enough “specific reasons” supported by substantial evidence to
5 garner deference. See Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013).
6 We also reject Botta’s argument that the ALJ did not give sufficient weight
7 to the opinion of one of her treating physicians, Dr. Robert Duca. See Shaw v.
8 Chater, 221 F.3d 126, 134 (2d Cir. 2000). As the ALJ found, examinations by two
9 other physicians, objective medical tests, and Botta’s history of conservative
10 treatment were all inconsistent with Dr. Duca’s opinion. And the ALJ properly
11 relied on testimony from two medical experts who reviewed Dr. Duca’s records
12 and independently concluded that the records lacked the specificity and findings
13 necessary to support his opinion. Weighing this body of contrary evidence
14 against the length of Dr. Duca’s treating relationship and his status as an
15 orthopedist, the ALJ “applied the substance of the treating physician rule” and
16 provided “good reasons” for her decision not to give Dr. Duca’s opinion
17 controlling or significant weight. Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d
18 Cir. 2004).
4
1 We have considered the remaining arguments and conclude that they are
2 without merit. For the foregoing reasons, the judgment of the District Court is
3 AFFIRMED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk of Court
6
5
Botta v. Colvin
Combined Opinion