Bennett v. Comm'r of Soc. SEC. ( 2023 )

22-281
Bennett v. Comm’r of Soc. Sec.
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 TO 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 23rd day of January, two thousand twenty-three.
PRESENT:
RICHARD J. SULLIVAN,
ALISON J. NATHAN,
SARAH A. L. MERRIAM,
Circuit Judges.
_______________________________________
MARIE F. BENNETT,
Plaintiff-Appellant,
v. No. 22-281
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
_______________________________________
For Plaintiff-Appellant: PATRICK G. RADEL, Getnick Livingston
Atkinson & Priore, LLP, Utica, NY.
For Defendant-Appellee: MOLLY E. CARTER, Special Assistant
United States Attorney (Michael J.
Pelgro, Regional Chief Counsel –
Region I, Office of the General Counsel,
Social Security Administration, Boston,
MA, on the brief), for Carla B. Freedman,
United States Attorney for the Northern
District of New York, Syracuse, NY.
Appeal from a judgment of the United States District Court for the Northern
District of New York (Christian F. Hummel, Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Marie F. Bennett appeals from the district court’s judgment upholding the
denial of her application for disability insurance benefits under the Social Security
Act (the “Act”), 42 U.S.C. § 301 et seq. On behalf of the Commissioner of Social
Security (the “Commissioner”), an administrative law judge (the “ALJ”) found
that Bennett was not disabled under sections 216(i) and 223(d) of the Act. The
Appeals Council of the Social Security Administration (the “Appeals Council”)
affirmed the ALJ’s determination and adopted his findings and conclusions in
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their entirety. Thereafter, Bennett commenced this action in the district court to
seek judicial review of that decision. The district court concluded that the
Commissioner applied the correct legal standards and that substantial evidence
supported her findings. Bennett timely appealed. We assume the parties’
familiarity with the underlying facts, procedural history, and issues on appeal.
When the district court upholds the Commissioner’s benefits determination,
we review de novo the administrative record to determine “whether the
Commissioner applied the correct legal standard” and “whether there is
substantial evidence supporting the Commissioner’s decision.” Zabala v. Astrue,
595 F.3d 402, 408 (2d Cir. 2010) (internal quotation marks omitted). “The
substantial[-]evidence standard means [that] once an ALJ finds facts, we can reject
those facts only if a reasonable factfinder would have to conclude otherwise.”
Schillo v. Kijakazi, 31 F.4th 64, 74 (2d Cir. 2022) (emphasis omitted) (internal
quotation marks omitted).
On appeal, Bennett argues that the Commissioner erroneously determined
her residual functional capacity (“RFC”) by failing to adequately consider her
alleged difficulties turning her head and neck and by improperly discounting the
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opinion of her treating physician. We address each of these two arguments in
turn.
First, the Commissioner adequately addressed Bennett’s allegations that she
had difficulties moving her head and neck, finding that her “statements
concerning . . . [her] symptoms [were] not entirely consistent with the medical
evidence and other evidence in the record.” Certified Admin. Record at 88–89.
In support of this assessment, the Commissioner cited an MRI result showing only
“mild multilevel degenerative disc disease,” id. at 89; treatment notes indicating
that Bennett’s neck “pain and stiffness [had] improved . . . with therapy,” id. at 90;
Bennett’s representation that she was “able to drive and perform simple
household tasks,” id., such as “do[ing] laundry,” sweep[ing],” and “mop[ping],”
id. at 88; as well as the fact that Bennett’s treatment “ha[d] been generally routine
and/or conservative,” id. at 90. Notwithstanding these findings, Bennett contends
that the Commissioner improperly rejected her assertions without adequately
considering the opinions of Dr. Elke Lorensen, the Commissioner’s consultative
expert, and Ms. Mary Barbara, the physician’s assistant who treated Bennett. We
disagree.
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The Appeals Council acknowledged that the ALJ did not consider
Dr. Lorensen’s report because it was “erroneously marked as
duplicative evidence.” Id. at 5. Nevertheless, the Appeals Council found that
Dr. Lorensen’s findings supported the ALJ’s decision, since they confirmed that
Bennett was able to do a wide range of daily activities, showed full cervical flexion
and extension, and indicated that she had only mild limitations in turning her head
sideways. See id.; see also id. at 602; 20 C.F.R. § 404.979 (“After it has reviewed all
the evidence in the [ALJ’s] hearing record and any additional evidence
received, . . . the Appeals Council will make a decision or remand the case to an
[ALJ],” and “[i]f the Appeals Council issues its own decision, it will base its
decision on the preponderance of the evidence.”). As to Ms. Barbara – the
physician’s assistant who treated Bennett – the ALJ assigned “little weight” to her
opinions because “the objective medical evidence . . . d[id] not support them.”
Certified Admin. Record at 90–91. For instance, the ALJ noted that Ms. Barbara’s
opinion that Bennett could “rarely turn her head” was contradicted by Bennett’s
report of “going to a water safari where she road some rides,” as well as by
Ms. Barbara’s own treatment note suggesting that Bennett “ha[d] [a] full range of
motion.” Id. at 91 (citing id. at 442). On this record, a “reasonable factfinder”
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could agree with the Commissioner’s RFC determination concerning Bennett’s
ability to move her head and neck. Schillo, 31 F.4th at 74.
Second, the Commissioner properly discounted the opinion of Bennett’s
treating physician, Dr. Adekola Alao. When “determining the appropriate
weight to assign a treating physician’s opinion,” the ALJ first “must decide
whether the opinion is entitled to controlling weight.” Estrella v. Berryhill, 925
F.3d 90, 95 (2d Cir. 2019). A treating physician’s opinion will be assigned
controlling weight “so long as it is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the case record.” Id. (alteration and internal quotation
marks omitted). If the ALJ determines that the opinion is not entitled to
controlling weight, then the ALJ “must determine how much weight, if any, to
give it,” after considering the following “nonexclusive” factors: “(1) the
frequency, length, nature, and extent of treatment; (2) the amount of medical
evidence supporting the opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the physician is a specialist.” Id.6
at 95–96 (alteration and internal quotation marks omitted). 1 “If the Commissioner
has not otherwise provided good reasons for [her] weight assignment, we
[may] . . . remand for the ALJ to comprehensively set forth [his or her] reasons.”
Id. at 96 (alterations added) (internal quotation marks omitted). But if “a
searching review of the record assures us that the substance of the
treating[-]physician rule was not traversed, we will affirm.” Id. (internal
quotation marks omitted); see also Schillo, 31 F.4th at 75 (explaining that a treating
physician’s opinion will not be given controlling weight if it is not “well supported
by medically acceptable . . . diagnostic techniques” or is “inconsistent with (or
contradicted by) other substantial evidence in the . . . case record”).
Here, the Commissioner acknowledged that Dr. Alao’s opinion constituted
“a treating acceptable medical source,” but provided good reasons for giving
Dr. Alao’s opinion “limited weight.” Certified Admin. Record at 91.
Specifically, the Commissioner pointed out that Dr. Alao “had only been treating
[Bennett] for six months,” that “medical evidence of record d[id] not support”
1 The Social Security Act and the regulations applicable to the evaluation of medical opinion
evidence were amended effective March 27, 2017. “For claims filed before March 27, 2017 (as is
the case here), the agency must apply 20 C.F.R. § 404.1527.” Schillo, 31 F.4th at 70; see also
20 C.F.R. § 404.1527(c).
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Dr. Alao’s findings, and that Dr. Alao’s conclusion that Bennett experienced
“significant limitations” due to “short-term memory loss” was inconsistent with
other providers’ examination results demonstrating that Bennett had “intact or
only mildly impaired memory.” Id.Our “searching review” of the record corroborates the Commissioner’s
determination. Estrella, 925 F.3d at 96 (internal quotation marks omitted). For
instance, contrary to Dr. Alao’s assessment that Bennett could not “[u]nderstand
and remember very short and simple instructions” or “[c]arry out” such
instructions, Certified Admin. Record at 386, treatment records from other
healthcare providers reflected that Bennett’s “[m]emory [was] grossly intact,” id.
at 276; that her “[c]ognitive functioning was normal,” id. at 436; that “[n]o
disorientation” or “confusion was observed,” id. at 317; and that she reported “[n]o
dizziness,” “vertigo,” “fainting,” “anxiety,” “depression,” or “sleep disturbances,”
id. at 413.
Bennett nevertheless asserts that the Commissioner failed to adequately
explain her rejection of Dr. Alao’s conclusion that Bennett could not maintain a
consistent work schedule despite that conclusion’s alleged consistency with other
evidence. This aspect of Bennett’s argument seeks an impermissible reweighing
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of the evidence. Although there is some evidence in the record that could
support Bennett’s position, “whether there is substantial evidence supporting
[Bennett]’s view is not the question here; rather, we must decide whether
substantial evidence supports the ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523
F. App’x 58, 59 (2d Cir. 2013). The record here reflects that there was substantial
evidence to support the ALJ’s finding that Bennett was not as limited in her ability
to maintain a regular work schedule as Dr. Alao opined.
As a threshold matter, Dr. Alao offered no explanation for his opinion
regarding Bennett’s ability to maintain a work schedule. See Certified Admin.
Record at 386. The RFC questionnaire asked Dr. Alao to explain Bennett’s mental
limitations and provide “medical/clinical findings that support [his] assessment.”
Id. Dr. Alao left that space blank, and elsewhere on the questionnaire, he listed
only “short term memory loss” as the “clinical findings . . . that demonstrate the
severity” of Bennett’s impairment. Id. at 384. Contrary to Dr. Alao’s conclusory
assessment, the record reflects many psychiatric and neurological examinations
that yielded normal results, including some reflecting that Bennett had intact
memory. See, e.g., id. at 286, 309, 317–18, 328, 422, 436, 442. Other medical
professionals found Bennett to have only mild limitations in maintaining a
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schedule, see id. at 75, 348–50, which support, rather than undermine, the ALJ’s
decision to discount the portion of Dr. Alao’s opinion finding that Bennett was
significantly limited in that domain.2
Although neither the ALJ nor the Appeals Council offered explicit reasons
for discounting the portion of Dr. Alao’s opinion addressing Bennett’s ability to
maintain a consistent schedule, both adequately explained the reasons for
assigning the opinion limited or little weight. Bennett points to no case requiring
that an ALJ explain the weight afforded to every issue discussed in a treating
physician’s opinion. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)
(“[W]e do not require that [the agency] . . . mention[] every item of testimony
presented to [it] or . . . explain[] why [it] considered particular evidence
unpersuasive or insufficient to lead [it] to a conclusion.”). In sum, because the
Commissioner provided “good reasons” for her decision to give Dr. Alao’s
opinion little weight, and because “a searching review of the record assures us that
2 To the extent other medical opinions might support additional non-exertional limitations in the
RFC, the Commissioner must formulate her RFC determination based on the entire record, not
just the medical opinions. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine
conflicts in the medical evidence are for the Commissioner to resolve.”); Trepanier v. Comm’r of
Soc. Sec. Admin., 752 F. App’x 75, 79 (2d Cir. 2018) (“Even where the ALJ’s determination does not
perfectly correspond with any of the opinions of medical sources cited in his decision, however,
the ALJ was entitled to weigh all of the evidence available to make a residual functional capacity
finding that was consistent with the record as a whole.”). Here, the Commissioner’s RFC
determination is adequately supported by the record as a whole.
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the substance of the treating[-]physician rule” was not compromised, Estrella, 925
F.3d at 96 (internal quotation marks omitted), we cannot agree with Bennett’s
contention that “[r]emand is required” because the Commissioner “did not
properly apply the treating physician’s rule when considering Dr. Alao’s
assessment,” Reply Br. at 18.
We have considered all of Bennett’s remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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