Wavercak v. Astrue , 420 F. App'x 91 ( 2011 )

10-3077-cv
Wavercak v. Astrue
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 25th day of April, two thousand eleven.
PRESENT: AMALYA L. KEARSE,
DENNY CHIN,
Circuit Judges.
JED S. RAKOFF,
District Judge.*
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MICHAEL P. WAVERCAK,
Plaintiff-Appellant,
-v.- 10-3077-cv
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
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FOR PLAINTIFF-APPELLANT: JAYA A. SHURTLIFF, Syracuse,
New York.
*
Hon. Jed S. Rakoff, United States District Judge for
the Southern District of New York, sitting by designation.
FOR DEFENDANT-APPELLE: MARIA FRAGASSI-SANTANGELO,
Special Assistant United
States Attorney (Stephen P.
Conte, Chief Counsel, Region
II Office of the General
Counsel, Social Security
Administration, on the brief),
for Richard S. Hartunian,
United States Attorney for the
Northern District of New York,
Syracuse, New York.
Appeal from an order of the United States District
Court for the Northern District of New York (Sharpe, J.) entered
on June 25, 2010, affirming a decision of the Commissioner of
Social Security (the "Commissioner") denying plaintiff-appellant
Michael P. Wavercak's claim for Social Security Disability
Insurance Benefits ("DIB") for March 21, 1998 through June 13,
2000.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment is AFFIRMED.
We assume the parties' familiarity with the facts and
procedural history of the case and the issues presented for
review, which we summarize as follows:
In November 1998, Wavercak applied for DIB under the
Social Security Act (the "Act"), alleging disability since March
21, 1998 based on injuries sustained in a car accident. After
his application was denied, Wavercak unsuccessfully challenged
the decision at a December 1999 hearing before Administrative Law
Judge ("ALJ") John R. Tarrant.
Wavercak, who complained of frequent headaches, a disc
herniation, neck, shoulder, and arm problems, and later a sleep
disorder, then proceeded to exhaust his administrative remedies
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in disputing the ALJ's denial of his requested benefits.
Eventually, Wavercak commenced a civil action that resulted in an
order of the Northern District of New York (Mordue, J.) entered
on June 8, 2004, remanding the case to the Social Security
Administration (the "SSA") Appeals Council (the "Appeals
Council") for further administrative proceedings. The Appeals
Council vacated the ALJ's decision and remanded the matter, and
it was heard by a different ALJ.
In March 2005, ALJ Michael Brounoff held a hearing
where Wavercak and an independent vocational expert testified.
Eight months later, ALJ Brounoff denied Wavercak's application in
an order that became the Commissioner's final ruling. Wavercak
commenced the present action in May 2007 seeking review of this
ruling. In June 2010, the district court affirmed the
Commissioner's finding that Wavercak was not disabled within the
meaning of the Act.
On appeal, Wavercak argues that the ALJ committed
reversible error by: (1) concluding that Wavercak's purported
sleep apnea was not a severe impairment; (2) failing to give his
treating physician's opinion controlling weight; (3) improperly
discounting Wavercak's pain testimony as not "entirely credible";
and (4) relying on the testimony of a vocational expert whose
opinion was allegedly based on a flawed assessment of Wavercak's
residual functional capacity ("RFC").
We address each argument in turn, and "review the
administrative record de novo to determine whether there is
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substantial evidence supporting the Commissioner's decision and
whether the Commissioner applied the correct legal standard."
Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002).
"Substantial evidence means more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Moran v. Astrue, 569 F.3d
108, 112 (2d Cir. 2009)(internal quotation marks omitted).
1. Severe Impairment Analysis
Wavercak first argues that the ALJ erred by failing to
recognize that his sleep apnea constituted a severe impairment
within the meaning of the SSA regulations. The argument fails.
Contrary to Wavercak's contention, the ruling and the transcript
of the hearing make clear that ALJ Brounoff considered the
"combined effect of all of [Wavercak's] impairments" in
concluding that his alleged sleep apnea did not constitute a
severe impairment during the relevant period. 42 U.S.C. §
423(d)(2)(B); accord 20 C.F.R. § 404.1523.
At the March 2005 hearing, for example, when asked to
explain how sleep apnea affected him during the time in question,
Wavercak responded that his fatigue and day-time drowsiness were
caused more by the pain in his neck than from any sleep disorder.
When the ALJ asked Wavercak to point to a medical exhibit in the
record that documented the presence of sleep apnea before June
13, 2000, Wavercak was unable to do so. Because there is
substantial evidence in the record to support the ALJ's
determination with regard to Wavercak's purported sleep apnea, it
will not be disturbed.
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2. The Treating Physician Rule
Next, Wavercak asserts that the ALJ applied the
treating physician rule improperly by not affording Dr.
Eppolito's opinion -- that Wavercak was unable to perform
sedentary work -- controlling weight. This argument is
unavailing. An ALJ is not required to give deference to a
claimant's treating physician's opinion where that opinion, as
here, is "not consistent with other substantial evidence in the
record." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004).
Dr. Eppolito's assessments were called into question by
other medical evidence in the record, including his own earlier
reports which did not always conclude that Wavercak was unable to
engage in any sedentary work during the relevant period. While
an ALJ may not reject a treating physician's disability opinion
based "solely" on internal conflicts in the doctor's clinical
findings, Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998), here
the record contains other medical opinions also at odds with a
conclusion that Wavercak was precluded from any form of
employment. For example, one physician who examined Wavercak
concluded that he had no gross limitations to sitting, standing,
walking, or climbing, and only mild to moderate limitations in
the amount he could lift, carry, push, and pull. In addition,
Dr. Eppolito's assessments conflicted with Wavercak's description
of his daily activities. Accordingly, the ALJ was not required
to defer to Dr. Eppolito's opinion. See 20 C.F.R. §§
404.1527(d)(2)(i)-(ii), (d)(3)-(6) (explaining that deference
accorded to treating physician's opinion may be reduced based on
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consistency of opinion with rest of medical record, and any other
elements "which tend to . . . contradict the opinion").
3. Credibility Assessment
Wavercak also argues that by finding his testimony "not
entirely credible," the ALJ failed to give proper weight to his
strong work history. In reviewing this challenge, we note that
"[i]t is the function of the [Commissioner], not ourselves, . . .
to appraise the credibility of witnesses, including the
claimant." Carroll v. Sec'y of Health & Human Servs., 705 F.2d
638, 642 (2d Cir. 1983).
To be sure, "a good work history may be deemed
probative of credibility." Schaal v. Apfel, 134 F.3d 496, 502
(2d Cir. 1998); see also Rivera v. Schweiker, 717 F.2d 719, 725
(2d Cir. 1983) (noting that evidence of good work record is
evidence of credibility). Work history, however, is "just one of
many factors" appropriately considered in assessing credibility.
Schaal, 134 F.3d at 502.
In rejecting Wavercak's testimony as to the severity of
his impairment, the ALJ reasonably relied on contrary evidence in
the record, including extensive testimony and treatment notes
from numerous physicians. These reports encompassed those from
treating sources who stated that Wavercak could perform work --
at least at a light duty level. The ALJ's conclusion is also
consistent with the claimant's own account of his participation
in a range of daily activities during the period in question,
including cleaning, cooking, driving, picking up his son at
school, reading, shopping, as well as visiting friends and
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family. See 20 C.F.R. § 404.1529(c)(3)(i). On this record, we
identify no error in the ALJ's credibility assessment.
Further, the ALJ did not ignore Wavercak's work
history. To the contrary, the ALJ was well-aware of Wavercak's
17-year employment as a warehouse worker for a food distributing
company, and considered this in the disability analysis when he
concluded that Wavercak's RFC for light work prevented him from
performing the medium demands of his past warehouse work. That
Wavercak's good work history was not specifically referenced in
the ALJ's decision does not undermine the credibility assessment,
given the substantial evidence supporting the ALJ's
determination.
4. Vocational Expert
Finally, Wavercak contends that the ALJ erred in
relying on the testimony of a vocational expert because the
expert's opinion was based on a flawed assessment of Wavercak's
RFC. Because we have already concluded that substantial record
evidence supports the RFC finding, we necessarily reject
Wavercak's vocational expert challenge. See generally Butts v.
Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)(noting that
Commissioner may rely on testimony of vocational expert).
CONCLUSION
We have considered all of Wavercak's other contentions
on appeal and have found them to be without merit. For all the
reasons stated, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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