15-83-cv Guerra v. Colvin

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 1 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 2 PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 3 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 4 SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST 5 CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE 6 (WITH THE NOTATION “SUMMARY OR DER”). A PART Y CITING TO A 7 SUMMARY ORDER MUST SERVE A CO PY OF IT ON ANY PARTY NOT 8 REPRESENTED BY COUNSEL. 9

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at 10 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 11 on the 14 th day of October, two thousand fifteen. 12 13 PRESENT: 14 G UIDO C ALABRESI , 15 B ARRINGTON D. P ARKER , 16 S USAN L. C ARNEY , 17 Circuit Judges

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_____________ _______________ _____________ 19 20 J USTINE G UERRA , 21 22 Plaintiff-Appellant
, 23 24 v. No. 15-83-cv 25 26 C AROLYN C OLVIN , A CTING C OMMISSIONER OF 27 S OCIAL S ECURITY , 28 29 Defendant-Appellee

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_____________ _______________ _____________ 31 32 FOR APPELLANT: M ARK S CHNEIDER , Plattsburgh, NY. 33 34 FOR APPELLEE: L AUREN E. M YERS , Special Assistant 35 United States Attorney (Stephen P. Conte, 36 Regional Chief Counsel, Office of the 372 General Counsel, Social Security 1 Administration, New York, NY, on the 2 brief ), for Richard S. Hartunian, United 3 States Attorney for the Northern District 4 of New York, Syracuse, NY. 5 6 Appeal from a judgment of the United States District Court for th e Northern District 7 of New York (David E. Peebles, Magistrate Judge ). 8
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 9 ADJUDGED, AND DECREED that the judgment entered on January 7, 2015, is 10
AFFIRMED

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Plaintiff Justine Guerra challenges the Di strict Court’s affirmance of the Acting 12 Commissioner of Social Security’s denial of he r application for disability benefits. Guerra 13 contends that the administrative law judge (“ ALJ”) erred in concluding that she was not 14 disabled, as defined by the Social Security Act, from July 7, 2010, th rough August 14, 2012, 15 the date of the ALJ decision. We assume the pa rties’ familiarity with the underlying facts 16 and the procedural history of the case, to which we refer only as necessary to explain our 17
decision to affirm. 18
“When deciding an appeal from a denial of disability benefits, we focus on the 19 administrative ruling rather than the district court’s opinion.” McIntyre v. Colvin , 758 F.3d 20 146, 149 (2d Cir. 2014) (internal quotation mark s omitted). We review the administrative 21
record de novo , asking whether the ALJ applied the correct legal standard and whether 22 substantial evidence supports his decision. Zabala v. Astrue , 595 F.3d 402, 408 (2d Cir. 2010). 23
We define “substantial evidence” as evidence amounting to “more than a mere scintilla,” and 24
as “such relevant evidence as a reasonable mi nd might accept as adequate to support a 25
conclusion.” Richardson v. Perales , 402 U.S. 389, 401 (1971) (internal quotation marks 26 omitted). This is “a very deferential standard of review . . . . [This] means once an ALJ finds 27 facts, we can reject [them] only if a reasonable factfinder would have to conclude otherwise .” 28 Brault v. Soc. Sec. Admin., Comm’r , 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) 29 (internal quotation marks omitted). 303 Guerra first argues that the ALJ erred in finding that her carpal tunnel syndrome, 1 polycystic ovary disorder, and chronic diarrhea did not constitute “severe impairments.” A 2 “severe impairment” is one that “significantly limi ts [the claimant’s] physical or mental ability 3 to do basic work activities.” 20 C.F.R. § 404.1520(c); see also Bowen v. Yuckert , 482 U.S. 137, 4 139 (1987). Guerra did not establish that any of these conditions was a severe impairment 5 during the relevant period. The record sugges ts that Guerra did not show signs of carpal 6 tunnel syndrome until after the ALJ rendered its decision. Guerra also testified that she 7 regulated her polycystic ovary disorder and told one of her doctors that her diarrhea did not 8 amount to a significant quality of life impairme nt. Admin. R. at 51, 487. Substantial 9 evidence therefore supports the ALJ’s exclusi on of carpal tunnel syndrome, polycystic ovary 10 disorder, and chronic diarrhea from the list of Guerra’s claimed severe impairments. 11
Substantial evidence also supports the ALJ’ s determination of Guerra’s residual 12 functional capacity (“RFC”). The ALJ conclu ded that Guerra “has the [RFC] to perform 13 sedentary work,” and can “stand or walk for up to two hours total and sit for up to six hours 14 total in an eight-hour workday.” Special App. at 8. 1 The record reflects the opinions of 15 multiple medical professionals that Guerra could sit for extended periods and ambulate 16 normally, supporting the RFC determinat ion. Although Guerra testified that her pain was 17 too severe for her to work “at all,” an AL J “may exercise discre tion in weighing the 18 credibility of the claimant’s testimony in lig ht of the other evidence in the record.” Genier v. 19
Astrue , 606 F.3d 46, 49 (2d Cir. 2010). Not only di d her treating professionals judge that she 20 could sit for long periods, but Guerra he rself acknowledged that she read, watched 21 television, and cross-stitched daily, all activiti es requiring extensive sitting time. She also 22 elected to pursue “conservative therapy” for her spinal conditions and, as late as March 23 2012, only a few months before the end of the relevant period, her medical records reflected 24 “no acute distress.” Admin. R. at 537, 54 2. Thus, the ALJ’s assessment of Guerra’s 25 credibility regarding the severity of her sympto ms is supported by substantial evidence. 26

1 In conjunction with this determination, the ALJ imposed limitations on Guerra’s lifting weights over ten pounds, and on her exposure to respiratory irritants and vibrations in any relevant job. Special App. at 8.4 The ALJ also did not err in finding that Guerra could perform her past work as an 1 artist and in concluding, as a result, that she w as not disabled. If a claimant has the RFC to 2 perform her “past relevant work”— i.e. , any gainful work that was done in the past fifteen 3 years—then she will be found “not disabled.” 20 C.F.R. § 404.1560(b). Here, Guerra was 4 employed as an artist for school fundraisers with in fifteen years of her ALJ hearing. In this 5 capacity, she personalized products using paint pens; shipped items; and stuffed envelopes. 6 This job required her to walk for one hour of the workday and sit for the remainder. She 7 did not need to lift anything heavier than te n pounds. The exertional requirements of this 8 job are compatible with the RFC determinati on. Accordingly, the ALJ did not err in 9 concluding that Guerra could resume her “past relevant work,” a conclusion that renders her 10 “not disabled” under the Social Security regulati ons. In reaching this result, we acknowledge 11 the validity of Guerra’s argument that, in assessi ng her credibility, the ALJ should, as we held 12
in Rivera v. Schweiker , 717 F.2d 719, 725 (2d Cir. 1983), take into account a claimant’s long 13 work record. We, nonetheless, conclude that on the facts of this case the ALJ’s holding can 14
stand. 15
Guerra also maintains that the Appeals Co uncil and the District Court both erred by 16 failing to consider new eviden ce, submitted after the ALJ re ndered its decision. This 17
evidence included medical reco rds and a March 18, 2014 letter from the Department of 18 Education approving, on the basis of her disa bility, Guerra’s application to discharge her 19
loan. Most of the new medical records that Guerra submitted document her symptoms after 20 August 14, 2012, the ALJ decision date; they do not undermine the ALJ’s evaluation of 21
Guerra’s condition during the relevant period . The other medical records were not “new” at 22 all—they were already included in the record, and the ALJ cons idered them. Regarding the 23 loan-discharge letter, Guerra fails to expl ain why the Department of Education’s 2014 24 determination, made nineteen months after the ALJ decision, bears on her disability status as 25 of August 14, 2012. “[I]f new and material ev idence is submitted, the Appeals Council shall 26
consider the additional evidence on ly where it relates to the period on or before the date of 27 the administrative law judge hearing decision.” 20 C.F.R. § 416.1470(b); see Pollard v. Halter
, 28 377 F.3d 183, 193 (2d Cir. 2004) (noting that ne wly submitted evidence must be “relevant to 295 the claimant’s condition during the time pe riod for which benefits were denied”). 1 Accordingly, we discern no erro r in these evid entiary rulings. 2

* * * 3 We have considered Guerra’s remaining arguments and find them to be without 4 merit. For the reasons set out above, the judgment of the District Court is AFFIRMED

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FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk of Court 8