17-643-cv Rusin v. Berryhill 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY 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 Courthous e, 40 Foley Square, in the City of New York, on the 26 th day of February, two thousand eighteen. PRESENT: BARRINGTON D. PARKER, PETER W. HALL, RAYMOND J. LOHIER, JR., Circuit Judges

.

--------------- --------------- --------------- --------------- ---------- D AVID R USIN , Plaintiff-Appellant , v. No. 17-643-cv
N ANCY A. B ERRYHILL , Acting Commissioner of Social Security, Defendant-Appellee

.

--------------- --------------- --------------- --------------- ---------- For Appellant: M ICHAEL C ONFUSIONE , Hegge & Confusione, LLC, Mullica Hill, New Jersey. For Appellee: L AUREN E. M YERS , Special Assistant United States Attorney (Stephen P. Conte, Regional Chief Counsel—Region II, Office of the General Counsel of the Social Security Administration, on the brief ), for James P. Kennedy, Jr., United States Attorney for the Western District of New York, New York, New York.

### 2 Appeal from a judgment of the United States Di strict Court for the We stern District of New York (Telesca, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on January 10, 2017, is AFFIRMED

. David Rusin (“Rusin”) appeals from the distri ct court’s affirmance of the Social Security Commissioner’s (the “Commissioner” ) denial of disability insurance benefits. We review the administrative record de novo to determine whether the Commissioner applied the proper legal standards and whether the Comm issioner’s decision is supporte d by substantial evidence. See Zabala v. Astrue , 595 F.3d 402, 408 (2d Cir. 2010); see also 42 U.S.C. § 405(g). “Substantial evidence is ‘more than a mere scintilla’ and ‘mean s such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Lesterhuis v. Colvin , 805 F.3d 83, 87 (2d Cir. 2015) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971)). “If evidence is susceptible to more than one rational interpre tation, the Commissioner’s conclusion must be upheld.” McIntyre v. Colvin , 758 F.3d 146, 149 (2d Cir. 2014). In undertaking this review, we assume the parties’ familiarity with the facts and procedural history, which we reference only as necessary to explain our decision to affirm the district court’s decision.
I. Treating Physician Opinion Rusin submits that the administrative law j udge (“ALJ”) violated the treating physician rule by assigning minimal weight to the opinion of Rusin’s treating psychiatrist, Dr. Thomas Letourneau. Generally, “the opinion of a clai mant’s treating physician as to the nature and severity of the impairment is given ‘controll ing weight’ so long as it ‘is well-supported by medically acceptable clinical and la boratory diagnostic techniques and is not inconsistent with the

### 3 other substantial evidence in [the] case record.’” Burgess v. Astrue , 537 F.3d 117, 128 (2d. Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)). The AL J did not err in declining to afford Dr. Letourneau’s opinion controlling we ight because his opinion is in consistent with his treatment notes and diagnostic observations, the other me dical opinion evidence, and Rusin’s reported activities of daily living. See 20 C.F.R. § 404.1527(d)(2); Halloran v. Barnhart , 362 F.3d 28, 32 (2d Cir. 2004) (finding that a treating physician’s opi nion is not afforded cont rolling weight if the opinion is inconsistent with the opinions of othe r medical experts). Indeed, Dr. Letourneau’s opinion is supported by the record only to the extent Dr. Let ourneau concluded that Rusin does not have the capacity to return to work as a corporate executive.
II. The ALJ’s Duty to Recontact Dr. Letourneau Rusin contends that the ALJ had a duty to recontact Dr. Letourneau to resolve any inconsistencies between Dr. Letourneau’s treatmen t notes and his disabil ity opinion. Rusin did not make this argument before the district court and has, therefore, waiv ed his ability to pursue this argument on appeal. See Poupore v. Astrue , 566 F.3d 303, 306 (2d Cir. 2009); see also
Stanton v. Astrue , 370 F. App’x 231, 233 (2d Cir. 2010) (finding that the claimant waived her right to challenge the ALJ’s Step Two findings by not ra ising the argument before the district court). To the extent this argument is reviewable, the ALJ was under no obligation to recontact Dr. Letourneau where there were no obvious gaps in the administrati ve record and the ALJ possessed Rusin’s complete medical history. Rosa v. Callahan , 168 F.3d 72, 79 n.5 (2d Cir. 1999) (“[W]here there are no obvious gaps in the admi nistrative record, and where the ALJ already possesses a ‘complete medical history,’ the AL J is under no obligation to seek additional information in advance of reject ing a benefits claim.” (quoting Perez v. Chater , 77 F.3d 41, 48 (2d

### 4 Cir. 1996)).
III. Independent Psychiatrist Review Rusin argues that because the ALJ declined to afford Dr. Letourneau’s opinion controlling weight, the ALJ was required to ha ve an independent psychiatrist review the record and offer an opinion. As he conceded at oral argument, Rusin did not raise this argument before the district court and therefore has also waived his ab ility to pursue this argument on appeal. Poupore , 566 F.3d at 306. To the extent this argument is revi ewable, it lacks merit. The record contains a review by a state agency psychologist, E. Kamin, who concluded that Rusin has mild limitations in activities of daily liv ing, social functioning, concentration, pe rsistence, and pace. This opinion is consistent with the ALJ’s residua l functional capacity assessment. IV. The ALJ’S Step Three Analysis Rusin submits that the ALJ erred in concludi ng that he does not have an impairment or combination of impairments that meets or medica lly equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Specifically, Rusin argues that he is disabled under Listing 12.04. Again, Rusin did not make this argument before the district court and thereby has waived pursuing it on appeal. Poupore , 566 F.3d at 303. To the extent th is argument is reviewable, the ALJ’s conclusion that Rusin did not meet the 12.04 Listing is supported by substantial evidence in the record. Rusin testified that he can enga ge in activities of daily living, and there is no evidence that Rusin has experienced any extende d episodes of decompensation. Accordingly, Rusin does not meet the 12.04 Listing under either Paragraph B or Paragraph C criteria. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.

### 5 V. The ALJ’s Disability Determination Finally, Rusin faults the ALJ’s adverse credib ility finding. To ev aluate a claimant’s credibility, the ALJ is required to take a claimant ’s reports of limitations into account, 20 C.F.R. § 416.929(a), but the ALJ is “not required to accept the claimant’s subjective complaints without question,” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). Importa ntly, it is the function of the Commissioner, not the reviewing co urt, to “appraise the credibil ity of witnesses, including the claimant.” Carroll v. Sec’y of Health & Human Servs. , 705 F.2d 638, 642 (2d Cir. 1983). The ALJ’s evaluation of Rusin’s credibility is supported by substantial evidence. To begin, the objective medical evidence does not dem onstrate that Rusin’s symptoms are as severe as he alleges. Rusin was examined by multiple mental health professionals who consistently noted that Rusin had normal sp eech, logical thoughts, intact c ognitive functioning and memory, fair judgment, and normal attention. The medical evidence demonstrates that Rusin’s condition precludes him from returning to work as a co rporate president but does not prevent him from engaging in unskilled or semiskilled work. Rusin’s subjective complaints also lack support from his testimony. Rusin reported that he cooked simple meals daily, left the house dail y, can drive, and shopped for groceries every two weeks. At the hearing, Rusin te stified that he performed repair s for his mother about once every three months, walked for exercise, spent time with his friends but not on a regular basis, watched documentaries, and paid bills. Additionally, Rusin testified that he gave an opinion to Harvard’s Endowment on whether to make certain investme nts, was on the president’s circle for the Rochester Institute of Technology, and advise d lawyers and accountants on the viability of companies based on his expertise. These activitie s of daily living are inconsistent with Rusin’s

### 6 complaints of total debilitation. We have considered Rusin’s remaining argumen ts on appeal and find them to be without merit. We AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court