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O’Connell v. Colvin

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER

J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S

L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER

THE F EDERAL A PPENDIX 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 Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 11 th day of March, two thousand

fourteen.

PRESENT: RICHARD C. WESLEY,

CHRISTOPHER F. DRONEY,

Circuit Judges,

RONNIE ABRAMS,

District Judge

. *

________________ _______________ _____________

PATRICK JAMES O’CONNELL,

Plaintiff

‐ Appellant,

‐ v. ‐ No. 13

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CAROLYN W. COLVIN,

Commissioner of the Social Security

Administration,

Defendant

‐ Appellee.

* The Honorable Judge Ronnie Abrams, of the United States District Court for the

Southern District of New York, sitting by designation.2 ________________ _______________ _____________ FOR APPELLANT: JOSEPH D. CLARK, Clark Jordan Pezzino, Buffalo, NY

(Lewis Lesses Schwartz, Meyers, Quinn & Schwartz

LLP, Buffalo, NY, on the brief ).

FOR APPELLEE: JASON P. PECK, Special Assistant United States

Attorney (Stephen P. Conte, Regional Chief Counsel,

Region II, Office of the General Counsel Social Security

Administration, on the brief ), for William J. Hochul, Jr.,

United States Attorney for the Western District of New

York, Buffalo, NY.

________________ _______________ _____________

Appeal from the United States District Court for the Western District of

New York (William M. Skretny, Judge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the district court be and

hereby is AFFIRMED.

Plaintiff

‐ Appellant Patrick James O’Connell appeals from a March 28, 2013

judgment by the United States District Court for the Western District of New

York (Skretny, J. ) affirming the decision of the Commissioner of Social Security to

deny O’Connell disability insurance benefits. We assume the parties’ familiarity

with the underlying facts, procedural history, and issues on appeal.

In deciding an appeal from a denial of disability benefits, we conduct a

plenary review of the administrative record, focusing on the administrative3 ruling rather than the district court’s opinion. Moran v. Astrue

, 569 F.3d 108, 112

(2d Cir. 2009). We review the Commissioner’s decision to determine if the correct

legal standards have been applied and if the decision is supported by substantial

evidence. Burgess v. Astrue

, 537 F.3d 117, 128 (2d Cir. 2008); see 42 U.S.C. § 405(g).

We reject O’Connell’s argument that the district court erred by failing to

remand his case to the Commissioner based on the new evidence that he

submitted in this litigation. Although evidence of an applicant’s condition

subsequent to his date last insured may be pertinent to his condition prior to that

date, Lisa v. Sec’y of Dep’t of Health & Human Servs.

, 940 F.2d 40, 44 (2d Cir. 1991),

the district court properly found the new evidence submitted by O’Connell

immaterial because there was no “reasonable possibility that the new evidence

would have influenced the [Commissioner] to decide claimant’s application

differently,” Tirado v. Bowen

, 842 F.2d 595, 597 (2d Cir. 1988).

O’Connell also contends that the ALJ committed legal error by failing to

develop adequately the administrative record. Specifically, O’Connell argues that

the ALJ was obligated to obtain (1) treatment records from the time of his initial

knee injury, more than a decade prior to his application for benefits; and (2)

records from his ongoing treatment more than two years after his date last4 insured that he alleges shed light on his condition as of his date last insured. In

the absence of any obvious gaps or inconsistencies in the record for the relevant

time period prior to O’Connell’s date last insured, however, the ALJ was under

no obligation to further develop the record. See Rosa v. Callahan

, 168 F.3d 72, 79

n.5 (2d Cir. 1999).

O’Connell next submits that the ALJ erred at step two of the five

‐ step

analysis used to determine disability, see 20 C.F.R. § 404.1520(a)(4), by failing to

determine that he suffered from a severe right knee impairment prior to his date

last insured. At step two, however, the ALJ identified other “severe

impairments,” including O’Connell’s status post stent placement, coronary artery

disease, and angina, and therefore proceeded with the subsequent steps. And, in

those subsequent steps the ALJ specifically considered O’Connor’s right knee

dysfunction. Because this condition was considered during the subsequent steps,

any error was harmless. See 42 U.S.C. § 423(d)(2)(B) (requiring consideration of

“the combined effect of all of the individual’s impairments”). Further, contrary to

O’Connell’s argument, the ALJ’s decision makes clear that he considered “all

symptoms” and the “combination of impairments” in making his determination.5 We also reject O’Connell’s argument that the ALJ erred by finding that his

testimony concerning the intensity, persistence, and limiting effects of his

impairments was not credible to the extent alleged. The ALJ properly gave

specific reasons for his adverse credibility finding, and those reasons were

supported by substantial evidence in the record. We have considered

O’Connell’s remaining arguments and find they lack merit.

For the reasons stated above, the judgment of the district court is

AFFIRMED

.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk