11-2383-cv Lohnas 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 summa ry 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 se rve 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 31 st day of January, two thousand thirteen.

PRESENT: J OSÉ A. C ABRANES
, R ICHARD C. W ESLEY
, D EBRA A NN L IVINGSTON
, Circuit Judges.

_____________________________________

D ARLENE M. L OHNAS
,
Plaintiff-Appellant

,

v. No. 11-2383-cv

M ICHAEL J. A STRUE
, C OMMISSIONER OF S OCIAL S ECURITY
,
Defendant-Appellee.

_____________________________________

FOR PLAINTIFF-APPELLANT: Darlene M. Lohnas, pro se , Lockport, N.Y.

FOR DEFENDANT-APPELLEE: Benil Abraham, Stephen P. Conte, for William J. Hochul, Jr., United States Attorney, United States Attorney’s Office for the Western District of New York.

Appeal from a judgment of the United States District Court for the Western District of New York (William M. Skretny, Chief Judge ).2 UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the District Court’s March 31, 2011 Decision and Order is

AFFIRMED

.

Darlene M. Lohnas appeals from the District Court’s dismissal of her complaint, which
seeks review of a final decision of the Commissi oner of Social Security (“Commissioner”). The Commissioner previously had denied her application for disability insurance benefits. We assume the parties’ familiarity with the underlying facts an d procedural history of the case, as well as the issues on appeal.

DISCUSSION

This Court reviews de novo orders granting motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). See Jasinski v. Barnhart , 341 F.3d 182, 184 (2d Cir. 2003). When reviewing determinations made by the Commissi oner, this Court conducts a “plenary review
of the administrative record.” Burgess v. Astrue , 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation marks and citations omitted). This Court may set aside the Commissioner’s decision only if the factual findings are not supported by substantial evidence, or if incorrect legal standards were applied. See, e.g.

, id. at 127.

Under the Social Security Act, a “disability” is an “inability to engage in any substantial gainful activity by reason of any medically determina ble physical or mental impairment which can be expected to result in death or which has lasted or ca n be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To determine whether an individual is disabled, the Social Security Administration Commission created a five-step sequential evaluation process. 20 C.F.R. § 404.1520. The analysis proceeds as follows:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” wh ich significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will cons ider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the3 claimant is unable to perform his past work, the [Commissioner] then determines

whether there is other work whic h the claimant could perform.

Rivera v. Schweiker , 717 F.2d 719, 722 (2d Cir. 1983) (quoting Berry v. Schweiker , 675 F.2d 464, 467 (2d Cir. 1982)). The claimant bears the burden of prov ing the first four elements, and, with regard to the fifth element, there is a limited burden shift to the Commissioner only to show “that there is work in the national economy that the claimant can do . . . .” Poupore v. Astrue , 566 F.3d 303, 306 (2d Cir. 2009) (citing 20 C. F.R. § 404.1560(c)(2)).

Having conducted a careful and plenary review of the administrative record, we conclude that the Commissioner’s decision was supported by sub stantial evidence in the record, and we affirmthe judgment of the District Court substantially for the reasons stated in its comprehensive and wellreasoned decision. 1 With regard to Lohnas’s argument th at the Administrative Law Judge (“ALJ”) failed to consider the evidence or standards underlying the determination of disability by the Department of Veterans Affairs, we note simply that, although a determination made by another governmental agency that a social security claimant is disabled is entitled to “some weight and should be considered,” that determination is not binding. See Cutler v. Weinberger , 516 F.2d 1282, 1286 (2d Cir. 1975). Here, the ALJ did acknow ledge the Department of Veterans Affairs’ determination of disability. Because the Commissioner is not bound by another agency’s disability determination, and because the Commissioner’s deci sion was supported by substantial evidence, any alleged failure by the ALJ to consider fully th e disability determination by the Department of

Veterans Affairs does not affect our decision to affirm.

CONCLUSION

We have considered all of Lohnas’s arguments on appeal and find them to be without merit. Accordingly, the District Court’s Ma rch 31, 2011 Decision and Order is AFFIRMED

.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 In affirming the District Court’s judgment, we note that be cause this Court generally does not review arguments raised for the first time on appeal, see Singleton v. Wulff , 428 U.S. 106, 120-21 (1976), we only c onsider Lohnas’s arguments raised below, including that (1) the ALJ erred by finding that he r depression was not severe, and (2) that the ALJ failed to consider the evidence or standards unde rlying the determination of disability by the Department of Veterans Affairs.