1 13-4395-cv Woodmancy v. Colvin 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 PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION

A 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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 2 nd day of September, two thousand fourteen. PRESENT: GUIDO CALABRESI, REENA RAGGI, DENNY CHIN, Circuit Judges

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---------------------------- ---------------------------- -------------- BARBARA LYNNE WOODMANCY, Plaintiff-Appellant , v. No. 13-4395-cv CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, in place of Michael Astrue, Defendant-Appellee.

-------------------------------------- -------------------------------- FOR APPELLANT: Jaya A. Shurtliff, Stanley Law Offices, Syracuse, New York.

FOR APPELLEE: Sandra M. Grossf eld, Special Assistant United States Attorney, Stephen P. Conte, Regional Chief Counsel, Region II, Office of the General Counsel, Social Security Administration, New York, New York, for Richard S. Hartunian, United States Attorney fo r the Northern District of New York, Syracuse, New York.2 Appeal from a judgment of the United States District Court for the Northern District of New York (Gary L. Sharpe, Chief Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on October 9, 2013, is AFFIRMED. Plaintiff Barbara Lynne Woodmancy challeng es the district court’s affirmance of

the Commissioner of Social Secur ity’s denial of her applica tion for disability benefits.

We review the administrative record de novo , but we will set aside the agency decision “only if the factual findings are not supported by substantial evidence or if the decision is based on legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (citation and internal quotation marks omitted). We have de fined “substantial eviden ce” as more than a “mere scintilla,” and as “such relevant evid ence as a reasonable mind might accept as adequate to support a conclusion.” Selian v. Astrue, 708 F.3d 409 , 417 (2d Cir. 2013) (internal quotation marks and alteration omitte d). A lack of supporting evidence on a

matter where the claimant bears the burden of proof, particularly when coupled with other inconsistent record evidence, can constitute substantial evidence supporting a denial of benefits. See Talavera v. Astrue, 697 F.3d 145, 153 (2d Cir. 2012). In applying these standards here, we assume the parties’ familiarity with th e facts and record of prior proceedings, which we referen ce only as necessary to expl ain our decision to affirm.

1. Consideration of A ll Severe Impairments Woodmancy contends that Administra tive Law Judge (“AL J”) Elizabeth W. Koennecke erred at step two of the disability analysis, see 20 C.F.R. § 404.1520(a)(4)(ii), in finding that between June 15, 2009, a nd January 27, 2011, the period at issue,3 Woodmancy was severely impaired by substanc e abuse, depression, and facet anthropathy, but not by anemia, sleep apnea, and chronic pancreatitis. A claimant has the burden of establishing that she has a “sev ere impairment,” which is “any impairment or combination of impairments which significantly limits [h er] physical or mental ability to do basic work.” 20 C.F.R. § 416.920(c); see Green-Y ounger v. Barnhart, 335 F. 3d 99, 106 (2d Cir. 2003). Woodmancy argues that her anemia, sl eep apnea, and chronic pancreatitis were severe impairments because they required ongoing treatment and caused her functional limitations, pain, and fatigue. For the reasons set forth in the district court’s thorough opinion, see Woodmancy v. Colvin, No. 5: 12-CV-991 GLS, 2013 WL 5567553, at *2 (N.D.N.Y. Oct. 9, 2013), we conclude that substantial evidence supports the agency determination that Woodmancy did not carry her burden of demonstrating that these conditions were severe impairments. 1 Nor are we persuaded that there is any unwarranted inconsistency between the ALJ’ s determination that these co nditions did not cause serious impairment while substance abuse did. Wh ile these conditions may all have required ongoing treatment, substantial re cord evidence indicated that Woodmancy either failed to pursue or to benefit from treatment for substa nce abuse but did bene fit from treatment for the other conditions in ways that minimize d their impairing effe ct. See Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) ( holding condition was not severe impairment where it improved from treatment).

1 In any event, we identify no error warranting remand because the ALJ did identify severe impairments at step two, so Woodmancy’ s claim proceeded th rough the sequential evaluation process, in which all of Woodmancy ’s ailments were part of the analysis.4 2. Residual Functional Capacity Woodmancy argues that the ALJ’s residual functional capacity (“RFC”) 2

determination followi ng step three of the disability analysis was not supported by substantial evidence in light of the 2010 opinions of treati ng physician Buchan and nurse practitioner Nemitz that Woodmancy was disa bled from performing even sedentary work during the relevant period. Woodmancy further contends that the ALJ failed to factor into the RFC determination her alleged in ability to cope with work stress. “[W]hile a treating physician’s retrospec tive diagnosis is not conclusive, it is entitled to controlling weight un less it is contradicted by other medical evidence or overwhelmingly compelling non-medical eviden ce.” Byam v. Barnhart, 336 F.3d 172, 183 (2d Cir. 2003) (citations an d internal quotation marks omitted); see Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996) (“A treating physician’s retrospec tive medical assessment of a patient may be probative when based upon clini cally acceptable diagnostic techniques.”).

If the ALJ chooses not to affo rd such an opinion controlli ng weight, then the ALJ must consider the following factors in deciding what weight to assign the opinion: (1) examining relationship; (2) treatment relationship, including its length, nature and extent; (3) supportability with medical evidence; (4) consistency with the record as a whole;

2 A claimant’s RFC “is the most [she] can still do despite [her] limitations.” 20 C.F.R. § 416.945(a)(1). In assessing a claimant’s RFC, an ALJ must consider “all of the relevant medical and other evidence,” including a claimant ’s subjective complaints of pain. Id. § 416.945(a)(3). This court must affirm an ALJ’s RFC determination when it is supported by substantial evidence in the record. See 42 U.S.C. § 405(g); Perez v. Charter, 77 F.3d 41, 46 (2d Cir. 1996).5 (5) specialization of the examiner; and (6) a ny other relevant fact ors. See 20 C.F.R. § 404.1527(c)(1)–(6). Here, the ALJ acted within her discretion in according the Buchan/Nemitz opinions little weight because reco rd evidence of unremarkable c linical findings contradicted or failed to support the limitations conclusions in these opinions. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (stating that treating physician’s opinion is not controlling when contradicted by “other substantial evid ence in the record”). As for Woodmancy’s alleged inability to cope with work stress, Buch an and Nemitz did not treat this condition. In any event, the ALJ reasonably relied on cons ultative psychologist Dr. Barry who, after examination, opined that Woodmancy could perform basic work tasks despite her complaints of stressors. Larg ely for the reasons identified by the district court, see Woodmancy v. Colvin, 2013 WL 5567553, at *3–4, substa ntial evidence supports the agency’s RFC assessment. 3 3. Failure to Use Vocational Expert Finally, Woodmancy argues that the ALJ er red by not obtaining the opinion of a vocational expert in determining whether th ere were jobs in the national economy that Woodmancy could perform. “If a claima nt has nonexertional limitations that ‘significantly limit the range of work permitt ed by his exertional limitations,’ the ALJ is required to consult with a vocational expert.” Zabala v. Astrue, 5 95 F.3d 402, 410 (2d Cir.

3 Insofar as Woodmancy alleges inconsis tency in the ALJ’s findings classifying Woodmancy’s restrictions in activities of da ily living as both “mild ” and “moderate,” we identify no error warranting re mand, as the ALJ’s RFC determination was supported by substantial evidence.6 2010) (quoting Bapp v. Bowe n, 802 F.2d 601, 605 (2d Cir. 1986)). A nonexertional impairment will “significantly limit” a claimant’s range of work “when it causes an additional loss of work capacity beyond a negligible one, or, in other words, one that so narrows a claimant’s possible range of wo rk as to deprive him of a meaningful employment opportunity.” Id. at 411 (internal q uotation marks and a lteration omitted). If, however, a claimant does not have such li mitations, the ALJ may rely on the medical vocational guidelines (the “grids”) to adjudicate the claim. See 20 C.F.R. pt. 404, subpt. P, app. 2; id. § 416.969; c f. Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999) (observing that where individual seeking disability benefits suffers onl y from exertional impairments, “Commissioner meets [her] burden at the fifth step by resorting to . . . the grids”).

The ALJ concluded that W oodmancy did not have si gnificant nonexertional limitations and therefore relied on the grids to adjudicate her claim without soliciting the testimony of a vocational expert. In urgi ng error, Woodmancy argues that the ALJ’s finding that Woodmancy’s depression wa s a “severe impairment” manifested a nonexertional limitation requiring consultation with a vocationa l expert. To the contrary, the ALJ found that although Woodmancy suffe red from depression, she “retain[ed] the ability (on a sustained basis) to understand, carry out, and re member simple instructions[,] . . . respond appropriately to supervision, cowo rkers, and usual work s ituations and to deal with changes in a routine wo rk setting.” J.A. 16, 19–20. This determination was supported by substantial eviden ce in the record, specifically, the opinions of Dr. Barry and the State consultant that despite Woodmanc y’s depression, she c ould perform unskilled remunerative work. Accordingly, becaus e there is substantial evidence that7 Woodmancy’s nonexertional impairments did not “significantly limit the range of work permitted by [her] exertional limitations,” the ALJ was not required to consult a vocational expert. Zabala v. Astrue, 595 F.3d at 410–11.

4. Conclusion We have considered Woodmancy’s remainin g arguments and conclude that they are without merit. Therefore, we AFFIRM the judgment of the district court.

FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court