20

- 1472 Curry v. Comm’ r of Social Security

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 SUMMARY ORD ER 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 TO 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 14 th d ay of May
, two thousand twenty

- one

.
PRESENT: B ARRINGTON D. P ARKER , S USAN L. C ARNEY , S TEVEN J. M ENASHI , Circuit Judges

.

_________________________________________ J AMES B ERNARD C URRY , Plaintiff

- Appellant
,

v. No. 20

- 1472

C OMMISSIONER OF S OCIAL S ECURITY , Defendant

- Appellee

.

_________________________________________
FOR PLAINTIFF

- APPELLANT : M ARY E LLEN G ILL , Law Office s of Kenneth R. Hiller, PLLC, Amherst, NY

.
FOR DEFENDANT

- APPELLEE: J OHANNY S ANTANA (Ellen E. Sovern, on the brief ), Office of the General Counsel, Region II, Social Security Administration, for James P. Kennedy, Jr., United States2 Attorney for the Western District of New York, Buffalo, NY

. Appeal from a judgment of the United States District Court for the Western District
of New York ( Foschio
, M. J. ).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY OR DERED,
A DJUDGED, AND DECREED that the judgment entered on March 11 , 2020, is
AFFIRMED

. James Bernard Curry appeals from a judgment of the United States District Court for the Western District of New York (Foschio, M.J. ), which affirmed a final decision by the
Commissioner of Social S ecurity

. In a decision dated August 8, 2017, a n Administrative Law Judge (“ALJ”) acting on the Commissioner ’s behalf denied Curry ’s application for Supplemental Security Income (“SSI”) . The ALJ found that Curry , who has a back condition,
does not qualify as disabled under the Social Security Act (the “Act”)

. See 42 U.S.C. § 423(d)

. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal , and refer to them only as necessary to explain our d ecision to affirm

. In deciding an appeal from a denial of disability benefits, we conduct a plenary review
of the administrative record and ruling

. See Estrella v. Berryhill , 925 F.3d 90, 95 (2d Cir. 2019)

. We will not set aside the Commissioner’s disability determination unless we find that it is based

on either legal error or factual findings that are unsupported by substantial evidence

. The
“substantial evidence” standard “means

— and means only

— such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill
, 139 S. Ct. 1148, 1154 (2019)

. 1 “[I]t is . . . a very deferential standard of review

— even more so than the ‘clearly erroneous’ standard .” Brault v. Soc. Sec. Admin. , 683 F.3d 44 3, 448 (2d Cir. 2012) (per curiam)

. In particular, it requires our deference “ to the Commissioner’s resolution of conflicting evidence.” Cage v. Comm’r of Soc. Sec. , 692 F.3d 118, 122 (2d Cir. 2012).
On such review, we affirm the judgment of the District Court.

1 Unless otherwise noted, in quoting caselaw this Order omits all alterations, citations, footnotes, and internal quotation marks.3 In support of his SSI claim

— and central to this appeal

— Curry submitted a two

- page
M edical S ource S tatement (the “Statement”) dated May 2, 2017

. The Statement was prepared by Dr. David Cywinski, an orthopedist who provided medical treatment to Curry on a sporadic
basis between October 2007 and the date of the Statement

. As of May 2, 2017, Dr. Cywinski had last seen Curry over six months earlier. In the S tatement , Dr. Cywinski opined that Curry could not engage in full

- time competitive employment on a sustained basis. R. 521. 2
Dr. Cywinski further gave his view (through a checkbox form ) that if Curry were to work on
a full

- time basis, he would be “‘off

- task’ or otherwise less productive ” for more than thirty percent of the workday or workweek

. Id. In the form, Dr. Cywinski indicated that his general opinion was based on his specific recommendation that Curry engage in “no heavy carrying/lifting, no bending, stooping, [word s illegible ] sit to stand,” and symptoms describe d as “pain” and “discomfort into R[ight] leg.” Id. Dr. Cywinski reported that as of that writing
, Curry could sit only for “about two hours” in an eight

- hour work ing day (with normal breaks)
and could “ stand /walk” only for “about four hours” in total “since at least December 2014

. ”
Id. 522. He “referred [Curry for] spine surgery.” Id. At the same time, he noted that Curry “should not be absent [from work] if restriction [ s ] were met.” Id.
The ALJ considered Dr. Cywinski’s op inion in his review of Curry’s application for disability benefits for the period from December 2014 through August 2017 (the “relevant period”) . In the ALJ’s assessment of Curry’s residual functional capacity (“RFC”), the A LJ assigned only partial weight to Dr. Cywinski’s opinion and c oncluded that Curry has the RFC to perform certain “sedentary work . . . with additional exertional and postural limitations” as prescribed by Dr. Cywinski
, and that “there are jobs that exist in significant numbers in the national economy that [Curry] can perform.” Special App’x 11

- 12,
15

. Thus, the ALJ found that during the relevant period Curry was not disabled under the Act.

2 “ R

. ” refers to pages of the certified administrative record filed in the District Court

.4 On appeal, Curry argues primarily that the ALJ did not give Dr

. Cywinski’s opinion the weight it was due by law

. 3 In reviewing such a challenge, we consider whether the ALJ properly applied the two

- step framework articulated in Burgess v. Astrue , 537 F.3d 117, 127

- 29 (2d Cir. 2008) . Under Burgess, the ALJ must (1) decide whether a trea ting physician’s medical opinion
merits “controlling weight” and, (2) if it does not
, then “determine how much weight, if any, to give it” based on certain factors such as length of treatment and type of health care provider,
as we discuss in detail below

. Estrella , 925 F.3d at 95

- 96 ; see Burgess , 537 F.3d at 129

. At both steps, an ALJ must provide “good reasons” for its decision. Estrella , 925 F

. 3d at 96.
Reviewing the ALJ’s step one decision, we conclude that the ALJ did not err by declining to assign controlling weight to Dr. Cywinski ’s opinion. Under the “treating physician rule,” Dr

. Cywinski’s opinion regarding the “nature and severity” of Curry’s impairment is entitled to controlling weight only “so long as it is well

- supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the case record.” Burgess , 537 F.3d at 128 ; see also 20 C.F.R. § 416.927(c)(2) ;

see generally Biestek , 139 S. Ct. at 1157 ( instructing that “determining the substantiality of
evidence” requires a “case

- by

- case” inquiry). In Curry’s case, the ALJ explained that his
decision to assign less than controlling weight to Dr. Cywinski’s statement rested on substantial gaps in Curry’s treatment by Dr. Cywinski over the relevant period; evidence that the pain caused by Curry’s alleged impairment responded to treatment ; Curry’s own statements
and record of independent activities ; and treatment notes by Dr. Cywinski and others.
C onsidered together , as the ALJ found, these observations undercut Dr. Cywinski’s May 2017
summary statement. See 20 C.F.R. § 416.945(a). We therefore conclude that substantial

3 Curry also argues that the ALJ committed reversible error by basing its RFC determination on its own lay opinion rather than on record medical evidence. We reject this argument. An RFC finding is administrative in nature, not medical, and its determination is within the province of the ALJ, as the Commissioner’s regulations make clear. 20 C.F.R. § 404.1527(d)(2). The ALJ did not draw medical conclusions; instead, and pursuant to his statutory authority
, the ALJ considered the medical and other evidence in t he record in its totality to reach a n RFC determination. See , e.g. , 20 C.F.R. § § 416.927(c)(3), 416.945(a) ; see also id. § 404.1545 (a)(3) (“ We will consider any statements about what you can still do that have been provided by medical sources, whether or n ot they are based on formal medical examinations. ”).5 evidence supports the ALJ’s finding that Dr. Cywinski’s opinion is not entitled to controlling weight

. Looking next at how much weight Dr

. Cywinski’s opinion merited, a t step two of the Burgess analysis an “ALJ must consider, inter alia , the length of the treatment relationship and the frequency of examination; the nature and extent of the treatment relationship; the relevant
evidence . . . , particularly medical signs and laboratory findings, supporting the opinion; the consistency of the opinion with the record as a whole; and whether the physician is a special ist in the area covering the particular medical issues .” Burgess , 537 F.3d at 129 ; see also 20 C.F.R. § 404.1527(c)

. W e identify no error in the ALJ’s analysis of these factors and determin ation of
the weight to afford to Dr. Cywinski’s opinion.
Again, t he ALJ provided good reasons for his decision to give Dr. Cywinski’s opinion partial weight

. In a satisfactory functional application of the Burgess factors, the ALJ considered the fact that Dr. Cywinski is an orthopedic specialist
, which favor ed g iving his view some weight. The ALJ also consider ed the length, nature, and extent of the treatment relationship between Curry and Dr. Cywinski : although Dr. C ywinski had beg u n seeing Curry in October
2007 , the record as a whole revealed “large gaps in [ Cu rry’s ] orthopedic treatmen t

. ” Special App’x 15. P articularly
, in the six months before Dr. C ywinski rendered the May 2017 opinion
that became central here, Curry had not consulted with Dr. C ywinski at all
, again undercutting
the weight due that opinion. Id.
The ALJ also considered the amount and quality of evidence supporting Dr. Cywinski’s May 2017 opinion and whether th e opinion was consistent with the relevant record evidence

. In affording reduced weight to the opinion, the ALJ cit ed va rious treatment records that undermined Dr. Cywinski’s statement

. Id. 14 (citing the administrative record ). For example,
the evidence that the ALJ identified as inconsistent shows that in October 2016, Dr. Cywinski considered Curry to be “doing well enough at this time to do no thing further ” and that Curry
himself then informed Dr. Cywinski that “he is at the point now where he wants nothing
further done .” R. 429. This evidence cannot easily be squared with Dr. Cywinski ’s May 2017 opinion that Curry’s impairments had been consistent ly severe since “at least December
2014.” Id. 522. In addition, the ALJ focused on the observation that the medical record6 “ reflect [ed] that overall, [Curry] had full muscle strength of his lower extremities and negative

str aight leg raising

- tests , ” Special App’x 14
, a finding that t he ALJ reasonably found in tension
with the May 2017 assessment. Accordingly, we are satisfied that the ALJ adequately supported
his step

- two conclusion

. Finally, w e deny Curry’s request for further development of the administrative record
because he has failed to show that the record is not complete. See Rosa v. Callahan , 168 F.3d 72, 79 n.5 (2d Cir. 1999). B ecause we sustain the ALJ’s determination that Curry was n ot disabled during the relevant period, we reject as moot Curry’s request for a remand for
calculation and payment of benefits

.
* * *

We have considered Curry’s remaining arguments and find in them no basis for reversal. For the foregoing reasons, the judgment of the D istrict C ourt is AFFIRMED

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