1

10-1841-cv

Bavaro 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 SUMMARY 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

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 14th 4 day of March, two thousand eleven.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 PIERRE N. LEVAL,

9 REENA RAGGI,

10 Circuit Judges.

11

12

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14 BARBARA BAVARO, 

15

16 Plaintiff-Appellant,

17

18 -v.- 10-1841-cv

19

20 MICHAEL J. ASTRUE, Commissioner of

21 Social Security, 

22

23 Defendant-Appellee.

24

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26

27 FOR APPELLANT: DAVID J. SEEGER, Buffalo, NY.

28
2

1 FOR APPELLEE: ANDREEA LECHLEITNER, Special Assistant

2 United States Attorney (Stephen P. Conte,

3 Regional Chief Counsel, Social Security

4 Administration, of counsel), for William

5 J. Hochul, Jr., United States Attorney

6 for the Western District of New York,

7 Buffalo, NY. 

8

9 Appeal from a judgment of the United States District

10 Court for the Western District of New York (Telesca, J.).

11

12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13 AND DECREED that the judgment of the District Court be

14 AFFIRMED. 

15

16 Plaintiff-Appellant Barbara Bavaro appeals from the

17 judgment on the pleadings entered by the United States

18 District Court for the Western District of New York

19 (Telesca, J.), affirming the Commissioner’s denial of her

20 claim for Social Security disability benefits. We assume

21 the parties’ familiarity with the underlying facts, the

22 procedural history, and the issues presented for review.

23

24 [1] Bavaro argues that the ten-pound lifting restriction

25 recommended by her treating physician, Dr. Geraci, should

26 have been controlling for the ALJ’s disability

27 determination. 

28

29 “An ALJ who refuses to accord controlling weight to the

30 medical opinion of a treating physician must consider

31 various ‘factors’ to determine how much weight to give to

32 the opinion.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d

33 Cir. 2004) (per curiam); see 20 C.F.R. § 404.1527(d)(2). 

34 The ALJ must also “give good reasons in [the] notice of

35 determination or decision for the weight” accorded to the

36 treating physician’s opinion. Id. 

37

38 As to Dr. Geraci’s opinion, the ALJ failed to

39 demonstrate consideration of the necessary factors and to

40 provide good reasons for discounting it. We can

41 nevertheless evaluate the treating physician’s opinion

42 ourselves through a searching review of the record. See

43 Halloran, 362 F.3d at 31-32. “While the opinions of a

44 treating physician deserve special respect, they need not be

45 given controlling weight where they are contradicted by

46 other substantial evidence in the record.” Veino v.
3

1 Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (internal

2 citations omitted). 

3

4 First, Dr. Geraci did not treat Bavaro during the most

5 relevant period. The amended onset date is April 2006, when

6 she was laid off; Dr. Geraci last saw her in 2005.

7

8 Second, Dr. Geraci’s assessment was contradicted by

9 functional assessments by: [a] Marzullo, Bavaro’s treating

10 physical therapist, who found that Bavaro’s “safe work

11 capacity” included level lifting and floor lifting eighteen

12 pounds; [b] Dr. Dina, who concluded that Bavaro had no

13 functional limitations; [c] De Freitas, who determined that

14 Bavaro could occasionally lift 20 pounds and frequently lift

15 ten pounds; [d] Dr. Cox, who from the beginning thought that

16 Bavaro had a good prognosis, and later noted that she

17 responded favorably to therapy; and [e] Higgins, who

18 concluded in two assessments years apart that Bavaro could

19 occasionally lift 20 to 25 pounds and frequently lift ten

20 pounds.

21

22 In any event, the restrictions themselves are of

23 questionable value. They were imposed nearly three-and-a24 half years prior to the alleged disability onset date,

25 without explanation regarding their particulars, and Bavaro

26 worked in the interval. Moreover, their source is

27 correspondence from Dr. Geraci to Bavaro’s employer, rather

28 than treatment notes or medical records.

29

30 Remand for agency reconsideration is unnecessary where,

31 as here, “application of the correct legal principles to the

32 record could lead [only to the same] conclusion.” Zabala v.

33 Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (brackets in

34 original). 

35

36 [2] The ALJ found that Bavaro was capable of performing

37 several jobs. Bavaro challenges each as unsuitable; the

38 Commissioner defends only the positions of photo counter

39 clerk and small products assembler. The Commissioner has

40 the burden in step five of the disability determination to

41 prove that the claimant is capable of working. Perez v.

42 Chater, 77 F.3d 41, 46 (2d Cir. 1996). The Commissioner

43 need show only one job existing in the national economy that

44 Bavaro can perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R.

45 § 404.1566(b).

46 At a minimum, substantial evidence supports the ALJ’s

47 finding that Bavaro can perform the photo counter clerk
4

1 position. We decline Bavaro’s invitation to take judicial

2 notice of the decline of the photofinishing industry and

3 deem the position infeasible for her. A vocational expert

4 testified to the existence of such jobs at the national and

5 regional level. The ALJ was entitled to credit that

6 testimony, see 20 C.F.R. § 404.1566(e), and we will not

7 disturb that finding based upon Bavaro’s conclusory

8 proclamations to the contrary. 

9

10 Bavaro also challenges the transferability of her

11 experience as a paint store clerk to the photo counter clerk

12 position, based upon the numbering scheme of the Department

13 of Labor’s “Dictionary of Occupational Titles” (DOT)

14 listings. The argument ignores the critical metric for each

15 job: the skill level. Because the DOT lists the photo

16 counter clerk position as unskilled, see Social Security

17 Ruling 00-4p, 2000 SSR LEXIS 8; Certified Administrative

18 Record at 201, it is viable for Ms. Bavaro whether or not

19 any of her skills from her paint store position are

20 transferable. See Social Security Ruling 82-41, 1982 SSR

21 LEXIS 34 (“[A] finding of ‘not disabled’ may be based on the

22 ability to do unskilled work.”). 

23

24 [3] Bavaro claims that a disability finding is warranted

25 under the Medical-Vocational Guidelines (“the Grids”). See

26 20 C.F.R. pt. 404, subpt. P, app. 2. The argument rests on

27 her “treating physician” argument, because it hinges upon

28 Dr. Geraci’s ten-pound lifting restriction controlling the

29 analysis (which would trigger application of the sedentary

30 work Grid, see 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.01

31 et seq.). As discussed, Dr. Geraci’s opinion is not

32 entitled to controlling weight; therefore, this argument is

33 without merit.

34

35 We have considered Bavaro’s remaining arguments on this

36 appeal and have found them to be without merit. For the

37 foregoing reasons, the judgment of the District Court is

38 hereby AFFIRMED. 

39 

40 FOR THE COURT:

41 CATHERINE O’HAGAN WOLFE, CLERK

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