1 10-1841-cv Bavaro v. Astrue



### 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 14 th** **day of March, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **PIERRE N. LEVAL,** 8 **REENA RAGGI,** 9 **Circuit Judges**

**.** 10 11 12 - - - - - - - - - - - - - - - - - - - -X 13 **BARBARA BAVARO,** 14 15 **Plaintiff-Appellant ,**  16 17 **-v.- 10-1841-cv** 18 19 **MICHAEL J. ASTRUE, Commissioner of** 20 **Social Security,** 21 22 **Defendant-Appellee**

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- - - - - - - - - - - - - - - - - - - -X 25 26 **FOR APPELLANT:** DAVID J. SEEGER, Buffalo, NY. 27 282 **FOR APPELLEE:** ANDREEA LECHLEITNER, Special Assistant 1 United States Attorney (Stephen P. Conte, 2 Regional Chief Counsel, Social Security 3 Administration, of counsel ), for William 4 J. Hochul, Jr., United States Attorney 5 for the Western District of New York, 6 Buffalo, NY. 7 8 Appeal from a judgment of the United States District 9 Court for the Western District of New York (Telesca, J. ). 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12 **AND DECREED**that the judgment of the District Court be 13
**AFFIRMED**

. 14 15 Plaintiff-Appellant Barbara Bavaro appeals from the 16 judgment on the pleadings entered by the United States 17 District Court for the Western District of New York 18 (Telesca, J. ) , affirming the Commissioner’s denial of her 19 claim for Social Security disability benefits. We assume 20 the parties’ familiarity with the underlying facts, the 21 procedural history, and the issues presented for review. 22 23 **[1]** Bavaro argues that the ten-pound lifting restriction 24 recommended by her treating physician, Dr. Geraci, should 25 have been controlling for the ALJ’s disability 26 determination. 27 28 “An ALJ who refuses to accord controlling weight to the 29 medical opinion of a treating physician must consider 30 various ‘factors’ to determine how much weight to give to 31 the opinion.” Halloran v. Barnhart , 362 F.3d 28, 32 (2d 32 Cir. 2004) (per curiam); see 20 C.F.R. § 404.1527(d)(2). 33 The ALJ must also “give good reasons in [the] notice of 34 determination or decision for the weight” accorded to the 35 treating physician’s opinion. Id. 36 37 As to Dr. Geraci’s opinion, the ALJ failed to 38 demonstrate consideration of the necessary factors and to 39 provide good reasons for discounting it. We can 40 nevertheless evaluate the treating physician’s opinion 41 ourselves through a searching review of the record. See 42 Halloran , 362 F.3d at 31-32. “While the opinions of a 43 treating physician deserve special respect, they need not be 44 given controlling weight where they are contradicted by 45 other substantial evidence in the record.” Veino v. 463 Barnhart , 312 F.3d 578, 588 (2d Cir. 2002) (internal 1 citations omitted). 2 3 First, Dr. Geraci did not treat Bavaro during the most 4 relevant period. The amended onset date is April 2006, when 5 she was laid off; Dr. Geraci last saw her in 2005. 6 7 Second, Dr. Geraci’s assessment was contradicted by 8 functional assessments by: [a] Marzullo, Bavaro’s treating 9 physical therapist, who found that Bavaro’s “safe work 10 capacity” included level lifting and floor lifting eighteen 11 pounds; [b] Dr. Dina, who concluded that Bavaro had no 12 functional limitations; [c] De Freitas, who determined that 13 Bavaro could occasionally lift 20 pounds and frequently lift 14 ten pounds; [d] Dr. Cox, who from the beginning thought that 15 Bavaro had a good prognosis, and later noted that she 16 responded favorably to therapy; and [e] Higgins, who 17 concluded in two assessments years apart that Bavaro could 18 occasionally lift 20 to 25 pounds and frequently lift ten 19 pounds. 20 21 In any event, the restrictions themselves are of 22 questionable value. They were imposed nearly three-and-a23 half years prior to the alleged disability onset date, 24 without explanation regarding their particulars, and Bavaro 25 worked in the interval. Moreover, their source is 26 correspondence from Dr. Geraci to Bavaro’s employer, rather 27 than treatment notes or medical records. 28 29 Remand for agency reconsideration is unnecessary where, 30 as here, “application of the correct legal principles to the 31 record could lead [only to the same] conclusion.” Zabala v. 32 Astrue , 595 F.3d 402, 409 (2d Cir. 2010) (brackets in 33 original). 34 35 **[2]** The ALJ found that Bavaro was capable of performing 36 several jobs. Bavaro challenges each as unsuitable; the 37 Commissioner defends only the positions of photo counter 38 clerk and small products assembler. The Commissioner has 39 the burden in step five of the disability determination to 40 prove that the claimant is capable of working. Perez v. 41 Chater , 77 F.3d 41, 46 (2d Cir. 1996). The Commissioner 42 need show only one job existing in the national economy that 43 Bavaro can perform. See42 U.S.C. § 423(d)(2)(A); 20 C.F.R. 44 § 404.1566(b). 45 At a minimum, substantial evidence supports the ALJ’s 46 finding that Bavaro can perform the photo counter clerk 474 position. We decline Bavaro’s invitation to take judicial 1 notice of the decline of the photofinishing industry and 2 deem the position infeasible for her. A vocational expert 3 testified to the existence of such jobs at the national and 4 regional level. The ALJ was entitled to credit that 5 testimony, see20 C.F.R. § 404.1566(e), and we will not 6 disturb that finding based upon Bavaro’s conclusory 7 proclamations to the contrary. 8 9 Bavaro also challenges the transferability of her 10 experience as a paint store clerk to the photo counter clerk 11 position, based upon the numbering scheme of the Department 12 of Labor’s “Dictionary of Occupational Titles” (DOT) 13 listings. The argument ignores the critical metric for each 14 job: the skill level. Because the DOT lists the photo 15 counter clerk position as unskilled, see Social Security 16 Ruling 00-4p, 2000 SSR LEXIS 8; Certified Administrative 17 Record at 201, it is viable for Ms. Bavaro whether or not 18 any of her skills from her paint store position are 19 transferable. SeeSocial Security Ruling 82-41, 1982 SSR 20 LEXIS 34 (“[A] finding of ‘not disabled’ may be based on the 21 ability to do unskilled work.”). 22 23 **[3]** Bavaro claims that a disability finding is warranted 24 under the Medical-Vocational Guidelines (“the Grids”). See 25 20 C.F.R. pt. 404, subpt. P, app. 2. The argument rests on 26 her “treating physician” argument, because it hinges upon 27 Dr. Geraci’s ten-pound lifting restriction controlling the 28 analysis (which would trigger application of the sedentary 29 work Grid, see20 C.F.R. pt. 404, subpt. P, app. 2, § 201.01 30 et seq. ). As discussed, Dr. Geraci’s opinion is not 31 entitled to controlling weight; therefore, this argument is 32 without merit. 33 34 We have considered Bavaro’s remaining arguments on this 35 appeal and have found them to be without merit. For the 36 foregoing reasons, the judgment of the District Court is 37 hereby **AFFIRMED**

. 38 39 FOR THE COURT: 40 CATHERINE O’HAGAN WOLFE, CLERK 41 42