15-3502 Snyder v. Colvin



### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 30 th** **day of June, two thousand sixteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **REENA RAGGI,** 7 **DENNY CHIN,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **CHASITY SNYDER,** 12 **Plaintiff-Appellant ,**  13 14 **-v.- 15-3502** 15 16 **CAROLYN COLVIN,** 17 **Commissioner of Social Security,** 18 **Defendant-Appellee**

**.** 19
- - - - - - - - - - - - - - - - - - - -X 20 21 **FOR APPELLANT:** MARK SCHNEIDER, Plattsburgh, New 22 York. 23 24 **FOR APPELLEES:** FERGUS KAISER, Special Assistant 25 U.S. Attorney (with Stephen P. 26 Conte, Regional Chief Counsel – 27 Region II Office of the General 28

1Counsel Social Security 1 Administration, on the brief), 2 for Richard S. Hartunian, United 3 States Attorney for the Northern 4 District of New York. 5 6 Appeal from a judgment of the United States District 7 Court for the Northern District of New York (Suddaby, C.J. ). 8 9 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 10 **AND DECREED**that the judgment of the district court be 11
**AFFIRMED**

. 12 13 Plaintiff Chasity Snyder appeals from the district 14 court’s affirmance of a decision of the Commissioner of 15 Social Security (“Commissioner”) denying her application for 16 Social Security disability benefits. We review the 17 administrative record de novo, and will uphold the 18 Commissioner’s decision if it is supported by substantial 19 evidence and the correct legal standards were applied. See 20 Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) 21 (“Substantial evidence . . . . means such relevant evidence 22 as a reasonable mind might accept as adequate to support a 23 conclusion.” (internal quotation marks omitted)); Zabala v. 24 Astrue , 595 F.3d 402, 408 (2d Cir. 2010). We assume the 25 parties’ familiarity with the underlying facts, the 26 procedural history, and the issues presented for review. 27 28 1. The plaintiff argues that the district court 29 applied an incorrect standard of review, but does not 30 support the argument with record evidence or citation to any 31 portion of the district court ruling. The standard of 32 review is “very deferential.” Brault v. Soc. Sec. Admin., 33 Comm’r , 683 F.3d 443, 448 (2d Cir. 2012). “Issues not 34 sufficiently argued in the briefs are considered waived and 35 normally will not be addressed on appeal.” City of Syracuse 36 v. Onondaga Cty. , 464 F.3d 297, 308 (2d Cir. 2006) (internal 37 quotation marks omitted). 38 39 2. The ALJ acknowledged that the plaintiff’s cervical 40 condition, obesity, and depression were impairments, but 41 found that they did not rise to the level of a disability. 42 The plaintiff argues that she was disabled by the 43 “combination” of her spinal disorders, mental impairments, 44 obesity, and other “exertional and non-exertional 45 limitations.” However, the ALJ considered her impairments 46 in combination, as well as separately. SeeRivers v. 47

2Astrue , 280 F. App’x 20, 23 (2d Cir. 2008) (summary order) 1 (rejecting allegations that the ALJ failed to consider 2 impairments in combination where record showed that each 3 ailment and its cumulative effects was considered). 4 5 3. Snyder argues that the ALJ gave too much weight to 6 the medical opinion of the consulting psychologist. The 7 opinion of a treating physician is not binding if it is 8 contradicted by substantial evidence, and a consulting 9 physician report may constitute such evidence. See Mongeur 10 v. Heckler , 722 F.2d 1033, 1039 (2d Cir. 1983). Here, the 11 consulting psychologist opinion was consistent with other 12 medical evidence and was supported by substantial evidence; 13 the ALJ therefore did not err in affording his opinion great 14 weight. 15 16 4. Snyder argues that the ALJ erred by not crediting 17 her testimony. The Commissioner is not obligated to credit 18 a claimant’s testimony about her limitations and symptoms, 19 but has discretion to evaluate the claimant’s credibility in 20 light of the evidence in the record. SeeGenier v. Astrue
, 21 606 F.3d 46, 50 (2d Cir. 2010). The ALJ determined that, 22 while Snyder’s medically determinable impairments could 23 reasonably be expected to cause the alleged symptoms, 24 Snyder’s statements concerning the intensity, persistence, 25 and limiting effects of these symptoms were not entirely 26 credible. The ALJ specifically analyzed Snyder’s claims of 27 neck pain, arm numbness, obesity, and depression; as to each 28 condition, the ALJ cited specific medical evidence in the 29 record and concluded that the alleged limitations were 30 without support. Accordingly, the ALJ sufficiently 31 explained the credibility determination and committed no 32

error. 33 34 5. Snyder argues that the ALJ erroneously relied upon 35 the lack of “formal mental health treatment” to deny her 36 appeal. The ALJ considered and discussed Snyder’s “history 37 of treatment for depression,” which included prescription 38 antidepressants from her primary care physician. The ALJ’s 39 credibility assessment observed that the plaintiff never 40 sought “formal mental health treatment” (such as counseling 41 or psychiatric care). Although an ALJ may find a plaintiff 42 less credible if she failed to seek medical treatment, an 43 ALJ is obligated to consider any explanation a plaintiff may 44 have for such failure, seeSSR 16-3p, 81 Fed. Reg. 14,166, 45 14,170-71 (Mar. 16, 2016), and here the ALJ did not consider 46

3any reasons why the plaintiff did not seek “formal mental 1 health treatment.” 2 3 Despite this error, the credibility determination was 4 supported by other substantial record evidence as discussed 5 above. Furthermore, the lack of formal mental health 6 treatment was just one of multiple factors considered in 7 assessing the plaintiff’s credibility, including that 8 Snyder’s allegations were unsupported by objective medical 9 evidence, and so any error was harmless. 10 11 6. Snyder argues that the Commissioner did not satisfy 12 her burden to show at Step 5 that she could not perform work 13 in the national economy. When the hypothetical posed to the 14 vocational expert is based on a residual functional capacity 15 finding that is supported by substantial evidence, the 16 hypothetical is proper and the ALJ is entitled to rely on 17 the vocational expert’s testimony. SeeDumas v. Schweiker
, 18 712 F.2d 1545, 1554 (2d Cir. 1983); see alsoSalmini v. 19 Comm’r of Soc. Sec. , 371 F. App’x 109, 114 (2d Cir. 2010) 20 (summary order). Here, the ALJ’s hypothetical to the 21 vocational expert closely paralleled the ALJ’s residual 22 functional capacity finding, which was supported by 23 substantial evidence. Accordingly, the plaintiff’s 24 challenge fails. 25 26 For the foregoing reasons, and finding no merit in the 27 plaintiff’s other arguments, we hereby **AFFIRM** the judgment 28 of the district court. 29 30 FOR THE COURT: 31 CATHERINE O’HAGAN WOLFE, CLERK 32 33

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