09-4088-cv Stanton v. Astrue

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A D O CUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 24 th day of March, two thousand ten. PRESENT: REENA RAGGI, PETER W. HALL, Circuit Judges, GREGORY W. CARMAN, Judge.* ----------------------------------------------------------------------------------- HOLLY STANTON, Plaintiff-Appellant, v. No. 09-4088-cv MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant-Appellee. ----------------------------------------------------------------------------------- APPEARING FOR APPELLANT: HOWARD D. OLINSKY, Olinsky & Shurtliff, Syracuse, New York. APPEARING FOR APPELLEE: M ICHELLE L. CHRIST, Special Assistant United States Attorney (Stephen P. Conte, Acting

* Judge Gregory W. Carman of the United States Court of International Trade, sitting by designation.

Regional Chief Counsel, Region II, Office of the General Counsel, Social Security Administration, of counsel), for Richard S. Hartunian, United States Attorney for the Northern District of New York, New York, New York.

Appeal from the United States District Court for the Northern District of New York (Lawrence E. Kahn, Judge; Victor E. Bianchini, Magistrate Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on July 7, 2009, is AFFIRMED.

Holly Stanton appeals from the district court’s affirmance of the Social Security Commissioner’s denial of disability insurance benefits. “We review the administrative record de novo to determine whether there is substantial evidence supporting the Commissioner’s decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (internal quotation marks and alteration omitted); see also 42 U.S.C. § 405(g) (making Commissioner’s factual findings conclusive if supported by substantial evidence). “Substantial evidence . . . means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotation marks omitted). In undertaking this review, we assume the parties’ familiarity with the facts and procedural history, which we reference only as necessary to explain our decision.

claimed impairment is October 5, 2004, she bore the burden of proving otherwise. See Clarification of Rules Involving Residual Functional Capacity Assessments, 68 Fed. Reg. 51,153, 51,154-55 (Aug. 26, 2003); see also Poupore v. Astrue, 566 F.3d at 306 (observing that even at step five, “the Commissioner need only show that there is work in the national economy that the claimant can do; he need not provide additional evidence of the claimant’s residual functional capacity”).

Stanton nevertheless faults the ALJ for failing to cite medical evidence to support his RFC determination and to provide the requisite narrative discussion of RFC. See Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). She further complains that the ALJ failed to follow the treating physician rule. See

20 C.F.R. § 404.1527(d)(2). We are not persuaded.

The record shows that the ALJ considered the medical opinions of treating physician Dr. Norman Lasda and consulting physician Dr. Kalyani Ganesh. Because Dr. Lasda’s opinion was unsupported by objective clinical evidence and contradicted by his own records, the examination report of Dr. Ganesh, the report of a state agency disability analyst, and Stanton’s own account of her range of activities, the ALJ did not err in declining to accord it controlling weight. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (observing that treating physician’s opinion “is not afforded controlling weight” where it is “not consistent with other substantial evidence in the record, such as the opinions of other medical experts”); cf. 20 C.F.R. § 404.1527(d)(2) (according controlling weight to treating physician’s opinion if “well-supported by medically acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with other substantial evidence in . . . case record”). Indeed, the noted contradictory evidence provides the requisite substantial support for the Commissioner’s RFC determination.