Opinion
18-3436-cv
10-09-2020
VOLKAN YUCEKUS, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
Appearing for Appellant: Volkan Yucekus, pro se, Sunnyside, NY. Appearing for Appellee: Varuni Nelson, Arthur Swerdloff, Matthew Silverman, Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney, Eastern District of New York, Brooklyn, NY.
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 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 9th day of October two thousand twenty. Present: ROSEMARY S. POOLER, RAYMOND J. LOHIER, JR., WILLIAM J. NARDINI, Circuit Judges. Appearing for Appellant: Volkan Yucekus, pro se, Sunnyside, NY. Appearing for Appellee: Varuni Nelson, Arthur Swerdloff, Matthew Silverman, Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney, Eastern District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Cogan, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Volkan Yucekus, proceeding pro se, sought review of a final determination by the Commissioner of Social Security ("Commissioner") denying his application for supplemental security income ("SSI"). He appeals the district court's grant of judgment on the pleadings to the Commissioner. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and specification of issues for review.
We review de novo a district court's grant of judgment on the pleadings. See Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003). When the district court upholds the Commissioner's benefits determination, 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." Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) (internal citations and quotation marks omitted). Under the substantial evidence standard, "once an ALJ finds facts, [this Court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks and emphasis omitted). We apply the version of the social security regulations and rulings in effect at the time of the ALJ's decision. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988).
On appeal, Yucekus challenges the ALJ's residual functional capacity ("RFC") determination, arguing that the record—and additional evidence not yet in the record—established more extensive limitations than the ALJ and district court found. The ALJ found that Yucekus had the RFC to do sedentary work with the additional restrictions that he could not lift, carry, push, or pull with the right side, and could only occasionally reach overhead with his right arm. This finding is supported by substantial evidence.
First, given the sparse references to seizure disorder and bilateral lymph edema in the record, in addition to Yucekus's failure to mention them at the hearing, the ALJ properly determined that those conditions imposed only a minimal limitation on his RFC. See Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) ("The Secretary is entitled to rely not only on what the record says, but also on what it does not say."). Likewise, the few treatment notes that discuss Yucekus's anxiety and depressive disorders also show that Yucekus was taking medication for those conditions. See Alston v. Sullivan, 904 F.2d 122, 127 (2d Cir. 1990) (considering the fact that a claimant's conditions were controlled with medication in support of an ALJ's determination that the claimant was not disabled). Yucekus also testified that the anxiety and depressive disorders did not prevent him from socializing with his friends or conducting daily activities, such as grocery shopping, reading, and watching TV.
Second, the ALJ reasonably determined that Lyme disease, malabsorption syndrome, and pernicious anemia were not disabling conditions in this case. Yucekus claims that those conditions caused him to experience weight loss and fatigue. He was receiving treatment for fatigue, but fatigue is mentioned only once in the forty-two treatment notes he submitted from his primary care provider. Medical records also belie Yucekus's assertions that he continued to suffer from severe weight loss: Yucekus reported that his weight was 155 pounds when he filed his SSI application in June 2014, and the July 2014 report by Dr. Graber notes that his weight was 174 pounds. Additionally, Yucekus testified that his body started absorbing food in 2013 or 2014 and that he no longer experienced any other symptoms of Lyme disease since beginning his recovery in 2009. The ALJ did not err in considering his statement to a Fedcap evaluator that his Lyme disease had been "totally cured," which was consistent with the other records related to his Lyme disease.
Third, substantial evidence also supported the ALJ's determination that Yucekus's shoulder pain was not severe enough to preclude the RFC finding. The ALJ properly considered Yucekus's testimony regarding pain in arriving at this determination. "When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account, but is not required to accept the claimant's subjective complaints without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (internal citations omitted). Here, Yucekus testified that, with medication, the pain was manageable and that he did not regularly take his pain medication. See Dumas, 712 F.2d at 1553 (stating that "a remediable impairment is not disabling"). Additionally, Yucekus testified that he can perform basic daily tasks, such as dressing himself and grocery shopping. See Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980) (claimant's ability to perform daily activities like cooking and shopping supported ALJ's determination that she could perform sedentary work despite pain). Contrary to Yucekus's argument on appeal, neither the 2013 MRI nor Dr. O'Connor's report reflects that Yucekus's shoulder pain was severe or disabling. Yucekus's argument that the physical evaluation performed for the Fedcap report was too cursory or superficial to be probative of his limitations was not raised before the ALJ and, in any event, is belied by the length and thoroughness of the report.
The ALJ did not err in giving limited weight to the opinions of certain physicians that Yucekus could not work or was temporarily disabled, as those opinions were unsupported by medical evidence and contradicted by the rest of the evidentiary record. See 20 C.F.R. § 416.927(d) (reserving issue of whether the applicant is disabled to the Commissioner); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("When other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed controlling."). The ALJ also properly gave limited weight to Physician Assistant ("P.A.") Rivera's medical source statement. Because the statement was written by a P.A.., and was therefore not an acceptable medical source under the then-applicable 20 C.F.R. Section 416.913, it was not entitled to controlling weight or the same degree of deference as a treating physician under Social Security Ruling 06-03P. See Social Security Ruling 06-03P, 2006 WL 2329939 (SSA Aug. 9, 2006) (holding that only "acceptable medical sources" can be considered treating sources entitled to controlling weight); 20 C.F.R. § 416.927(c)(2) (affording greater deference to the opinions of treating physicians, which are acceptable medical sources). Moreover, an ALJ must assign weight to a non-controlling medical opinion based on the following factors: (1) the frequency, length, nature, and extent of treatment; (2) the evidence in support of the opinion; (3) the consistency of the opinion with the record; (4) the specialty of the physician; and (5) any other factors which may support or contradict the opinion. 20 C.F.R. Section 416.927(c); Social Security Ruling 06-03P, 2006 WL 2329939 at *3-5.Here, the ALJ properly gave P.A. Rivera's medical source statement limited weight after noting the lack of other corroborating medical records and inconsistencies between that statement and Yucekus's testimony regarding his physical capacity. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (reasoning that ALJ properly gave limited weight to treating physician's report where the "key medical opinions [in that report] . . . were not particularly informative and were not consistent with" other evidence in the record). Although the ALJ erroneously described the statement as claiming that Yucekus visited Dr. Ramirez's office three or more times per month, the other considerations provide ample support for the ALJ's decision to afford the statement limited weight.
The ALJ treated the P.A.'s opinion as the treating physician's, but still found it insufficient. The district court afforded the proper, limited weight due to such opinions under the regulations then in effect.
On appeal, Yucekus asserts that he has medical records from other medical providers and specialists that were not considered by the ALJ. However, Yucekus has not produced any such records, except for Dr. Avedissian's 2018 statement, which lists various medical conditions and a list of prescriptions filled between June and July 2018. While a district court can consider new evidence when reviewing an ALJ decision, remand is warranted only upon a showing that the evidence is new and material, and that there is good cause for failure to timely submit it. See 42 U.S.C. § 405(g); Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) ("New evidence is material if it is both (1) relevant to the claimant's condition during the time period for which benefits were denied and (2) probative." (internal quotation marks omitted)); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (new evidence must not be cumulative of the record, and claimant must show "good cause for [his] failure to present the evidence earlier"). Yucekus has not made a showing of good cause or materiality. The prescriptions significantly postdate the period considered by the ALJ, and Dr. Avedissian's statement is a cursory list of conditions, without any additional information from which a factfinder could determine the extent to which these conditions limit Yucekus's ability to work. Although Yucekus claims there are additional records that should have been considered, he has not proffered such evidence and has not explained why he could not have obtained and presented such evidence to the ALJ. See Tirado, 842 F.2d at 597.
We express no view on whether these additional records might be material to a benefits claim for a subsequent period.
Finally, to the extent that Yucekus argues that the ALJ failed to fulfill her duty to develop the medical record, this argument is without merit. "[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history even when the claimant is represented by counsel[.]" Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (internal quotation marks omitted). Here, however, there were no "clear gaps in the administrative record." Id. At the hearing before the ALJ, Yucekus's counsel represented that the record lacked only documents from LIC Medical Center, and he submitted those documents before the ALJ closed the record.
We have considered all of Yucekus's remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk