13‐3396‐cv Cosnyka v. Colvin
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 21st day of August, two thousand fourteen.
PRESENT: RALPH K. WINTER, PIERRE N. LEVAL, DENNY CHIN, Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x
STEVEN R. COSNYKA, Plaintiff‐Appellant,
v. 13‐3396‐cv
CAROLYN W. COLVIN, Commissioner Of Social Security, Defendant‐Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x
FOR PLAINTIFF‐APPELLANT: Jaya A. Shurtliff, Stanley Law Offices, Syracuse, New York.
FOR DEFENDANT‐APPELLEE: Peter W. Jewett, Special Assistant U. S. Attorney; Stephen P. Conte, Regional Chief Counsel, Social Security Administration, for William J. Hochul, Jr., United States Attorney for the Western District of New York, New York, New York.
Appeal from the United States District Court for the Western District of
New York (Skretny, C.J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and the case is
REMANDED for further proceedings.
Plaintiff‐appellant Steven Cosnyka appeals from the judgment of the
district court entered July 8, 2013 affirming the Social Security Commissionerʹs denial of
his application for disability benefits. By decision and order entered July 3, 2013, the
district court granted the Commissionerʹs motion for judgment on the pleadings and
denied Cosnykaʹs motion for judgment on the pleadings. We assume the partiesʹ
familiarity with the underlying facts, the procedural history, and the issues on appeal.
When deciding an appeal from a denial of disability benefits, ʺ[w]e
conduct a plenary review of the administrative record, and our focus is on the
administrative ruling more than on the district courtʹs decision.ʺ Selian v. Astrue, 708
F.3d 409, 417 (2d Cir. 2013). Our review is limited to determining whether the
conclusions of the Administrative Law Judge (the ʺALJʺ) were supported by
ʺsubstantial evidence in the record and were based on a correct legal standard.ʺ
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). Substantial evidence ʺmeans such
-2- relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,ʺ Selian, 708 F.3d at 417, and ʺ[t]he substantial evidence standard means once
an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to
conclude otherwise.ʺ Brault v. Social Sec. Admin., Commʹr, 683 F.3d 443, 448 (2d Cir. 2012)
(internal quotation marks omitted) (emphasis in original).
Under the SSA, ʺdisabilityʺ means an ʺinability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of
not less than 12 months.ʺ 42 U.S.C. § 423(d)(1)(A). ʺThe impairment must be of ʹsuch
severity that [the claimant] is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.ʹʺ Shaw v. Chater, 221
F.3d 126, 131‐32 (2d Cir. 2000) (quoting 42 U.S.C. § 423(d)(2)(A)). ʺPursuant to
regulations promulgated by the Commissioner, a five‐step sequential evaluation
process is used to determine whether the claimant’s condition meets the Actʹs definition
of disability.ʺ Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (citing 20 C.F.R.
§ 404.1520).
[I]f the Commissioner determines (1) that the claimant is not working, (2) that he has a severe impairment, (3) that the impairment is not one that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do.
-3-
Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (internal quotation marks omitted).
Where, as here, a claimantʹs impairments are not per se disabling under
SSA regulations, the Commissioner must ascertain the claimantʹs residual functional
capacity (ʺRFCʺ). See 20 C.F.R. § 416.920(a)(4). ʺA claimantʹs RFC is ʹthe most [he] can
still do despite [his] limitations.ʹʺ Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per
curiam) (alteration in original) (quoting 20 C.F.R. § 416.945(a)(1)). The RFC is
considered at step four in determining whether the claimant can perform his past work
and at step five to determine if the claimant can perform other available work. See 20
C.F.R. § 416.920(e). The claimant bears the burden of proof as to the first four steps.
Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per curiam). At step five, the
Commissioner has the ʺlimited burdenʺ of ʺshow[ing] that there is work in the national
economy that the claimant can do.ʺ Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)
(per curiam).
The ALJ found that Cosnyka retained an RFC to ʺperform sedentary work
as defined in 20 CFR 416.967(a) . . . [and that] the claimant would be off task
approximately 10% of the workday, which the undersigned defines as 6 minutes out of
each hour.ʺ (App. 75). Relying upon the testimony of the vocational expert that being
off‐task six minutes out of every hour would not prevent Cosnyka from holding a job,
the ALJ concluded that Cosnyka was not disabled under the SSA.
-4- On appeal, Cosnyka argues that the ALJ: (a) failed to give Cosnykaʹs
treating physicianʹs opinion controlling weight; (b) relied on an unsupported RFC
finding to interpret the vocational expertʹs testimony; and (c) improperly assessed
Cosnykaʹs credibility.
A. The Treating Physicianʹs Opinion
Free access — add to your briefcase to read the full text and ask questions with AI
13‐3396‐cv Cosnyka v. Colvin
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 21st day of August, two thousand fourteen.
PRESENT: RALPH K. WINTER, PIERRE N. LEVAL, DENNY CHIN, Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x
STEVEN R. COSNYKA, Plaintiff‐Appellant,
v. 13‐3396‐cv
CAROLYN W. COLVIN, Commissioner Of Social Security, Defendant‐Appellee.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x
FOR PLAINTIFF‐APPELLANT: Jaya A. Shurtliff, Stanley Law Offices, Syracuse, New York.
FOR DEFENDANT‐APPELLEE: Peter W. Jewett, Special Assistant U. S. Attorney; Stephen P. Conte, Regional Chief Counsel, Social Security Administration, for William J. Hochul, Jr., United States Attorney for the Western District of New York, New York, New York.
Appeal from the United States District Court for the Western District of
New York (Skretny, C.J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and the case is
REMANDED for further proceedings.
Plaintiff‐appellant Steven Cosnyka appeals from the judgment of the
district court entered July 8, 2013 affirming the Social Security Commissionerʹs denial of
his application for disability benefits. By decision and order entered July 3, 2013, the
district court granted the Commissionerʹs motion for judgment on the pleadings and
denied Cosnykaʹs motion for judgment on the pleadings. We assume the partiesʹ
familiarity with the underlying facts, the procedural history, and the issues on appeal.
When deciding an appeal from a denial of disability benefits, ʺ[w]e
conduct a plenary review of the administrative record, and our focus is on the
administrative ruling more than on the district courtʹs decision.ʺ Selian v. Astrue, 708
F.3d 409, 417 (2d Cir. 2013). Our review is limited to determining whether the
conclusions of the Administrative Law Judge (the ʺALJʺ) were supported by
ʺsubstantial evidence in the record and were based on a correct legal standard.ʺ
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). Substantial evidence ʺmeans such
-2- relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,ʺ Selian, 708 F.3d at 417, and ʺ[t]he substantial evidence standard means once
an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to
conclude otherwise.ʺ Brault v. Social Sec. Admin., Commʹr, 683 F.3d 443, 448 (2d Cir. 2012)
(internal quotation marks omitted) (emphasis in original).
Under the SSA, ʺdisabilityʺ means an ʺinability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of
not less than 12 months.ʺ 42 U.S.C. § 423(d)(1)(A). ʺThe impairment must be of ʹsuch
severity that [the claimant] is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.ʹʺ Shaw v. Chater, 221
F.3d 126, 131‐32 (2d Cir. 2000) (quoting 42 U.S.C. § 423(d)(2)(A)). ʺPursuant to
regulations promulgated by the Commissioner, a five‐step sequential evaluation
process is used to determine whether the claimant’s condition meets the Actʹs definition
of disability.ʺ Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008) (citing 20 C.F.R.
§ 404.1520).
[I]f the Commissioner determines (1) that the claimant is not working, (2) that he has a severe impairment, (3) that the impairment is not one that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do.
-3-
Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (internal quotation marks omitted).
Where, as here, a claimantʹs impairments are not per se disabling under
SSA regulations, the Commissioner must ascertain the claimantʹs residual functional
capacity (ʺRFCʺ). See 20 C.F.R. § 416.920(a)(4). ʺA claimantʹs RFC is ʹthe most [he] can
still do despite [his] limitations.ʹʺ Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per
curiam) (alteration in original) (quoting 20 C.F.R. § 416.945(a)(1)). The RFC is
considered at step four in determining whether the claimant can perform his past work
and at step five to determine if the claimant can perform other available work. See 20
C.F.R. § 416.920(e). The claimant bears the burden of proof as to the first four steps.
Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per curiam). At step five, the
Commissioner has the ʺlimited burdenʺ of ʺshow[ing] that there is work in the national
economy that the claimant can do.ʺ Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)
(per curiam).
The ALJ found that Cosnyka retained an RFC to ʺperform sedentary work
as defined in 20 CFR 416.967(a) . . . [and that] the claimant would be off task
approximately 10% of the workday, which the undersigned defines as 6 minutes out of
each hour.ʺ (App. 75). Relying upon the testimony of the vocational expert that being
off‐task six minutes out of every hour would not prevent Cosnyka from holding a job,
the ALJ concluded that Cosnyka was not disabled under the SSA.
-4- On appeal, Cosnyka argues that the ALJ: (a) failed to give Cosnykaʹs
treating physicianʹs opinion controlling weight; (b) relied on an unsupported RFC
finding to interpret the vocational expertʹs testimony; and (c) improperly assessed
Cosnykaʹs credibility.
A. The Treating Physicianʹs Opinion
Cosnyka first argues that the ALJ erred in rejecting the opinion of Dr.
Calabrese, the treating physician, that Cosnyka was unable to maintain a regular work
schedule because of his back pain and moderately limited ability to walk, stand, and sit.
An ALJ must give ʺcontrolling weightʺ to a treating physicianʹs opinion on
the nature and severity of the claimantʹs impairment when the opinion is well‐
supported by medical findings and consistent with other substantial evidence. 20
C.F.R. § 416.927(c)(2); see Poupore, 566 F.3d at 307. Here, the ALJ declined to give
ʺcontrolling weightʺ to Dr. Calabreseʹs opinion because it was ʺnot fully supported by
the evidence.ʺ (Joint App. at 77; see, e.g., Joint App. at 42 (Cosnyka acknowledged he
could ride stationary bicycle, walk approximately half mile, and sit for three hours ʺif
[he] could shift aroundʺ)).
After reviewing the record, we conclude that the ALJʹs explanation for not
according Dr. Calabreseʹs opinion controlling weight was supported by substantial
evidence. First, Dr. Calabreseʹs ʺMedical Examination for Employability Assessment,
Disability Screening, and Alcoholism/Drug Addiction Determination,ʺ dated June 2,
-5- 2009, does not identify any clinical observations to support his conclusion.1 The report,
for example, indicates Cosynka had physical limitations that prevent him from
attending work, but it does not reference a particular medical finding that substantiates
this judgment. Second, Dr. Calabreseʹs opinion is inconsistent with other medical
evidence in the record. Physical examinations from late 2008 to January 2009 revealed a
decreased range of motion of Cosnykaʹs lumbar spine. These reports, however, also
noted full muscle strength and normal sensation, and included no mention of
significant trouble walking or sitting. In January 2009, Dr. Kelley, a consulting
physician, found that Cosnyka required comfort breaks only when bending or twisting
and when lifting, carrying, reaching, pushing, or pulling markedly heavy objects. Her
report noted no other obvious limitations. Accordingly, we find no error in the ALJʹs
failure to afford controlling weight to Dr. Calabreseʹs opinion.
B. The Vocational Expertʹs Testimony
Cosnyka next argues that the ALJʹs RFC finding and consequent
interpretation of the vocational expertʹs testimony was unsupported. We agree.
The ALJ determined that Cosnyka would be off‐task for ten percent of the
workday, based in part on the medical evidence detailed above. The determination that
this ʺoff‐taskʺ time translated to six minutes out of every hour, however, was not based
1 Although Cosnyka asserts that "[c]linical findings . . . support Dr. Calabrese's opinion" (Appellant's Br. at 12), Dr. Calabrese does not identify any such findings in his report.
-6- on the record but was the result of the ALJʹs own surmise. Dr. Kathleen Kelley, an
orthopedic examiner, reported that Cosnyka would require ʺregular comfort breaks,ʺ
but did not indicate the length of those breaks. (App. 269). Cosnyka testified that he
can sit for ʺ[m]aybe up to threeʺ hours if he can shift around in his seat, and that he
would need more frequent breaks after that. (App. 42). Cosnyka further testified that it
would take him 15 or 20 minutes to walk off his pain. There is no evidence in the
record to the effect that Cosnyka would be able to perform sedentary work if he could
take a six‐minute break every hour, rather than some other duration and frequency
amounting to ten percent of the workday. Indeed, there is evidence in the record to the
contrary, as Cosnyka testified that he would need a 15‐20 minute break. Accordingly,
we find that there was no basis for the ALJ to incorporate this ʺsix minutes per hourʺ
formulation into the RFC finding.
Moreover, the vocational expertʹs opinion that there were jobs that
Cosnyka could perform was based upon hypothetical questions involving the ALJʹs six‐
minutes per hour formulation. Indeed, the vocational expertʹs opinion on whether there
were jobs that Cosnyka could perform varied depending on how the off‐task time was
defined. For example, while the vocational expert testified that being off‐task ʺsix
minutes [per hour] is not going to . . . make or break an individual inʺ certain jobs, he
also explained that being off‐task for longer periods at a time would ʺbegin to play
negatively upon a personʹs ability to remain employed.ʺ (App. 65‐66). The record is
-7- unclear as to the length of individual breaks Cosnyka would need, and it is unclear as to
the availability of jobs that could accommodate whatever breaks he needed.
Because there is no substantial evidence for the ALJʹs six‐minutes per hour
formulation, and this formulation was crucial to the vocational expertʹs conclusion that
there were jobs Cosnyka could perform, we cannot uphold the ALJʹs decision to reject
Cosnykaʹs claim for benefits. Further factfinding would ʺplainly help to assure the
proper dispositionʺ of Cosnykaʹs claim. Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999).
C. The ALJʹs Credibility Assessment
In light of the need for further factfinding, we do not reach appellantʹs
remaining argument that the ALJ improperly rejected his subjective complaints of pain.
CONCLUSION
For the reasons stated above, we VACATE the judgment of the district
court and REMAND with instructions to remand the matter to the Commissioner so
that she can further develop the evidence to make an RFC finding and determine
whether there are jobs in the economy Cosnyka can perform.
FOR THE COURT: Catherine OʹHagan Wolfe, Clerk
-8-