Porteus v. O'Malley

• Court: Court of Appeals for the Second Circuit
• Decided: May 15, 2024
• Docket: 23-969
• Status: Unpublished

Opinion

23-969 Porteus v. O’Malley

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 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 15th day of May, two thousand twenty-four.

PRESENT:

DENNIS JACOBS, ROBERT D. SACK, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

DAVID PORTEUS,

Plaintiff-Appellant,

v. No. 23-969

MARTIN O’MALLEY, Commissioner of Social Security,

Defendant-Appellee. ∗ _______________________________________

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Plaintiff-Appellant: PETER A. GORTON, Lachman & Gorton, Endicott, NY.

For Defendant-Appellee: NATASHA OELTJEN (Candace Brown Casey, Special Assistant United States Attorney, Charles J. Kawas, Acting Associate General Counsel, Social Security Administration, Baltimore, MD, on the brief), for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY.

Appeal from a judgment of the United States District Court for the Northern

District of New York (Miroslav Lovric, Magistrate Judge). 1

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the June 12, 2023 judgment of the district

court is AFFIRMED.

David Porteus appeals from a judgment affirming the denial of his

application for Supplemental Security Income (“SSI”) benefits under the Social

Security Act (the “Act”). The district court found that substantial evidence

supported the decision of the administrative law judge (the “ALJ”), who

concluded that Porteus was not disabled under the Act. Porteus timely appealed.

1 The parties consented to have the case heard by a magistrate judge pursuant to 28 U.S.C. § 636.

2 We assume the parties’ familiarity with the underlying facts, procedural history,

and issues on appeal.

“When deciding an appeal from a denial of disability benefits, we focus on

the administrative ruling rather than the district court’s opinion.” Kohler v.

Astrue, 546 F.3d 260, 264–65 (2d Cir. 2008) (internal quotation marks omitted).

We therefore must “conduct a plenary review of the administrative record to

determine if there is substantial evidence, considering the record as a whole, to

support the Commissioner’s decision and if the correct legal standards have been

applied.” Id. at 265 (internal quotation marks omitted). Under the substantial

evidence standard, we can reject the ALJ’s factual findings “only if a reasonable

factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm’r,

683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks omitted). Even “[i]f

evidence is susceptible to more than one rational interpretation, the

Commissioner’s conclusion must be upheld.” Schillo v. Kijakazi, 31 F.4th 64, 74

(2d Cir. 2022) (internal quotation marks omitted).

On appeal, Porteus raises three principal challenges to the ALJ’s

determination that his mental-health conditions did not constitute disabilities

3 within the meaning of the Act. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3). We

address each of these challenges in turn.

First, Porteus argues that the ALJ improperly evaluated the medical opinion

evidence by failing to explain and substantiate the persuasiveness of the opinions

of Dr. W. Amory Carr, a consultative examining psychologist, and Dr. E. Kamin,

a state agency medical consultant. At the outset, we note that no treating source

offered an opinion prior to the ALJ’s decision; as a result, the relevant opinions as

to Porteus’s mental functioning came from three medical consultants. 2 In any

event, the ALJ was only required to consider the submitted medical opinions

based on the five factors set forth in the regulations and to explain how the two

“most important” factors – supportability and consistency – applied to each

opinion. See 20 C.F.R. § 404.1520c(b)(2) (“[ALJs] may, but are not required to,

explain how [they] considered the [other] factors[.]”). Contrary to Porteus’s

assertion, the ALJ did just that, sufficiently articulating why he found Dr. Carr’s

opinion and Dr. Kamin’s assessment persuasive to the extent that they endorsed

2 Porteus does not argue on appeal that the ALJ erroneously failed to develop the record by not obtaining a medical source statement from a treating physician. Nor does he contest the ALJ’s determination that the opinion of the third medical consultant, Dr. K. Lieber-Diaz – who concluded that Porteus had only non-severe mental impairments – was unpersuasive.

4 mild to moderate limitations in his ability to perform work-related mental

activities. See Dist. Ct. Doc. No. 8 (“SSA Record”) at 27–28.

Specifically, the ALJ explained that Dr. Carr’s conclusions as to mild and

moderate limitations, or no limitations at all, were “supported by the detailed

findings from [Porteus’s] mental status examination,” which the ALJ summarized

in his decision. SSA Record at 27; see 20 C.F.R. § 416.920c(c)(1) (defining

supportability in terms of “the objective medical evidence and supporting

explanations presented”). The ALJ likewise explained that Dr. Kamin’s

assessment was “supported by a detailed narrative rationale, which cite[d]

supporting mental status examination findings and other evidence from the

record.” SSA Record at 27. This accurately described Dr. Kamin’s report, which

referred to Dr. Carr’s examination and representative treatment notes and

included details regarding Porteus’s history of anxiety, depression, and suicidal

ideation, as well as his current treatment and his daily activities. As to

consistency, the ALJ noted that both Dr. Carr’s and Dr. Kamin’s opinions were

“consistent with the record as a whole, including the evidence described above

regarding the claimant’s activities of daily living.” Id. at 27–28. That record as

a whole, as the ALJ set forth earlier in his decision, included Porteus’s mental

5 health treatment notes during the relevant period – including records that post-

dated Dr. Carr’s and Dr. Kamin’s opinions – Porteus’s hearing testimony, and

evidence of his daily activities. See id. at 24–27. Finally, the ALJ adequately

explained that he found unpersuasive Dr. Carr’s assessment of certain marked

work-related limitations, concluding that such limitations were unsupported by

and inconsistent with Dr. Carr’s own mental status examination findings,

Porteus’s response to treatment, and relevant aspects of his daily activities.

Porteus contends that the ALJ’s assessment of the opinions was conclusory,

and that evidence post-dating the opinions rendered them stale and inconsistent

with the record. We disagree. The ALJ explicitly recognized that Porteus’s

mental health symptoms “waxed and waned in severity” throughout the relevant

period, and that after Dr. Carr and Dr. Kamin prepared their opinions, Porteus

had a “temporary worsening” in symptoms that resulted in a ten-day

hospitalization for suicidal ideation in August 2020. See id. at 26. The ALJ also

considered, however, that Porteus responded positively to treatment during and

after his hospitalization and that subsequent outpatient records indicated

improvement and stability. See id. at 25–27. While Porteus may disagree with

the ALJ’s assessment of the treatment notes and their consistency with the medical

6 opinions, the ALJ was entitled “to weigh the conflicting evidence in the record”

and resolve any such conflicts. Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998); see

also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the

medical evidence are for the Commissioner to resolve.”). Nor did the ALJ err, as

Porteus suggests, by failing to explicitly repeat his prior examination of the record

as part of the persuasiveness analysis. See Brault, 683 F.3d at 448 (“An ALJ does

not have to state on the record every reason justifying a decision.”).

In short, the ALJ adequately explained the supportability and consistency

of each medical opinion in the record and found the limitations assessed by Dr.

Carr and Dr. Kamin to be persuasive in almost all respects. And the record before

the ALJ contained no other opinions assessing greater limitations than the ones set

forth in Dr. Carr’s and Dr. Kamin’s opinions. We therefore see no error in the

ALJ’s conclusions.

Second, Porteus contends that the ALJ failed to support his residual

functional capacity (“RFC”) finding with substantial evidence. In making the

RFC determination, the ALJ is “entitled to weigh all of the evidence available to

make an RFC finding that [is] consistent with the record as a whole.” Schillo, 31

F.4th at 78 (internal quotation marks omitted); see also id. (“[T]he ALJ’s RFC

7 conclusion need not perfectly match any single medical opinion in the record, so

long as it is supported by substantial evidence.”). In the end, the ALJ’s findings

need only “afford[] an adequate basis for meaningful judicial review, appl[y] the

proper legal standards, and [be] supported by substantial evidence.” Cichocki v.

Astrue, 729 F.3d 172, 177 (2d Cir. 2013).

Here, the ALJ concluded that, based on the medical opinions and other

evidence, Porteus could engage in a full range of work at all exertional levels, but

with a variety of mental limitations. In particular, the ALJ concluded that Porteus

could “understand, remember, and carry out only simple and routine tasks”;

“concentrate, persist, and maintain pace in a work setting to the extent necessary

to perform” such tasks; “interact no more than occasionally with supervisors, co-

workers, or the public”; and “appropriately adapt to ordinary changes in an

unskilled occupation that involves only simple and routine tasks.” SSA Record

at 25. Substantial evidence supports this RFC determination, and Porteus has not

demonstrated that a reasonable factfinder would have to assess any greater

limitations. See Schillo, 31 F.4th at 74.

Porteus nevertheless argues that the ALJ failed to account for limitations in

his ability to stay on task and attend work, as substantiated by the medical

8 opinions and other evidence. But the record does not compel such a finding.

For starters, Dr. Carr opined that Porteus had no pace or concentration-related

limitations, and only a mild-to-moderate limitation in sustaining an ordinary

routine and regular attendance at work. And while Dr. Kamin opined that

Porteus was moderately limited in his ability to work without interruption and at

a consistent pace without rest periods, she also concluded that Porteus was not

significantly limited in his ability to maintain attention and concentration for

extended periods, stay on schedule, and maintain regular attendance. We have

consistently held that moderate limitations in these and related mental functional

capacities do not prevent individuals from performing “unskilled work.” Zabala

v. Astrue, 595 F.3d 402, 405–06, 409–10 (2d Cir. 2010); see, e.g., Valdes-Ocasio v.

Kijakazi, No. 21-3152, 2023 WL 3573761, at *1 (2d Cir. May 22, 2023) (rejecting claim

that moderate limitations in concentration and attendance-related areas required

RFC limitations to staying on task or attendance).

Nor are we persuaded that the ALJ impermissibly “cherry-picked” from the

record and ignored evidence of Porteus’s conditions as they relate to his ability to

stay on task and maintain attendance. Cf. Estrella v. Berryhill, 925 F.3d 90, 97 (2d

Cir. 2019). The ALJ explicitly discussed, for example, evidence regarding the

9 frequency and nature of Porteus’s panic attacks, which Porteus described as

triggered by stressful situations. And more broadly, the ALJ examined the

treatment notes from the relevant period and reasonably concluded that they

“show[ed] a generally stable mental status” and that Porteus’s disorders “[could]

be managed with treatment.” SSA Record at 26; see id. at 25–28. To be sure, the

ALJ acknowledged that Porteus’s condition throughout this period was not

always stable and at one point worsened, culminating in a ten-day voluntary

hospitalization for suicidal ideation in August 2020. But the record reflects that

this worsening followed significant situational stressors – including problems

with his girlfriend and roommate and an impending eviction – and the ALJ

observed that Porteus’s conditions improved with treatment in the months that

followed. See Matta v. Astrue, 508 F. App’x 53, 57 (2d Cir. 2013) (substantial

evidence supported ALJ’s conclusion that claimant could maintain regular and

continuous work, where treatment notes showed claimant was “stable and

responded well to treatment,” notwithstanding two hospitalizations due to mental

conditions). While Porteus faults the ALJ for not citing and discussing each

treatment record in detail, the ALJ need not “discuss every piece of evidence

submitted,” and a “failure to cite specific evidence does not indicate that such

10 evidence was not considered.” Brault, 683 F.3d at 448 (internal quotation marks

omitted). 3 Substantial evidence supports the finding that Porteus would not be

off task or absent to any significant degree in an unskilled job with only simple

and routine tasks.

Contrary to Porteus’s assertions, the ALJ’s RFC determination also

adequately accounted for his workplace adaptation and social interaction

limitations. The ALJ acknowledged Porteus’s reported difficulty in handling

stress, including his testimony that he had a low stress threshold and that stress or

changes in schedule triggered his anxiety and other symptoms. While Porteus

testified that even routine situations could trigger stress, the ALJ considered

further evidence including: (1) examination findings noting Porteus’s fair insight

and judgment and coherent and goal-directed thoughts; (2) his ability to live

independently, maintain a relationship (with his girlfriend), and engage in

hobbies; and (3) his overall positive response to treatment. See Genier v. Astrue,

606 F.3d 46, 49 (2d Cir. 2010) (“[The ALJ] is not required to accept the claimant’s

3 Porteus also contends the ALJ erred by considering evidence of his routine daily activities because such evidence did not bear on his ability to perform work. But our prior decisions make clear that an ALJ may consider evidence regarding the claimant’s daily activities in weighing and evaluating the record to reach the RFC determination. See, e.g., Cichocki, 729 F.3d at 178; Schillo, 31 F.4th at 77 n.4.

11 [reports] without question; he may [instead] exercise discretion in weighing the

credibility of the claimant’s testimony in light of the other evidence in the

record.”). Moreover, Dr. Kamin, whose opinion the ALJ found to be fully

persuasive, concluded that Porteus had no significant adaptation limitations,

including in his ability to respond appropriately to changes in the work setting.

Substantial evidence supports the ALJ’s findings that Porteus was limited to only

simple and routine tasks in an unskilled job, with no more than ordinary changes

and only occasional interactions with supervisors, coworkers, and the public.

Similarly, the social interaction limitations found by the ALJ were supported by

Porteus’s own statements, Dr. Kamin’s and Dr. Carr’s opinions, and evidence of

Porteus’s ability to do daily activities in public.

Third, Porteus argues that the new evidence presented to the Appeals

Council – the opinion of his therapist, licensed master social worker Diana Liz-

Reyes, who assessed significantly greater limitations than did Dr. Carr and Dr.

Kamin – renders the ALJ’s determination unsupported by substantial evidence.

We disagree. “When the Appeals Council denies review after considering new

evidence, [the court] simply review[s] the entire administrative record, which

includes the new evidence, and determine[s], as in every case, whether there is

12 substantial evidence to support the decision of the [Commissioner].” Perez v.

Chater, 77 F.3d 41, 46 (2d Cir. 1996); accord Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d

Cir. 2015).

We conclude that Ms. Liz-Reyes’s opinion “does not add so much as to make

the ALJ’s decision contrary to the weight of the evidence.” Rutkowski v. Astrue,

368 F. App’x 226, 229 (2d Cir. 2010). Devoid of any objective medical findings or

reference to treatment records, the opinion “does not explain [any] facts or

reasoning that led” to the limitations that Ms. Liz-Reyes assessed, see id. at 230, but

instead only lists Porteus’s diagnoses and medications (and their side effects).

Ms. Liz-Reyes’s assessment of moderate, marked, and extreme limitations in

work-related functions is also contradicted by evidence in the record, including

the opinions of Dr. Kamin and Dr. Carr, indicating that Porteus would have no

significant, or at most moderate, limitations in those same functions. We see no

reason to conclude that, even considering Ms. Liz-Reyes’s opinion, substantial

evidence does not support the ALJ’s decision. 4

4 Because we conclude that substantial evidence supports the RFC determination, “we necessarily reject [Porteus]’s vocational expert challenge.” Holler v. Saul, 852 F. App’x 584, 586 (2d Cir. 2021). 13 We have considered Porteus’s remaining arguments and find them without

merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court