Opinion
21-1192
02-15-2022
Gary M. Glessing, Plaintiff-Appellant, v. Commissioner of Social Security, Defendant-Appellee.
FOR PLAINTIFF-APPELLANT: Gary M. Glessing, pro se, Staten Island, NY. FOR DEFENDANT-APPELLEE: Varuni Nelson, Arthur Swerdloff, Assistant U.S. Attorneys, for Jacquelyn M. Kasulis, Acting U.S. Attorney for the Eastern District of New York, Brooklyn, NY.
UNPUBLISHED OPINION
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 February, two thousand twenty-two.
Appeal from an April 14, 2021 judgment of the United States District Court for the Eastern District of New York (Cogan, J.).
FOR PLAINTIFF-APPELLANT: Gary M. Glessing, pro se, Staten Island, NY.
FOR DEFENDANT-APPELLEE: Varuni Nelson, Arthur Swerdloff, Assistant U.S. Attorneys, for Jacquelyn M. Kasulis, Acting U.S. Attorney for the Eastern District of New York, Brooklyn, NY.
PRESENT: MICHAEL H. PARK, WILLIAM J. NARDINI, MYRNA PÉREZ, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Gary M. Glessing, proceeding pro se, alleges that he has been disabled since June 14, 2006 due to several injuries to his left leg. Glessing applied for disability insurance benefits, but the Commissioner of Social Security (the "Commissioner") denied his application following a hearing before an administrative law judge (the "ALJ"), who concluded that Glessing was not disabled. Glessing sought review of the Commissioner's final determination in district court, which granted judgment on the pleadings to the Commissioner. Glessing appealed, challenging the ALJ's determinations about his residual functional capacity ("RFC") and the number of jobs in the national economy that Glessing can perform, both of which led the ALJ to conclude that he was not entitled to disability insurance benefits. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo a district court's judgment on the pleadings. Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003). When the judgment upholds a determination by the Commissioner, we conduct a de novo review of the administrative record "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 quotation marks omitted). Under the "very deferential" substantial evidence standard, "once an ALJ finds facts, we can reject those facts 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).
I. Residual Functional Capacity
First, Glessing challenges the ALJ's determination that his RFC is sedentary work with additional limitations. "RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (internal quotation marks omitted). The ALJ must consider "all of the relevant medical and other evidence." 20 C.F.R. § 404.1545(a)(3). The claimant is responsible for providing evidence to determine his RFC. See id. To determine the RFC, the ALJ will consider the claimant's physical and mental abilities, as well as his symptomatology (including pain). See id. § 404.1545(b)-(e).
Here, substantial evidence supports the ALJ's RFC determination of sedentary work with additional limitations. The medical evidence from the relevant period between Glessing's disability onset date (June 14, 2006) and his date last insured (March 31, 2012) consisted of a single consultative examination in June 2011. Dr. Mahendra Misra found that Glessing could get on and off the examination table by himself, his deep tendon reflexes were normal, and his legs were generally equal in size (except for some muscle atrophy which had been present for many years). Dr. Misra also found that Glessing could not perform work that involved prolonged standing, walking, climbing, running, crawling, lifting, pulling, or pushing. Glessing's own report of his activities at the time indicated that he could walk, drive, and ride in a car. Although standing and walking could bring on pain, Glessing relieved his pain by sitting and elevating his leg. Based on this evidence, the ALJ determined that an RFC of sedentary work was appropriate with limitations that accounted for Dr. Misra's observations and Glessing's self-reported symptoms.
An RFC of "[s]edentary work . . . generally involves up to two hours of standing or walking and six hours of sitting in an eight-hour work day." Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
Specifically, the ALJ determined that Glessing's RFC was less than sedentary work, except he can never operate foot controls with his left foot, climb ladders, climb ropes, climb scaffolds, kneel, crouch, crawl, or be exposed to unprotected heights, and he can only occasionally climb or use ramps, balance, or stoop. See Cert. Admin. R. at 1241.
Glessing argues that the RFC determination was erroneous because, in making the determination, the ALJ ignored the findings of Dr. Sonya Clark, a medical file reviewer, and Dr. Sujit Chakrabarti, a consultative examiner who examined Glessing in 2014. But the ALJ specifically discussed and weighed each doctor's opinion. The fact that those doctors' opinions may have contradicted Dr. Misra's does not undermine the ALJ's RFC finding because "[g]enuine conflicts in the medical evidence are for the Commissioner to resolve." Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). Glessing also argues that the ALJ should have contacted Dr. Stuart Springer, an orthopedic surgeon, for additional information before rendering a decision. But where the medical record appears to be complete and the evidence is sufficient to make a disability determination, the ALJ has no obligation to obtain more information. See Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999). And here, Glessing did not seek any medical care from Dr. Springer during the relevant period between the disability onset date and the date last insured. Thus, there were no missing records from the relevant time period that the ALJ failed to obtain. Further, the fact that Glessing offered no medical evidence showing that his physical symptoms were severe during the relevant period bolsters the conclusion that the ALJ's findings were supported by substantial evidence. See Arnone v. Bowen, 882 F.2d 34, 39 (2d Cir. 1989) ("[Claimant's] failure to present any medical evidence from that period seriously undermines his contention that he was continuously disabled during that time.").
We cannot reject the facts found by the ALJ because a reasonable factfinder would not have to conclude otherwise. See Brault, 683 F.3d at 448. Thus, substantial evidence supports the ALJ's RFC determination.
II. Jobs Glessing Can Perform
Second, Glessing challenges the ALJ's determination that he could perform three jobs available in the national economy because those jobs did not allow him to elevate his lower left leg fifty percent of the time. This job availability determination is step five in the process promulgated by the Commissioner for evaluating disability claims. See Perez, 77 F.3d at 46 ("If the claimant satisfies [his] burden of proving the . . . first four steps, the burden then shifts to the [Commissioner] to prove in the fifth step that the claimant is capable of working."). "At Step Five, the Commissioner must determine that significant numbers of jobs exist in the national economy that the claimant can perform." McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014) (citing 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v)). To make this determination, "[a]n ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as there is substantial record evidence to support the assumptions upon which the vocational expert based his opinion and accurately reflect the limitations and capabilities of the claimant involved." Id. (cleaned up).
Here, the ALJ was entitled to rely on the vocational expert's interrogatory answers and testimony that Glessing could perform three jobs available in the national economy: lens inserter, table worker, and addresser. The hypothetical given to the vocational expert-involving an individual with Glessing's RFC, without a limitation that the individual must be able to elevate his lower left leg fifty percent of the time-was based on the ALJ's RFC determination, which is supported by substantial evidence. Thus, substantial evidence supports the ALJ's step five determination.
We have considered the remainder of Glessing's arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.