Filed: May 02, 2013
Latest Update: Mar. 28, 2017
Summary: 12-3013 Reices-Colon v. Astrue 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”
Summary: 12-3013 Reices-Colon v. Astrue 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”)..
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12-3013
Reices-Colon v. Astrue
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 2nd day of May, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _____________________________________
13
14 CYNTHIA REICES-COLON,
15
16 Plaintiff-Appellant,
17
18 v. 12-3013
19
20 MICHAEL J. ASTRUE, Commissioner
21 of Social Security,
22
23 Defendant-Appellee.
24 _____________________________________
25
26
27
1 FOR PLAINTIFF-APPELLANT: IDA M. COMERFORD, Law Offices of
2 Kenneth Hiller, Amherst, NY.
3
4 FOR DEFENDANT-APPELLEE: THOMAS C. GRAY, Special
5 Assistant United States Attorney
6 (Stephen P. Conte, of counsel)
7 for William J. Hochul, Jr.,
8 United States Attorney for the
9 Western District of New York,
10 New York, NY.
11
12 Appeal from a judgment of the United States District
13 Court for the Western District of New York (Larimer, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
16 AND DECREED that the judgment is AFFIRMED.
17
18 Appellant Cynthia Reices-Colon appeals from the
19 district court’s grant of Commissioner Astrue’s motion for
20 judgment on the pleadings. We assume the parties’
21 familiarity with the underlying facts, the procedural
22 history of the case, and the issues on appeal.
23
24 “On appeal, we conduct a plenary review of the
25 administrative record to determine if there is substantial
26 evidence, considering the record as a whole, to support the
27 Commissioner’s decision and if the correct legal standards
28 have been applied. Substantial evidence means more than a
29 mere scintilla. It means such relevant evidence as a
30 reasonable mind might accept as adequate to support a
31 conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.
32 2009) (internal citation omitted).
33
34 1. The Step Two Assessment
35
36 Reices-Colon first argues that the ALJ failed to
37 properly perform step two of the five-step sequential
38 evaluation process that this Court has outlined for Social
39 Security claims. See Perez v. Chater,
77 F.3d 41, 46 (2d
40 Cir. 1996). She claims that the ALJ’s step two analysis was
41 deficient because the ALJ excluded her anxiety disorder and
42 panic disorder from his review.
43
44
2
1 However, Reices-Colon failed to preserve her argument
2 in the district court. “At least where the claimant is
3 represented by counsel before the district court, the
4 claimant must present the relevant legal arguments in that
5 forum in order to preserve them for appellate review.”
6 Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). By
7 Reices-Colon’s own admission, that did not happen.
8
9 Even if this argument had not been waived, any error
10 would be harmless. At step two, the ALJ identified other
11 “severe impairments,” including Reices-Colon’s “back
12 problem, migraine headaches, depression, and post traumatic
13 stress disorder,” and therefore proceeded with the
14 subsequent steps. A15. And, in those subsequent steps, the
15 ALJ specifically considered her anxiety and panic attacks.
16 A17-18. Because these conditions were considered during the
17 subsequent steps, any error was harmless. See Zabala v.
18 Astrue,
595 F.3d 402, 410 (2d Cir. 2010) (finding harmless
19 error where the ALJ’s consideration of a doctor’s report
20 would not have changed the ALJ’s adverse determination).
21
22 2. Reices-Colon’s Ability to Return to Work
23
24 Reices-Colon agues that the ALJ made errors of law and
25 fact in determining that she was able to return to her past
26 jobs as a cashier and jeweler. Reices-Colon did not present
27 this argument before the district court, and it is therefore
28 waived. Poupore, 566 F.3d at 306.
29
30 Even if the argument had not been waived, it would
31 fail. A disability claimant bears the burden of proving
32 that she cannot return to her past relevant work, either as
33 it is performed in the national economy, or as she actually
34 performed it. 20 C.F.R. §§ 404.1520(f), 416.920(f); see
35 Diaz v. Shalala,
59 F.3d 307, 315 (2d Cir. 1995) (denying a
36 claim where the plaintiff retained the ability to perform
37 her former job as a seamstress). Reices-Colon’s argument
38 that working as a jeweler requires years of training that
39 she lacked is belied by her own “as performed” experience.
40 The record shows that she was training to be a jeweler
41 supervisor at the time that she stopped her work. The ALJ
42 could find that, if she was skilled enough to supervise her
43 colleagues, she had sufficient expertise to perform the work
44 herself.
3
1 3. The Administrative Record
2
3 Reices-Colon next argues that the ALJ misinterpreted
4 the record, and that he should have sought to supplement the
5 record with additional files from Dr. Cheema. Despite
6 Reices-Colon’s suggestion that the ALJ had no substantive
7 basis for finding that her symptoms had improved, four
8 pieces of evidence in the record supported such a finding.
9 See A362-64 (treatment notes dated November 2006 indicating
10 that Reices-Colon’s chest pains had “improved,” and that
11 Effexor “seems to be helping”); A298 (treatment notes dated
12 February 9, 2007 indicating that Reices-Colon’s symptoms had
13 shown “some improvement” and that she was “not crying as
14 much”); A158 (treatment notes dated April 6, 2007 indicating
15 that Reices-Colon’s “mood improved on Effexor”); A505
16 (physical therapy notes dated March 2008 indicating that
17 Reices-Colon was “feeling better” and was improving with
18 treatment). Plus, Dr. Ransom (the consultative examiner for
19 Social Security) concluded that Reices-Colon had a “fair to
20 good” prognosis “with continued treatment.” A287.
21 Substantial evidence therefore supports the ALJ’s finding
22 that Reices-Colon showed improvement with treatment.
23
24 Reices-Colon’s record supplementation argument is
25 similarly baseless. She identifies no specific record that
26 was missing, much less explains how it would have affected
27 her case. We therefore find no error in the ALJ’s
28 development of the record.
29
30 We have considered all of Reices-Colon’s remaining
31 arguments and find them to be without merit. Accordingly,
32 the judgment of the district court is hereby AFFIRMED.
33
34 FOR THE COURT:
35 Catherine O’Hagan Wolfe, Clerk
4
