10-4959-cv
William M. Lazore v. Michael 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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 31st day of October, two thousand eleven.

PRESENT:
             AMALYA L. KEARSE,
             PIERRE N. LEVAL,
             DENNY CHIN,
                            Circuit Judges.
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WILLIAM M. LAZORE,
          Plaintiff-Appellant,

                    -v.-                                           10-4959-cv

MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
          Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:                JAYA A. SHURTLIFF, Olinsky &
                                        Shurtliff, Syracuse, New York.



FOR DEFENDANT-APPELLEE:                 CHRISTOPHER JOHN BRACKETT, Special
                                        Assistant United States Attorney
                                        (Kevin James, Office of General
                                        Counsel, on the brief), Social
                                        Security Administration, New York,
                                        New York.



             Appeal from the United States District Court for the

Northern District of New York (Sharpe, J.).
             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is AFFIRMED.

          Plaintiff-appellant William M. Lazore appeals from the

district court's September 30, 2010 judgment affirming the

decision of the Commissioner of Social Security (the

"Commissioner") denying Disability Insurance Benefits ("DIB") and

Supplemental Security Income ("SSI") payments and dismissing the

complaint.    The district court issued a memorandum decision and

order on September 30, 2010, granting the Commissioner's motion

for judgment on the pleadings.     We assume the parties'

familiarity with the facts and procedural history, which we

reference only as necessary to explain our decision to affirm.

             On April 27, 2001 and May 10, 2001, respectively,

Lazore applied for DIB and SSI payments, alleging an onset of

disability on January 9, 1999.     The Commissioner denied the

applications on July 31, 2001.     Lazore applied for a hearing

before an administrative law judge ("ALJ").     On October 29, 2002,

ALJ Joseph Medicis, Jr. denied Lazore's claims, and on February

27, 2007, the Appeals Council denied Lazore's request for review
of the ALJ's decision.     Lazore then commenced the action below.

             We review a decision affirming the Commissioner's

denial of an application for DIB and SSI payments de novo.

Zabala v. Astrue, 

, 408 (2d Cir. 2010).     "[W]e 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."


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marks omitted).     Substantial evidence

includes "such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion."      Richardson v.

Perales, 

, 401 (1971).      If supported by substantial

evidence, the findings of the Commissioner as to any fact shall

be conclusive.    42 U.S.C. § 405(g).   After reviewing the record,

we conclude, for substantially the reasons set forth by the

district court, that Lazore is not entitled to DIB and SSI

payments under the Social Security Act ("Act").

          The Act recognizes an individual as disabled only if:

          his physical or mental impairment or
          impairments are of such severity that he 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, regardless of whether such
          work exists in the immediate area in which he
          lives, or whether a specific job vacancy
          exists for him, or whether he would be hired
          if he applied for work.
42 U.S.C. § 423(d)(2)(A); see 20 C.F.R. § 404.1505(a).    The

Commissioner has established a five-step sequential evaluation

process to determine if an individual is disabled.     20 C.F.R.

§ 404.1520(a)(4).    First, the Commissioner considers whether the

individual is presently working or engaged in substantial gainful

activity; if so, the individual is deemed not disabled and the

inquiry ends.    20 C.F.R. § 404.1520(a)(4)(i).   Second, the

Commissioner considers whether the individual has severe medically

determinable impairments that meet the duration requirements set

out by 20 C.F.R. § 404.1509; if not, the individual is deemed not

disabled and the inquiry ends.    20 C.F.R. § 404.1520(a)(4)(ii).
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            Third, the Commissioner considers whether the medical

severity of the individual's impairments meets or equals a listed

impairment under Appendix 1 of 20 C.F.R. § 404.1520.     20 C.F.R.

§ 404.1520(a)(4)(iii).    Fourth, if the individual's impairments do

not meet or equal a listed impairment, the Commissioner must assess

the individual's residual functional capacity and ability to do

past relevant work.    20 C.F.R. § 404.1520(a)(4)(iv).   Fifth, if the

individual is unable to engage in past relevant work, the

Commissioner will assess his ability to adjust to do other work, in

light of his residual functional capacity, age, education, and work

experience.    20 C.F.R. § 404.1520(a)(4)(v).

            Here, the ALJ found that Lazore's impairments satisfied

steps one and two of the five-step inquiry.     At step three, the

ALJ found that Lazore's impairments did not meet or equal those in

Appendix 1, and thus proceeded to assess his residual functional

capacity.     While finding, at step four, that Lazore lacked the

residual functional capacity to engage in his previous occupation,

the ALJ concluded, at step five, that Lazore retained sufficient

residual functional capacity to engage in other unskilled, light

work.   This decision, as the district court found, was supported

by substantial evidence.

            Step five of the disability claim evaluation assesses
the individual's "residual functional capacity" in light of his
age, education, and work experience to determine if he can pursue
new or other work.     20 C.F.R. § 404.1520(a)(4)(iv).   The
regulations define residual functional capacity as "the most you


                                  -4-
can still do despite your limitations," where physical abilities,
mental abilities, other abilities affected by impairments, and
total limiting effects of all impairments are considered.      20
C.F.R. § 416.945.

           Generally, where opinions regarding an individual's
impairments differ, an opinion that is not consistent with the
record as a whole will be afforded less weight.     20 C.F.R.
§ 404.1527(d)(4).   Additionally, "[w]hile the opinions of a
treating physician deserve special respect . . . they need not be
given controlling weight where they are contradicted by other
substantial evidence in the record."   Veino v. Barnhart, 

, 588 (2d Cir. 2002).
           Medical examinations by nearly a dozen physicians and
health care professionals from February 27, 1999 forward offer
substantial evidence to support the Commissioner's conclusion that
Lazore possessed the residual functional capacity to work.      For
example, several different doctors found that Lazore could lift,
carry, push and pull, stand, walk, and sit in the manner required
of light work.   Another doctor concluded that Lazore could
understand and follow simple directions, maintain attention and
concentration, and perform simple tasks.
           In addition to these medical findings, the ALJ
considered Lazore's relative youth and his past relevant work
experiences as a roofer, forklift operator, and welder/fabricator
to conclude that while Lazore could not continue his past work, he
was not materially restricted in engaging in "the full range of
unskilled, light work."    These factors supported the ALJ's
conclusion that Lazore was not disabled within the meaning of the
Act.   We find that the ALJ based its decision on the substantial

evidence in the record.    See 

.

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            Lazore argues that the ALJ failed to analyze his mental
impairments under the "special technique" laid out in 20 C.F.R.
§ 404.1520a(c)(4).   While the ALJ did not explicitly discuss each
of the four categories outlined in § 404.1520a(c)(4), we agree
with the district court that, in light of the ALJ’s extensive
discussion of Lazore’s mental limitations, such an omission was
harmless.
            We have considered Lazore's other arguments and
conclude they are without merit.        Accordingly, the judgment of
the district court is AFFIRMED.
                                FOR THE COURT:
                                CATHERINE O'HAGAN WOLFE, CLERK




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