11-854-cv
 Campbell 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 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 Courthouse, 500 Pearl Street, in the City of New York, on the 6th day
 of January, two thousand twelve.

 Present:
                      RALPH K. WINTER,
                      PETER W. HALL,
                               Circuit Judges.
             ALVIN K. HELLERSTEIN,*
                               District Judge.
 ________________________________________________

 GERALD M. CAMPBELL,

                      Plaintiff-Appellant,

                      v.                                               No. 11-854-cv

 MICHAEL ASTRUE, COMMISSIONER OF
 SOCIAL SECURITY,

             Defendant-Appellee.
 ________________________________________________

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




          *
          The Honorable Alvin K. Hellerstein, District Judge for the United States District Court
 for the Southern District of New York, sitting by designation.
FOR APPELLEE:           SIXTINA FERNANDEZ, Special Assistant United States Attorney
                        (Stephen P. Conte, Regional Chief Counsel - Region II, of
                        counsel), for Richard S. Hartunian, United States Attorney for the
                        Northern District of New York.
________________________________________________

       Appeal from the United States District Court for the Northern District of New York

(Kahn, J.) ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the district court’s judgment is AFFIRMED.

       Plaintiff-Appellant Gerald M. Campbell appeals from the district court’s (Kahn, J.)

judgment affirming the decision of the Commissioner of Social Security (the “Commissioner”),

which denied Campbell’s applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) payments, and dismissing Campbell’s complaint. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

       When reviewing the Commissioner’s denial of DIB or SSI, we conduct a plenary review

of the administrative record, see Schaal v. Apfel, 

, 501 (2d Cir. 1998) (observing

that our focus of review is the administrative ruling, not the district court’s decision), and will set

aside the Commissioner’s decision only if the factual findings are not supported by substantial

evidence or if incorrect legal standards were applied, see Burgess v. Astrue, 

, 127

(2d Cir. 2008); Halloran v. Barnhart, 

, 31 (2d Cir. 2004); see also Pratts v. Chater,

, 37 (2d Cir. 1996) (“It is not our function to determine de novo whether [a plaintiff] is

disabled[.]”). A determination is supported by substantial evidence if the record contains “such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion,”

Jasinski v. Barnhart, 

, 184 (2d Cir. 2003) (citation omitted). In conducting our


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review, however, we will not substitute our own judgment for that of the Commissioner, even if

we “might justifiably have reached a different result upon de novo review.” Valente v. Sec’y of

Health & Human Servs., 

, 1041 (2d Cir. 1984).

       As a preliminary matter, we note that a number of the issues Campbell raises on

appeal—including that the Administrative Law Judge (“ALJ”) erred at step-two by failing to

consider the severity of Campbell’s diverticulitsis, anxiety, and insomnia, and at step-five by

failing to consult a vocational expert—were not presented to the district court. See Poupore v.

Astrue, 

, 306 (2d Cir. 2009) (“Although claimants in Social Security case are not

subject to some issue exhaustion requirements, at least where the claimant is represented by

counsel before the district court, the claimant must present the relevant legal arguments in that

forum to preserve them for appellate review.”) (internal citation omitted); see also Singleton v.

Wulff, 

, 120-21 (1976) (recognizing the well-established general rule that a court of

appeals will not consider an issue raised for the first time on appeal); Virgilio v. City of New

York, 

, 116 (2d Cir. 2005) (same). But see Burnette v. Carothers, 

, 58

(2d Cir. 1999) (holding that a court of appeals will consider an otherwise waived issue if a

miscarriage of justice would result). For this reason, we decline to consider these issues. Even if

considered, however, Campbell’s arguments lack merit. Our examination of the record confirms

that substantial evidence supports the ALJ’s finding that Campbell’s diverticulitsis, anxiety, and

insomnia were “non-severe” impairments, see 20 C.F.R. § 404.1521(a), and that the extent of

Campbell’s nonexertional limitations did not require the ALJ to consult a vocational expert, see

generally Zabala v. Astrue, 

, 410-11 (2d Cir. 2010); Bapp v. Bowen, 

,

605-06 (2d Cir. 1986).


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       Campbell’s preserved arguments are as follows. He asserts first that the ALJ erred by

determining that he retained the residual functional capacity (“RFC”) to perform light work, and

second, that the ALJ erred by concluding that his testimony concerning the intensity, persistence,

and limiting effects of his impairments was not credible. We reject both arguments.

       Although an ALJ’s RFC determination “must be set forth with sufficient specificity to

enable us to decide whether the determination is supported by substantial evidence,” Ferraris v.

Heckler, 

, 587 (2d Cir. 1984), “we do not require that [the ALJ] have mentioned

every item of testimony presented to him or have explained why he considered particular

evidence unpersuasive or insufficient to lead him to a conclusion of disability,” Mongeur v.

Heckler, 

, 1040 (2d Cir. 1983); see also Miles v. Harris, 

, 124 (2d

Cir. 1981) (rejecting argument that the ALJ must explicitly reconcile every shred of conflicting

testimony). Here, while the ALJ did not expressly discuss Campbell’s ability to perform each of

the functions identified in 20 C.F.R. § 404.1567(b) as demonstrative of a capacity to perform

“light work,” we agree with the district court that substantial evidence supports the ALJ’s overall

RFC determination. Campbell’s medical records confirm that while he suffers from a seizure

disorder, the vast majority of his seizures were caused by his poor management of his condition.

Indeed, on numerous occasions Campbell admitted to his treating physician that his seizure was

caused by his failure to take his prescribed medication. In addition, despite this disorder, Dr.

Taseer Minhas, Campbell’s treating physician, observed repeatedly that Campbell exhibited full

power in his extremities and normal physical functions, with the exception of an essential

tremor. This same diagnosis was confirmed by Campbell’s other treating physicians with

respect to his seizure disorder as well as to his osteoporosis, as they indicated, among other


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things, that Campbell “g[ot] around fairly well” and displayed a “good range of motion.”

Finally, the ALJ’s RFC finding is consistent with Minhas’s functional assessment.

       As for the ALJ’s credibility determination, while an ALJ “is required to take the

claimant’s reports of pain and other limitations into account, 20 C.F.R. § 416.929,” he or she is

“not require[d] to accept the claimant’s subjective complaints without question,” Genier v.

Astrue, 

, 49 (2d Cir. 2010). Rather, the ALJ “may exercise discretion in weighing

the credibility of the claimant’s testimony in light of the other evidence in the record.” 

a two-step process. First, “the ALJ must decide whether the claimant suffers from a

medically determinable impairment that could reasonably be expected to produce the symptoms

alleged.” 

the ALJ must then consider “the extent to which [the claimant’s] symptoms

can reasonably be accepted as consistent with the objective medical evidence and other evidence

of record.” 

marks omitted; alteration in Genier). For purposes of our

review, however, we have long held that “[i]t is the function of the [Commissioner], not

ourselves, . . . to appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y

of Health & Human Servs., 

, 642 (2d Cir. 1983).

       Substantial evidence supports the ALJ’s credibility finding. Adhering to this two-step

approach, the ALJ determined that Campbell’s symptoms were consistent with his medically

determinable impairments, but that his subjective assessment of the intensity and persistence of

his symptoms was not credible “to the extent [it was] inconsistent with the [light work] residual

functional capacity assessment.” The ALJ noted, in particular, that while Campbell testified that

he experienced a seizure at least once a month, this was inconsistent with his medical records,

which showed a seizure every few months or more, and on occasions when he did have a seizure,


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it was often caused by his failure to take his medication. The ALJ also noted that Campbell’s

back pain was “inconsistent with his minimal treatment history with regard to the back

problem.” However, the ALJ added that “considering the positive MRI findings, the claimant

has been given the benefit of the doubt concerning his pain complaints.” Each of these

observations is supported by substantial evidence. Campbell counters that because of his good

work history, he was entitled to “substantial credibility” concerning his present inability to work.

We disagree. Although it is true that “a good work history may be deemed probative of

credibility,” it remains “just one of many factors” appropriately considered in assessing

credibility. 

. Here, other factors—in particular, the inconsistency

between Campbell’s testimony and his medical records—weighed against a positive credibility

finding as to Campbell’s subjective assessment of the intensity of his symptoms. The ALJ’s

decision not to rely exclusively on Campbell’s good work history was therefore not erroneous.

See, e.g., Wavercak v. Astrue, 420 F. App’x 91, 94 (2d Cir. 2011) (unpublished summary order)

(“That Wavercak’s good work history was not specifically referenced in the ALJ’s decision does

not undermine the credibility assessment, given the substantial evidence supporting the ALJ’s

determination.”).

       We have considered all of Campbell’s remaining arguments and find them without merit.

The district court’s judgment is therefore AFFIRMED.



                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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