Filed: Sep. 29, 2021
Latest Update: Sep. 29, 2021
21-157-cv
Wright v. Comm’r
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 ASUMMARY 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 29th day of September, two thousand twenty-one.
PRESENT:
RICHARD C. WESLEY,
RICHARD J. SULLIVAN,
Circuit Judges,
BRIAN M. COGAN,
District Judge.*
_____________________________________
Rodney Keith Wright,
Plaintiff-Appellant,
v. 21-157
Commissioner of Social Security,
Defendant-Appellee.
_____________________________________
* Judge Brian M. Cogan, of the United States District Court for the Eastern District of New
York, sitting by designation.
FOR PLAINTIFF-APPELLANT: Rodney Keith Wright, pro se,
Brooklyn, NY.
FOR DEFENDANT-APPELLEE: Varuni Nelson, Arthur Swerdloff,
Rachel G. Balaban, Assistant United
States Attorneys, for Jacquelyn M.
Kasulis, Acting United States
Attorney for the Eastern District of
New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Hall, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Rodney Wright, proceeding pro se, sought review of a final
determination by the Commissioner of Social Security (“Commissioner”) denying
his application for disability insurance benefits (“DIB”). Wright’s original
application for benefits in 2014 was denied in 2015. Wright challenged the denial
in federal district court, and in 2017, the district court remanded the case for
further development of the record. After a second hearing on Wright’s DIB claim
in 2018, the Commissioner again denied his DIB application, and Wright brought
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a second challenge in federal court. This time, the district court granted the
Commissioner’s motion for judgment on the pleadings, finding that substantial
evidence supported the decision by the administrative law judge (“ALJ”) that
Wright was not disabled. Wright timely appealed and has also moved to vacate
the judgment below, arguing that the ALJ failed to develop the record in
accordance with the district court’s 2017 remand. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal, to which we refer only as necessary to resolve the 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 benefits
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)
(quoting Machadio v. Apfel,
276 F.3d 103, 108 (2d Cir. 2002)). “The substantial
evidence standard means” that “once an ALJ finds facts, we can reject those facts
only if a reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec.
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Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (citation and quotation marks
omitted). After a careful review of the record, we conclude that the ALJ applied
the correct legal standards and that his determination that Wright is not disabled
is supported by substantial evidence.
The Commissioner has a five-step process for assessing whether a claimant
is disabled under 42 U.S.C. § 423. The first step is “whether the claimant is
engaged in ‘substantial gainful activity.’” Dixon v. Shalala, 54 F.3d 1019, 1022 (2d
Cir. 1995) (citation omitted). If so, he is not entitled to benefits. 404 C.F.R.
§ 1520(a)(4)(i). At step two, the Commissioner considers “whether the claimant’s
medical condition or impairment is ‘severe.’” Dixon,
54 F.3d at 1022 (citation
omitted). If not, he is not entitled to benefits. 404 C.F.R. § 1520(a)(4)(ii). At the
third step, the Commissioner probes whether the claimant’s ailments are among
or equal to the “‘listed’ impairments” set forth in the appendix to the Social
Security regulations. Dixon,
54 F.3d at 1022 (citation omitted). A claimant
whose condition meets one of these impairments is entitled to benefits. 404 C.F.R.
§ 1520(a)(4)(iii). If the claimant’s condition does not match a listed impairment,
he may still be entitled to benefits, provided he can clear the fourth and fifth steps
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of the inquiry. At step four, the Commissioner assesses the claimant’s “residual
functional capacity,” i.e., the claimant’s capacity to perform work tasks such as
standing, sitting, bending, crawling, and lifting or carrying objects. Dixon, 54 F.3d
at 1022 (citation and quotation marks omitted). If the claimant’s residual
functional capacity permits him to perform his past relevant work, he is not
disabled. 404 C.F.R. § 1520(a)(4)(iv). If he cannot perform his past work,
however, he is entitled to benefits unless, at step five, the Commissioner can
demonstrate that he “has the capacity to perform alternative occupations available
in the national economy.” Dixon,
54 F.3d at 1022 (citation and quotation marks
omitted).
In this case, the Commissioner found at step three that Wright’s ailments
were not among or equal to the listed impairments set forth in the appendix to the
Social Security regulations, but concluded at step four that Wright lacked the
residual functional capacity to perform his past relevant work. The
Commissioner nevertheless found at step five that Wright had the capacity to
undertake several other jobs that exist in large numbers in the national economy,
such as surveillance systems monitor, lens inserter, or order clerk. Accordingly,
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the Commissioner determined that Wright was not disabled, and therefore not
entitled to benefits.
In the district court, Wright argued that the ALJ failed to consider evidence
of his insomnia when determining at step three that his conditions had not met the
definition of an impairment listed in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526.
The district court disagreed, concluding that the evidence relied on by Wright did
not refer to his insomnia, which in any event did not meet the definition of any
listed impairment. On appeal, Wright contends that the medical records related
to his insomnia refute the district court’s findings. The records, however, do not
show that he meets the listed impairment definition for any condition; they
demonstrate only that he complained of poor sleep. And, as the Commissioner
noted, Wright reported that his insomnia began improving in May 2017.
Wright also argues that the ALJ failed to properly develop the record
following the first remand, particularly since the consultant doctors did not
consider any medical evidence after 2015. We disagree. The district court’s
remand order directed the Commissioner to obtain medical records from medical
providers that the ALJ had not considered in 2015 – namely non-Veterans Affairs
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Medical Center doctors such as Drs. Christine Fitzpatrick, Simon Raskin, and Raz
Winiarsky. It did not require the ALJ to obtain supplemental opinions from
consulting physicians like Dr. Rita Clark. Indeed, Wright’s counsel stated at the
2018 hearing before the ALJ that he did not believe there were any other
outstanding records that should be before the ALJ. Accordingly, the ALJ
properly developed the record based on the remand order.
Similarly, Wright asserts that the ALJ and Appeals Council should have
considered the fact that Wright was deemed disabled by the Department of
Veterans Affairs (“VA”) in 2019. But, as the district court noted, the ALJ could
not have considered the 2019 VA decision because it was issued nearly a year after
the ALJ’s decision. And while our case law makes clear that “the determination
of another governmental agency that a social security disability benefits claimant
is disabled . . . is entitled to some weight and should be considered,” Cutler v.
Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975); see also Rivera v. Colvin, 592 F. App’x
32, 33 (2d Cir. 2015) (same), the record reflects that the agency did just that with
respect to the VA’s earlier, July 2014 assessment of Wright’s disability.
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Wright further contends the ALJ erred by refusing to consider Wright’s
subjective symptoms of fibromyalgia and by refusing to find that Wright suffered
from that disease based on his subjective symptoms alone. But Wright does not
point to any instance where the ALJ disregarded his subjective reports of pain. In
fact, the ALJ noted both Wright’s symptoms and the clinical findings and credited
Wright by finding that his fibromyalgia was a medically determinable
impairment.
In addition to his complaints about the ALJ’s weighing of medical evidence,
Wright argues at length that the ALJ misused the testimony of the vocational
expert and failed to heed the information contained in the Dictionary of
Occupational Titles (“DOT”). We disagree. Although the vocational expert did
opine that someone requiring frequent unscheduled breaks could not retain
employment in the national economy, the record did not compel the conclusion
that Wright would need such frequent breaks. Rather, the vocational expert
testified that a hypothetical person with Wright’s ailments could maintain
employment at a range of sedentary jobs. Moreover, contrary to Wright’s
assertion, the DOT does not indicate that any of the three jobs identified as suitable
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would require him to sit for more than six consecutive hours, the limit prescribed
by the ALJ in his residual functional capacity analysis. See DOT § 209.567-014,
1991 WL 671794 (order clerk), DOT § 379.367-010,
1991 WL 673244 (surveillance
systems monitor), DOT § 713.687-026,
1991 WL 679273 (lens inserter).
We have considered all of Wright’s remaining arguments and find them to
be without merit. Accordingly, we AFFIRM the judgment of the district court
and DENY Wright’s motion to vacate the judgment.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
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