18-3594
Wetzel v. Berryhill

                            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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
5th day of September, two thousand nineteen.

Present:          ROSEMARY S. POOLER,
                  BARRINGTON D. PARKER,
                  REENA RAGGI,
                           Circuit Judges.

_____________________________________________________

DAVID WETZEL, JR.,

                              Plaintiff-Appellant,

                       v.                                                  18-3594-cv

NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:      Mark Schneider, Schneider & Palcsik, Plattsburgh, N.Y.

Appearing for Appellee:       Peter W. Jewett, Special Assistant U.S. Attorney (Ellen E. Sovern,
                              Acting Regional Chief Counsel – Region II, Office of the General
                              Counsel, Social Security Administration, on the brief), for Grant C.
                              Jaquith, United States Attorney for the Northern District of New
                              York, Syracuse, N.Y.
Appeal from the United States District Court for the Northern District of New York (Hummel,
M.J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant David Wetzel, Jr. appeals from the November 21, 2018, judgment affirming
the Commissioner’s March 30, 2016, denial of Wetzel’s application for supplemental security
income after an administrative law judge (ALJ) determined that Wetzel was not disabled. We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

        “On appeal, we conduct a plenary review of the administrative record to determine if
there is substantial evidence, considering the record as a whole, to support the Commissioner’s
decision and if the correct legal standards have been applied.” Shaw v. Chater, 221 F.3d 126, 131
(2d Cir. 2000). Substantial evidence “means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal quotation marks omitted). “When deciding an appeal from a denial of disability
benefits, we focus on the administrative ruling rather than the district court’s opinion.” McIntyre
v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (internal quotation marks omitted).

         Wetzel’s first argument on appeal is that the ALJ erred by giving substantial weight to
the medical opinion of a non-examining consultant while discounting the medical opinions of
Wetzel’s treating physicians and an examining consultant. An ALJ generally must give greater
weight to the medical opinions of treating and examining sources than to the medical opinions of
non-treating and non-examining sources. 20 C.F.R. § 404.1527(c). Nonetheless, Wetzel’s
argument is meritless for two reasons. First, Wetzel did not provide medical opinions from his
treating physicians. “Medical opinions are statements from acceptable medical sources that
reflect judgments about the nature and severity of [a claimant’s] impairments(s), including [the
claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1).
The record evidence from Wetzel’s treating sources does not contain any such judgments about
the nature and severity of Wetzel’s impairments and instead consists entirely of treating notes.
Second, the ALJ did not err in concluding that the non-examining consultant’s medical opinion
was entitled to greater weight than the examining consultant’s medical opinion. As required by
statute, the ALJ properly considered a number of factors in attributing weight to the consultants’
medical opinions, including, significantly in Wetzel’s case, the consistency of the opinion with
the record, “the amount of understanding of . . . disability programs and their evidentiary
requirements that a medical source has, regardless of the source of that understanding, and the
extent to which a medical source is familiar with the other information in [the claimant’s] case
record.” Id. § 404.1527(c)(6).

        Wetzel’s second argument, that the ALJ’s decision that Wetzel could perform light work
is not supported by substantial evidence, also fails. Wetzel first argues that the ALJ erred by
finding that his impairment was not the equivalent of Listing Impairment 1.04A for spinal
disorders. “For a claimant to qualify for benefits by showing that his unlisted impairment, or



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combination of impairments, is ‘equivalent’ to a listed impairment, he must present medical
findings equal in severity to all the criteria for the one most similar listed impairment.” Sullivan
v. Zebley, 493 U.S. 521, 531 (1990). The ALJ correctly concluded that Wetzel does not suffer
from neuro-anatomic motor loss and has not had a positive straight-leg raising test, as required
by Listing Impairment 1.04A. Wetzel has not identified any medical findings stating that, despite
lacking these symptoms, he has other symptoms “equal in severity to: the criteria for Listing
Impairment 1.04A, id.

        Wetzel next argues that the ALJ failed to consider the effect of his pain and medication
side effects in determining that he could perform light work. Where a claimant’s “subjective
complaints [are] unsupported by objective medical evidence,” they may not defeat an ALJ’s
finding that a claimant’s pain is not debilitating. Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir.
2009). Substantial evidence in the record reveals that Wetzel’s pain is well managed with
medication, and the side effects of his medication do not impair his ability to perform light work.
Wetzel complained to his treating physicians of medication side effects—nausea—on just one
occasion, and his treating physician promptly prescribed a different medication to solve the
problem. Moreover, there is no evidence in the record that Wetzel ever complained to any of his
treating doctors that his medications made him “very dopey,” as he claimed they did at his
disability hearing. Certified Administrative Record at 44. Finally, the ALJ did not err by
concluding that Wetzel’s obesity did not interact with his other conditions to cause a disabling
impairment. Neither the treatment notes nor the medical opinions of the consultants suggest that
Wetzel’s obesity exacerbated his impairments.

         Third, Wetzel challenges the ALJ’s adverse credibility determination. In evaluating a
claimant’s credibility, the ALJ must follow a two-step process. Genier v. Astrue, 606 F.3d 46, 49
(2d Cir. 2010). First, “the ALJ must decide whether the claimant suffers from a medically
determinable impairment that could reasonably be expected to produce the symptoms alleged.”
Id. Second, “the ALJ must 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.” Id.
(alterations omitted) (internal quotation marks omitted). Here, the ALJ properly identified at
least three different bases for finding that Wetzel was not credible, including inconsistency with
the objective medical evidence and his testimony about his intact activities of daily living.
Wetzel’s objections to the weighing of this evidence and assessment of his credibility are without
merit.

        Wetzel also argues that the ALJ erred by determining that he could perform his previous
relevant work experience as a welder because a welder’s position requires at least medium
exertion and the ALJ concluded that Wetzel is capable of only light exertion. The Commissioner
concedes that, as the district court determined, the ALJ erred in concluding that Wetzel could
work as a welder. However, we agree with the Commissioner that, even if the ALJ had not made
this error, there is “no reasonable likelihood” that he would have changed his disability decision
because the ALJ identified at least three other jobs in the national economy that Wetzel is
capable of performing. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (finding remand
unnecessary where the ALJ’s error would not have affected the disability determination).




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         Lastly, Wetzel argues that the ALJ’s determination that he could perform light work as a
toll collector, officer helper, or inspector/hand packager was not supported by substantial
evidence. Wetzel’s arguments attacking the evidence upon which the ALJ based his decision ask
this Court to attribute greater weight to the examining consultant and the credibility of his
testimony. Having already rejected these arguments above, we find no basis to conclude that the
ALJ did not support his conclusion regarding Wetzel’s ability to perform light work with
substantial evidence.

        We have considered the remainder of Wetzel’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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