15-839-cv
Heagney-O’Hara v. Comm’r of Soc. Sec.


                                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 21st day of April, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 PAUL A. ENGELMAYER,
                                 Judge.
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JUDITH ANNE HEAGNEY-O’HARA,
                                 Petitioner-Appellant,

                              v.                                                  No. 15-839-cv

COMMISSIONER OF SOCIAL SECURITY,
                                 Respondent-Appellee.
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    FOR PETITIONER-APPELLANT:                              JUDITH ANNE HEAGNEY-O’HARA, pro
                                                           se, Rochester, NY.

    FOR RESPONDENT-APPELLEE:                               FERGUS KAISER, Special Assistant
                                                           United States Attorney (Stephen P.
                                                           Conte, Regional Chief Counsel, Office
                                                           of the General Counsel, Social Security
                                                           Administration, on the brief), for


    Judge Paul A. Engelmayer, of the Southern District of New York, sitting by designation.


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                                                 William J. Hochul, Jr., United States
                                                 Attorney, Western District of New York,
                                                 Buffalo, NY.

       Appeal from judgment of the United States District Court for the Western District

of New York (Siragusa, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Petitioner-Appellant Judith Anne Heagney-O’Hara, proceeding pro se, appeals

from the district court’s judgment granting a motion on the pleadings in favor of

Respondent-Appellee, the Commissioner of Social Security. Heagney-O’Hara seeks

disability insurance benefits for the relevant period of March 9, 2001 through March 31,

2003, for injuries sustained from a slip-and-fall accident. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

       When reviewing disability determinations made by the Commissioner, we conduct

a plenary review of the administrative record, Brault v. Soc. Sec. Admin., Comm’r, 683
F.3d 443, 447 (2d Cir. 2012), and may only set aside the Commissioner’s decision if the

factual findings are not supported by substantial evidence or if the decision is based on

incorrect legal standards, Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial

evidence means “more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Burgess v. Astrue,

537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks and citation omitted).

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       Liberally construing Heagney-O’Hara’s submissions on appeal, see Wright v.

C.I.R., 571 F.3d 215, 219 (2d Cir. 2009), we read her brief as raising four arguments: 1)

the district court misunderstood the relevant time period; 2) the Administrative Law

Judge (“ALJ”) improperly considered Heagney-O’Hara’s decision not to pursue surgery;

3) the ALJ’s residual functional capacity (“RFC”) determination is not supported by

substantial evidence; and 4) the ALJ erred at steps four and five of the five-step

sequential evaluation for the adjudication of disability claims, see 20 C.F.R. § 404.1520.

   1. Relevant Time Period

       Heagney-O’Hara asserts that the district court misunderstood the relevant time

period, pointing to the court’s 1) use of the term “can” instead of “could” when referring

to Heagney-O’Hara’s ability to perform her past relevant work, and 2) reference to the

medical opinion of Dr. Toor, dated February 25, 2011. To the extent that these statements

in the district court’s opinion reflect a misunderstanding of the relevant time period, such

misunderstanding was harmless. The district court properly applied the correct legal

standard, concluding that the ALJ’s findings were supported by substantial evidence. In

doing so, the court carefully reviewed the evidence on which the ALJ relied, including

statements by Heagney-O’Hara, Dr. Goldman, Dr. Tesser, Ivy Green, and the vocational

expert. Although the court referenced Dr. Toor’s 2011 examination, it did so only to note

that the examination played no role in the ALJ’s analysis. Meanwhile, any inconsistency

in verb tense was similarly not meaningful. This argument is therefore meritless.




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    2. Decision Not to Pursue Surgery

        Heagney-O’Hara next argues that the ALJ improperly considered her decision not

to pursue surgery when making his credibility determination. This argument is likewise

meritless. 1 An ALJ is required to consider a variety of factors when assessing a

claimant’s credibility, including whether the claimant has received treatment, other than

medication, to relieve her symptoms. See 20 C.F.R. § 404.1529(c)(3)(v). Thus, it was

entirely proper for the ALJ to consider Heagney-O’Hara’s decision not to pursue surgery

when assessing her credibility.

    3. RFC Determination

        Heagney-O’Hara also contests the ALJ’s RFC determination. She asserts that her

arm took longer than five months to heal and required ongoing therapy; that Dr. Tesser’s

medical opinion should have been given greater weight; and that the ALJ erred in

discrediting her claim of total disability.

        In making an RFC determination, the ALJ must consider all relevant medical and

non-medical evidence of record. See 20 C.F.R. § 404.1545. Where a claimant’s

symptoms are not supported by objective medical evidence, they must be analyzed in

accordance with several factors, including the claimant’s daily activities; duration and


1
  We assume, without deciding, that Heagney-O’Hara’s failure to raise this argument below did not
constitute waiver. See Miller v. Comm’r of Soc. Sec., 409 F. App’x 384, 387 (2d Cir. 2010) (summary
order) (assuming arguendo that pro se claimant did not forfeit arguments by failing to raise them before
district court); cf. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (observing that, “at least where the
claimant is represented by counsel before the district court, the claimant must present the relevant legal
arguments in that forum in order to preserve them for appellate review”).


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frequency of pain; medication; and treatment. See id. § 404.1529(c)(3). Medical opinions

are weighed according to, inter alia, the length, nature, and extent of the treating

relationship, if any; the consistency of the opinion with the record as a whole; the

physician’s specialty; and other relevant factors. Id. § 404.1527(c).

       Here, the ALJ recognized that Heagney-O’Hara suffered from a restricted range of

motion and underwent extensive physical therapy. Nonetheless, the ALJ concluded that

her allegation of total disability was not credible based on the fact that she suffered a

fracture to her right arm but was left-hand dominant; her treatment was routine and

conservative; she admitted that she did not have much trouble using her right hand and

could lift a gallon of milk; and her range of motion improved with physical therapy. In so

concluding, the ALJ gave little weight to the opinion of Dr. Tesser, finding that, although

he was a rheumatologist, he was friends with Heagney-O’Hara and lacked a treating

relationship with her. The ALJ also noted that Dr. Tesser failed to describe

Heagney-O’Hara’s limitations with sufficient specificity. Meanwhile, the ALJ gave great

weight to the opinion of Dr. Goldman. Even though Dr. Goldman also lacked a treating

relationship with Heagney-O’Hara, his opinion regarding Heagney-O’Hara’s healing

progress and ability to use her hand was consistent with the objective medical evidence in

the record. In light of these findings, we conclude that the ALJ’s RFC determination was

supported by substantial evidence.




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   4. Step Four and Step Five Analysis

       Finally, Heagney-O’Hara maintains that she was unable to perform either her past

relevant work as an administrative assistant, as determined at step four of the evaluation

process, or the alternative positions identified by the vocational expert, as determined at

step five.

       At step four, a claimant bears the burden of showing that she cannot perform her

past relevant work. See Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004). Here,

Heagney-O’Hara indicated that her past work as an administrative assistant was

performed while seated, involved extensive typing, and required frequent lifting of less

than ten pounds and occasional lifting of at most twenty pounds. She testified that,

although she could not raise her arm, she did not have much problem using her right

hand, could button her blouse and drive her car, and was capable of lifting a gallon of

milk. These statements, along with the opinions of Dr. Goldman and the vocational

expert, supported the ALJ’s conclusion that Heagney-O’Hara could perform light work in

a seated position with frequent but not constant fingering, handling, and reaching.

Heagney-O’Hara has failed to meet her burden of proving otherwise.

       At step five, the burden shifts to the Commissioner to establish that the claimant

can perform other gainful work available in the national economy. Id. The Commissioner

ordinarily satisfies this burden by introducing the testimony of a vocational expert. Id. at

384. This was done here, and Heagney-O’Hara does not challenge that fact on appeal.




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Accordingly, we find no error with the ALJ’s analysis at either step four or step five of

the sequential evaluation process.

       We have considered Heagney-O’Hara’s remaining arguments and conclude that

they are without merit. We therefore AFFIRM the judgment of the district court.

                                     FOR THE COURT:
                                     Catherine O’Hagan Wolfe, Clerk of Court




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