Barrere v. Saul

B
20-1102-cv
Barrere v. Saul

                                  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 23rd day of April, two thousand twenty-one.

PRESENT:             DENNY CHIN,
                     MICHAEL H. PARK,
                                         Circuit Judges,
                     VICTOR A. BOLDEN,
                                         District Judge. *
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STEVEN BARRERE,
                                        Plaintiff-Appellant,

                              -v-                                                  20-1102-cv

ANDREW SAUL,
                                        Defendant-Appellee.

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*     Judge Victor A. Bolden, of the United States District Court for the District of
Connecticut, sitting by designation.
FOR PLAINTIFF-APPELLANT:                 CHRISTOPHER JAMES BOWES, Shoreham,
                                         New York.

FOR DEFENDANT-APPELLEE:                  CANDACE SCOTT APPLETON, Assistant
                                         United States Attorney (Varuni Nelson, Arthur
                                         Swerdloff, Assistant United States Attorneys,
                                         on the brief), for Mark J. Lesko, Acting United
                                         States Attorney for the Eastern District of New
                                         York, Brooklyn, New York.

             Appeal from the United States District Court for the Eastern District of

New York (Cogan, J.).

             UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

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

             Plaintiff-appellant Steven Barrere appeals from a judgment of the district

court entered January 30, 2020, denying his motion for judgment on the pleadings and

granting the cross-motion for judgment on the pleadings of defendant-appellee Andrew

Saul, Commissioner of the Social Security Administration (the "Commissioner"), and

upholding a decision of the Commissioner denying Barrere's claim for disability

insurance benefits. On appeal, Barrere argues that the decision of the Administrative

Law Judge (the "ALJ") denying him disability benefits -- following a traumatic brain

injury that caused behavioral and emotional disorders -- was not supported by

substantial evidence. Barrere also argues that, in reviewing the ALJ's decision, the

Appeals Council improperly rejected new and material evidence. We assume the




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

on appeal.

              We review de novo a district court's decision to grant 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). Substantial

evidence is "evidence that a reasonable mind might accept as adequate to support a

conclusion." Estrella v. Berryhill, 

925 F.3d 90

, 95 (2d Cir. 2019) (internal quotation marks

omitted). And "once an ALJ finds facts, we can reject those facts only if a reasonable

factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 

683

F.3d 443

, 447 (2d Cir. 2012) (internal quotation marks and emphasis omitted).

              Barrere argues that the district court erred in affirming the ALJ's decision

because the ALJ ignored critical evidence supporting his disability claim. But as the

district court explained, the ALJ's failure to specifically address all of Barrere's evidence

is not fatal to its disability finding because the "ALJ need not recite every piece of

evidence that contributed to the decision, so long as the record 'permits us to glean the

rationale of an ALJ's decision.'" S. App'x at 8 (quoting Cichocki v. Astrue, 

729 F.3d 172

,

178 n.3 (2d Cir. 2013)). And here we can glean the rationale of the ALJ's decision, as the



                                              3
record contains robust support for the finding that Barrere was not disabled. See, e.g.,

Certified Administrative Record ("CAR") at 90 (Barrere had no difficulties in

maintaining concentration, persistence, or pace; only mild difficulties completing

"activities in daily living"; and moderate difficulties in maintaining social functioning);

id. at 94

(Barrere is able to travel by himself and get to appointments on time);

id. at 284

(Barrere's "cognitive functioning is largely intact with multiple cognitive strengths");

id.

at 287

(Barrere had the highest possible score on a "Mini-Mental State Examination,"

indicating that, at worst, he suffered from mild cognitive impairment);

id. at 301

(Barrere "denie[d] having any anxiety" and "any depression");

id. at 332

(Barrere

"cooperated for . . . testing, although mood shifts and irritability were displayed");

id. at

222, 330

(Barrere earned a blackbelt in martial arts since his injury and teaches karate to

children four hours per week).

               Even though there is also evidence in the record to the contrary, see, e.g.,

CAR at 364-65 (Barrere has an inability to, among other things, remember locations and

work-like procedures, understand and remember short and simple instructions, get

along with co-workers and peers without distracting them), 1 and even though "an

analysis of the substantiality of the evidence must also include that which detracts from




1       Dr. Stanley Hertz's report, in which these conclusions were made, has some
shortcomings -- such as checking boxes without providing narrative responses and reaching a
conclusion that is not consistent with other evidence in the record -- that permit the ALJ to
afford his conclusions limited weight. See Halloran v. Barnhart, 

362 F.3d 28

, 32 (2d Cir. 2004).


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its weight," Quinones ex rel. Quinones v. Chater, 

117 F.3d 29

, 33 (2d Cir. 1997) (internal

quotation marks omitted), "we defer to the Commissioner's resolution of conflicting

evidence," Cage v. Comm'r of Soc. Sec., 

692 F.3d 118

, 122 (2d Cir. 2012); see DeChirico v.

Callahan, 

134 F.3d 1177

, 1182-83 (2d Cir. 1998) (where "substantial evidence in the

record" supported claimant's account, "[b]ut there was also substantial evidence in the

record from which the ALJ could have reasonably" ruled against the claimant, "we

cannot say that the ALJ's finding . . . was unsupported on the record"); Alston v. Sullivan,

904 F.2d 122

, 126 (2d Cir. 1990) ("Where there is substantial evidence to support either

position, the determination is one to be made by the factfinder."); Rutherford v. Schweiker,

685 F.2d 60

, 62 (2d Cir. 1982) ("factual findings of the [agency], if supported by

substantial evidence, shall be conclusive," even if "our own interpretation of the

evidence" would lead to a different result). Accordingly, we affirm the judgment below

because we agree that the ALJ's ruling is supported by substantial evidence.

              Barrere also argues that the Appeals Council improperly rejected new and

material medical evidence -- that is, a July 11, 2017 Neuropsychological Evaluation

prepared by Dr. Cindy L. Breitman, which concluded that Barrere is "fully disabled."

CAR at 25. But for substantially the reasons set forth by the district court, we agree that

the Appeals Council did not improperly disregard material evidence. Dr. Breitman

specifically stated that she considered Barrere disabled "at this time," meaning July 11,

2017 -- two months after the ALJ's determination. CAR at 25. And Barrere has not



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persuaded us that there is a reasonable probability that this report -- which was not

based on any functional assessment of Barrere and which contained objective findings

that supported the ALJ's determination -- would have changed the outcome of the ALJ's

decision. See 20 C.F.R. § 416.1470(a)(5). Accordingly, we reject Barrere's argument that

the Appeals Council or the district court erred by disregarding new and material

evidence.

                                        *   *   *

             We have considered Barrere's remaining arguments and conclude that

they are without merit. Accordingly, we AFFIRM the judgment of the district court.

                                         FOR THE COURT:
                                         Catherine O'Hagan Wolfe, Clerk




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