523 F. App'x 796
2d Cir.2013Background
- Plaintiff Cynthia Reices-Colon appeals district court’s judgment affirming the Commissioner’s denial of benefits after an ALJ decision following the five-step Social Security evaluation.
- The ALJ found several severe impairments at step two, including back problems, migraines, depression, and PTSD, and later addressed anxiety and panic disorders in the subsequent steps.
- Reices-Colon argued the ALJ erred at step two by excluding anxiety and panic disorders, but this argument was not preserved for appeal and is waived.
- Reices-Colon contended she could not return to past work as a cashier or jeweler, asserting legal errors in the ALJ’s determination; she also argued the record should have been supplemented with Dr. Cheema’s files.
- The record showed evidence of improvement with treatment (e.g., chest pains improved; mood improved with Effexor; prognosis fair to good with treatment), supporting the ALJ’s findings.
- The Second Circuit affirmed, holding any step-two error was harmless, and that the plaintiff failed to meet the burden to show non-compatibility with her past work or to demonstrate reversible misinterpretation of the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Step two analysis sufficiency | Reices-Colon argues the ALJ erred by excluding anxiety/panic disorders at step two. | Astrue contends any error was preserved or harmless given other severe impairments identified and consideration later. | Harmless error; step-two findings supported by other severe impairments. |
| Past work capability | Reices-Colon asserts the ALJ erred in finding she could return to past jobs. | Astrue contends claimant bears burden to show inability to perform past work; argument waived if not raised below. | Waived and, in any case, failed on record evidence showing she could perform past work. |
| Record interpretation and supplementation | Reices-Colon claims the ALJ misinterpreted the record and should have supplemented with Dr. Cheema’s files. | Astrue argues substantial evidence supports improvement; no missing material records identified. | Supported by substantial evidence; no error in record development or supplementation. |
Key Cases Cited
- Moran v. Astrue, 569 F.3d 108 (2d Cir. 2009) (defines substantial evidence as more than a scintilla and reasonable support for the decision)
- Zabala v. Astrue, 595 F.3d 402 (2d Cir. 2010) (harmless error when consideration of evidence would not change outcome)
- Poupore v. Astrue, 566 F.3d 303 (2d Cir. 2009) (preservation requirement for arguments raised on appeal; waiver if not raised below)
- Diaz v. Shalala, 59 F.3d 307 (2d Cir. 1995) (burden on claimant to prove inability to perform past work)