Tankisi v. Comm'r of Soc. Sec.

SELVI TANKISI, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee,

No. 12-1398-cv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Dated: April 2, 2013

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 2nd day of April, two thousand thirteen.

PRESENT:

CHESTER J. STRAUB,

PETER W. HALL,

CHRISTOPHER F. DRONEY,

Circuit Judges,

FOR APPELLANT:

KAREN S. SOUTHWICK, Olinsky Law Group,

Syracuse, NY

FOR APPELLEE:

THOMAS C. GRAY, Special Assistant United States

Attorney (Stephen P. Conte, Regional Chief Counsel, Region II, on the brief), Joseph J. Karaszewski, Assistant United States Attorney, for

William J. Hochul, Jr., United States Attorney for

the Western District of New York, Buffalo, NY

Appeal from a judgment of the United States District Court for the Western District of New York (David G. Larimer, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Plaintiff-appellant Selvi Tankisi appeals from the district court's judgment entered March 15, 2012. The judgment was based on the district court's March 14, 2012 order granting summary judgment in favor of defendant-appellee Commissioner of Social Security (the "Commissioner"). Tankisi v. Comm'r of Soc. Sec., 847 F. Supp. 2d 513, 519 (W.D.N.Y. 2012). We assume the parties' familiarity with the underlying facts and procedural history of the case, as well as the issues presented for review.

On January 9, 2007, Tankisi applied for disability insurance benefits and supplemental security income benefits under Title II of the Social Security Act, claiming an inability to work since a motor vehicle accident on March 9, 2006. The application was denied initially and, following a hearing before an Administrative Law Judge ("ALJ"), denied again on July 20, 2009. On May 21, 2010, the Appeals Council of the Office of Disability Adjudication and Review denied review of her application. The district court ruled in favor of the Commissioner below, and this appeal followed.

On appeal, Tankisi argues (1) that the interpreter provided at the hearing before the ALJ was ineffective, thus denying her a full and fair hearing; (2) that the ALJ should have ordered a consultative intelligence examination, and that his failure to do so resulted in inadequatedevelopment of the record; (3) that the ALJ's determination of her residual functional capacity ("RFC") was not supported by substantial evidence and was legally erroneous; and (4) that the ALJ's assessment of the credibility of Tankisi's testimony was not supported by substantial evidence and was based on factual errors.

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." Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation marks omitted). "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." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks omitted). "It is not our function to determine de novo whether [a plaintiff] is disabled." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)).

1. Inadequate Interpreter Issues

Tankisi, whose first and primary language is Turkish, claims that the interpreter provided at her hearing was ineffective, denying her a full and fair hearing. Under the Social Security Administration's Program Operations Manual System ("POMS"), the Administration is to provide a qualified interpreter free of charge to any claimant with limited English proficiency. See POMS Section DI 23040.001 (Sep. 27, 2012), available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0423040001. A qualified interpreter must "[p]rovide[] an accurate interpretation of questions and responses by both the individual being interviewed and the DDS staff member." Id. A violation of the interpreter policy can result inthe denial of a full and fair hearing. See, e.g., Alvarez v. Comm'r of the Soc. Sec. Admin., No. 10-890 (JBS), 2011 WL 2600712, at *3 (D.N.J. June 28, 2011); DiPaolo v. Barnhart, No. 01-cv-3123, 2002 WL 257676, at *8-10 (E.D.N.Y. Feb. 8, 2002).

Tankisi's claim of inadequate interpretation is unavailing. In DiPaolo, a petitioner who "hardly spoke" English was denied an interpreter altogether; the resulting hearing transcript contained numerous non-responsive and incomplete answers. DiPaolo, 2002 WL 257676, at *5-6. By contrast, Tankisi was provided with interpretation services via telephone, and the record shows that her answers were generally responsive to the questions put to her. Tankisi understood the English translations, and spoke up when she felt that the translation was inaccurate. Although the hearing was also conducted remotely by video, with the ALJ in one place, Tankisi and her attorney in another, and the interpreter joining via telephone, the ALJ obtained the approval of Tankisi's attorney before proceeding, and stated that if there was a problem with the translation, the hearing could be rescheduled. Tankisi suggests that it was "unreasonable to expect" her attorney to recognize when she "failed to fully understand" the proceedings. Appellant's Br. at 21-22. However, Tankisi's attorney, who was present and questioned Tankisi in person, would have been able to recognize if Tankisi did not understand the proceedings. Tankisi's attorney did not object to the arrangement at any time.

Moreover, Tankisi has failed to explain how she was disadvantaged by any interpretation issues. See Alvarez, 2011 WL 2600712, at *4; cf. Boa Jun Liu v. Holder, 478 F. App'x 692, 695 (2d Cir. 2012) (summary order) (no due process violation and no prejudice in immigration hearing where "alleged mistranslations did not result in any significant loss of meaning"); Zaien Chen v. Mukasey, 271 F. App'x 104, 105-06 (2d Cir. 2008) (summary order) (no due processviolation where petitioner failed to identify a mistranslation touching on a dispositive issue at immigration hearing). Although Tankisi asserts that difficulties with the translation prevented her from fully stating her position, she has not identified a specific point that she was unable to present or understand at the hearing. Indeed, at the close of the hearing, the ALJ gave Tankisi's counsel an opportunity to ask further questions, and thus ensure that the entirety of Tankisi's position was on the record. As a result, the arrangement with the interpreter and his services did not result in a denial of a full and fair hearing.

2. Comprehensive Intelligence Examination

Tankisi also argues that the ALJ failed to develop the record adequately by failing to order a consultative intelligence examination. A consultative examination is used to "try to resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient to allow [the ALJ] to make a determination or decision" on the claim. 20 C.F.R. §§ 404.1519a(b), 416.919a(b). It can be reversible error for an ALJ not to order a consultative examination when an examination is required for an informed decision. See Falcon v. Apfel, 88 F. Supp. 2d 87, 91 (W.D.N.Y. 2000). However, an ALJ is not required to order a consultative examination if the facts do not warrant or suggest the need for it. Lefever v. Astrue, 5:07-cv-622 (NAM/DEP), 2010 WL 3909487, at *7 (N.D.N.Y. Sept. 30, 2010), aff'd 443 F. App'x 608 (2d Cir. 2011); see also Yancey v. Apfel, 145 F.3d 106, 114 (2d Cir. 1998) (ALJ did not neglect duty to develop record by failing to order consultative psychological examination where the only evidence suggesting an issue was doctor's statement to plaintiff that the problems were "in her head").

Tankisi suggests that intelligence testing was warranted because Dr. Zax, a state agency consultative examiner, indicated that Tankisi's attention, concentration, and memory wereimpaired. Dr. Zax also stated that "[i]ntellectually, she is borderline to deficient," and that "she is probably somewhat limited intellectually." Tankisi argues that a proper assessment of her cognitive abilities might have resulted in a different RFC finding, and might have qualified her as disabled under Listing 12.05(C).

The record does not support Tankisi's argument. Although Dr. Zax stated, "I think [Tankisi] is probably somewhat limited intellectually," he went on to state that "for the most part the problems that her husband described are connected with her general life situation and her lack of finances and general unhappiness in dealing with her children. My feeling is the examination results are probably not consistent with her allegations." An examination of Tankisi on January 12, 2007 showed "no evidence of neurologic or motor deficit," and Tankisi herself testified that she could handle such tasks as balancing a checkbook. Given the voluminous record in this case, the ALJ was not obligated to order a consultative intelligence examination to supplement the record in response to a few stray remarks unsupported by other record evidence and not alleged by Tankisi as a potential disability.

Although Tankisi...