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Selvi Tankisi v. Commissioner of Social Security

April 2, 2013

SELVI TANKISI, PLAINTIFF-APPELLANT,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE,



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

12-1398

Tankisi v. Commissioner of Social Security

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,

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 inadequate development 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 in the 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 ...


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