Akey v. Astrue , 467 F. App'x 15 ( 2012 )


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  •          11-1535-cv
    Akey v. Astrue
    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.
    1            At a stated term of the United States Court of Appeals
    2       for the Second Circuit, held at the Daniel Patrick Moynihan
    3       United States Courthouse, 500 Pearl Street, in the City of
    4       New York, on the 13th day of March, two thousand and twelve.
    5
    6       PRESENT: JOSEPH M. McLAUGHLIN,
    7                BARRINGTON D. PARKER,
    8                RICHARD C. WESLEY,
    9                         Circuit Judges.
    10
    11
    12
    13       GLENFORD S. AKEY,
    14
    15                                     Plaintiff-Appellant,
    16
    17                      -v.-                                                     11-1535-cv
    18
    19       MICHAEL J. ASTRUE, Commissioner of Social
    20       Security,
    21
    22                                     Defendant-Appellee.
    23
    24
    25       FOR APPELLANT:                Howard D. Olinsky (Jaya A. Shurtliff, on
    26                                     the brief), Olinsky Law Group, Syracuse,
    27                                     NY.
    28
    29       FOR APPELLEE:                 Robert R. Schriver, Special Assistant
    30                                     United States Attorney, Stephen P. Conte,
    31                                     Regional Chief Counsel, Office of the
    32                                     General Counsel, Social Security
    33                                     Administration, for Richard S. Hartunian,
    1                       United States Attorney for the Northern
    2                       District of New York, Syracuse, NY.
    3
    4         Appeal from the United States District Court for the
    5    Northern District of New York (Mordue, J.).
    6
    7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
    8    AND DECREED that the judgment of the United States District
    9    Court for the Northern District of New York be AFFIRMED.
    10       Appellant Glenford Akey appeals from a judgment of the
    11   United States District Court for the Northern District of
    12   New York (Mordue, J.), which affirmed the Commissioner of
    13   Social Security’s decision denying his application for
    14   Supplemental Security Income and Disability Insurance
    15   Benefits.   We assume the parties’ familiarity with the
    16   underlying facts, the procedural history, and the issues
    17   presented for review.
    18       “When deciding an appeal from a denial of . . .
    19   benefits, [this Court] focus[es] on the administrative
    20   ruling rather than the district court’s opinion.”   Acierno
    21   v. Barnhart, 
    475 F.3d 77
    , 80 (2d Cir. 2007) (internal
    22   quotation marks omitted).   Our review is deferential, and we
    23   set aside the Commissioner’s determination only where such
    24   determination “is based upon legal error or not supported by
    25   substantial evidence.”   Berry v. Schweiker, 
    675 F.2d 464
    ,
    2
    1    467 (2d Cir. 1982) (per curiam).   “Failure to apply the
    2    correct legal standard constitutes reversible error,
    3    including, in certain circumstances, failure to adhere to
    4    the applicable regulations.”   Kohler v. Astrue, 
    546 F.3d 5
       260, 265 (2d Cir. 2008) (internal citations omitted).
    6    Substantial evidence means “such relevant evidence as a
    7    reasonable mind might accept as adequate to support a
    8    conclusion.”   Curry v. Apfel, 
    209 F.3d 117
    , 122 (2d Cir.
    9    2000), superceded by statute on other grounds, 
    20 C.F.R. § 10
       404.1560(c)(2) (internal quotation marks omitted).
    11       Akey contends that (1) the Administrative Law Judge
    12   (“ALJ”) erred in assessing his mental Residual Functional
    13   Capacity (“RFC”); (2) the ALJ erred in assessing his
    14   physical RFC; (3) the ALJ improperly relied on a flawed
    15   hypothetical posed to the vocational expert; and (4) the ALJ
    16   committed error in finding that Akey’s testimony regarding
    17   the intensity, persistence, and limitations associated with
    18   his pain and other symptoms was not “entirely credible.”
    19   Each of Akey’s arguments is taken in turn.
    20       First, substantial evidence supports the ALJ’s
    21   determination that Akey was intellectually capable of
    22   performing unskilled and semi-skilled work and that he
    3
    1    suffered no other mental functional limitations for work.
    2    Although Akey points to Nurse Practitioner Jacobsen’s report
    3    that Akey suffered from a “marked limitation” in dealing
    4    with work stress, the ALJ did not err in discounting her
    5    opinion because she has no expertise in psychology or
    6    psychiatry.   See 
    20 C.F.R. §§ 404.1527
    (d)(5), 416.927(d)(5).
    7        As to the physical RFC, Akey failed to object to the
    8    magistrate judge’s determination in his Report and
    9    Recommendation that Akey’s physical RFC was supported by
    10   substantial evidence.   Because Akey’s argument does not have
    11   “substantial merit,” we decline to review the issue.     See
    12   Spence v. Superintendent, Great Meadow Corr. Facility, 219
    
    13 F.3d 162
    , 174 (2d Cir. 2000).
    14       Akey’s contention that the hypothetical questions posed
    15   to the vocational expert were flawed is unavailing.     The
    16   ALJ’s failure to include the limitation to unskilled and
    17   semi-skilled work is harmless because the only jobs the
    18   vocational expert identified were unskilled or semi-skilled.
    19   As such, the ALJ did not err by relying on the vocational
    20   expert’s testimony as evidence that Akey could perform work
    21   existing in significant numbers in the national economy.
    22       Finally, the ALJ did not err in finding that Akey’s
    4
    1    statements regarding the intensity, persistence, and
    2    limiting effects of his pain and symptoms were not “entirely
    3    credible.”    The ALJ properly noted the relevant legal
    4    standards and identified the factors supporting his
    5    conclusion.    Contrary to Akey’s claims, the ALJ did consider
    6    Akey’s consistent earnings record in his credibility
    7    analysis, but nevertheless determined that his statements
    8    were not entirely credible.
    9        After a thorough review of the record, we find Akey’s
    10   remaining arguments to be without merit.
    11       For the foregoing reasons, the judgment of the district
    12   court is hereby AFFIRMED.
    13
    14                                 FOR THE COURT:
    15                                 Catherine O’Hagan Wolfe, Clerk
    16
    17
    5