         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




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