     09-2221-cv
     Comins v. Astrue


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                             AMENDED 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
     York, on the 15th day of April, two thousand ten.

     PRESENT:
                 PETER W. HALL,
                 DEBRA ANN LIVINGSTON,
                             Circuit Judges,
                 DENNY CHIN,
                             District Judge.*
     __________________________________________

     Belva Comins,

                              Plaintiff-Appellant,

                        v.                                              09-2221-cv

     Michael J. Astrue, Commissioner of Social Security,

                       Defendant-Appellee.
     ___________________________________________




              *
           The Honorable Denny Chin, United States District Judge for the Southern District of
     New York, sitting by designation.
FOR APPELLANT: HOWARD D. OLINSKY (Jaya A. Shurtliff, on the brief); Olinsky & Shurtliff,
               Syracuse, New York.

FOR APPELLEE:          ROBERT SCHRIVER , Special Assistant United States Attorney (Andreea
                       Lechleitner, Special Assistant United States Attorney, Stephen P. Conte,
                       Acting Chief Counsel, Region II, Office of the General Counsel, Social
                       Security Administration, on the brief), for Andrew T. Baxter, United States
                       Attorney for the Northern District of New York.


       Appeal from a judgment of the United States District Court for the Northern District of New

York (Scullin, J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

       Plaintiff-Appellant appeals from the district court’s March 26, 2009 order adopting the

Report & Recommendation of Magistrate Judge Lowe in its entirety, ultimately accepting the

Social Security Commissioner’s (the “Commissioner”) decision and dismissing Ms. Comins’s

complaint. We assume the parties’ familiarity with the facts, procedural history, and specification

of issues on appeal.

       We review the administrative record as a whole to determine whether there is substantial

evidence to support the Commissioner’s decision and to ensure the correct legal standards were

applied below. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). Substantial evidence is more

than a “mere scintilla”; instead the record must have “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Id. at 127 (internal quotation marks omitted).

This review focuses not on the district court opinion but on the administrative ruling. Moran v.

Astrue, 569 F.3d 108, 112 (2d Cir. 2009).




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         Appellant raises three objections to ALJ Andrus’s ruling, later adopted by the

Commissioner. We address them in order. First, Ms. Comins asserts that Dr. Vilas Patil was her

treating psychiatrist at the Oswego Hospital Behavioral Services Division, and the ALJ failed to

develop fully the record by not requesting a function-by-function analysis from Dr. Patil regarding

Ms. Comins’s employment limitations. A medical treating source—here, a psychiatrist—provides

the applicant “with medical treatment or evaluation and who has, or has had, an ongoing treatment

relationship” with the applicant. 20 C.F.R. § 404.1502. The record indicates that Dr. Patil

examined Ms. Comins only once, at her discharge from Oswego Hospital, and his assessment of her

at the time is included in the record. The only other indication of Dr. Patil’s connection with Ms.

Comins in the record is his signature on an evaluation of Ms. Comins, performed by Alan

Woodworth, which Dr. Patil signed as Woodworth’s supervisor. This sparse evidence does not

demonstrate that Dr. Patil had an “ongoing treatment relationship” with the applicant. Id. There

are numerous evaluations from other sources who actually did treat Ms. Comins’s medical

situation, and the ALJ did not err in not requesting a specific function-by-function analysis from Dr.

Patil.

         Appellant’s second, related objection to the adverse decision concerns the ALJ’s evaluation

of Ms. Comins’s potential mental impairment through the special technique identified in 20 C.F.R.

§ 416.920a. She asserts that the ALJ did not properly analyze the applicable factors as they applied

to her. The special technique requires evaluation of four areas of potential functional limitation:

“[a]ctivities of daily living; social functioning; concentration, persistence, or pace; and episodes of

decompensation.” 20 C.F.R. § 416.920a(c)(3). In our decision in Kohler v. Astrue, we determined

the ALJ did not evaluate any of the four required areas with the necessary specificity to allow for


                                                  3
“[e]ffective review by this Court.” 546 F.3d 260, 267 (2d Cir. 2008). Here, however, the ALJ’s

decision specifically expounded upon each of the four functional areas of the special technique.

Bolstered by evaluations from a variety of medical personnel who evaluated Ms. Comins, he

carefully laid out the limitations Ms. Comins would be expected to have in each area. This

objection, therefore, is without merit.

       The third objection involves the testimony of the vocational expert, which Ms. Comins

argues was improperly elicited by the ALJ’s hypothetical questions. We find no issue with the

hypotheticals posed by ALJ Andrus because they appropriately sought to probe variations of Ms.

Comins’s ability to work.

       After reviewing the issues on appeal and the not insubstantial record of all the proceedings

below, we affirm for substantially the reasons articulated by the district court in its order and

opinion.

       Accordingly, the judgment of the district court is AFFIRMED.



                                              FOR THE COURT:

                                              Catherine O’Hagan Wolfe, Clerk




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