13-2684-cv
Lipp v. Colvin


                              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.

       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 3rd day of June, two thousand fourteen.

PRESENT:
                 GUIDO CALABRESI,
                 JOSÉ A. CABRANES,
                 DEBRA ANN LIVINGSTON,
                              Circuit Judges.

_____________________________________

STEPHEN L. LIPP,

                 Petitioner-Appellant,

                         v.                                        No. 13-2684-cv

CAROLYN W. COLVIN, ACTING COMMISSIONER OF
SOCIAL SECURITY,

            Respondent-Appellee.
_____________________________________

FOR PETITIONER-APPELLANT:                           JAYA A. SHURTLIFF, Law Offices of Kenneth
                                                    Hiller, PLLC, Amherst, NY.



FOR DEFENDANT-APPELLEE:                             TOMASINA DIGRIGOLI, (Stephen P. Conte,
                                                    Office of the General Counsel, Social Security
                                                    Administration, William J. Hochul, Jr., United
                                                1
                                                            States Attorney, Western District of New
                                                            York, Buffalo, NY, on the brief) Special
                                                            Assistant United States Attorney, United
                                                            States Social Security Administration, New
                                                            York, NY.

       Appeal from a judgment of the United States District Court for the Western District of New
York (Michael A. Telesca, Judge).

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

         Petitioner Stephen L. Lipp (“Lipp”) appeals from a judgment upholding the decision of the
Commissioner of Social Security, Michael J. Astrue (the “Commissioner”),1 that Lipp was not
entitled to disability benefits under the Social Security Act (the “Act”).
         Lipp suffered injuries to his back and neck after falling at work in August of 2005. On
January 10, 2006, Lipp filed an application for disability benefits, which was denied. Lipp then
requested a hearing before an administrative law judge (“ALJ”), which took place on April 11, 2008,
during which Lipp was represented by counsel. On June 3, 2008, the ALJ denied Lipp’s claim. Lipp
requested review by the Appeals Council, which denied his request on February 19, 2009. Lipp then
appealed to the District Court, which entered judgment for the Commissioner on May 8, 2013. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
         We review an order granting judgment on the pleadings, pursuant to Federal Rule of Civil
Procedure 12(c), de novo. See Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003). Our review of a
denial of social security disability benefits focuses on the administrative ruling rather than the district
court’s decision. See Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004). We evaluate whether the
decision was “supported by substantial evidence,” which means “more than a mere scintilla . . . [and
as much as] a reasonable mind might accept as adequate to support a conclusion.” Id. (internal
quotation marks omitted). We also determine whether incorrect legal standards were applied. See
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).
         On appeal, Lipp argues that the ALJ erred by not following the “treating physician rule,”
which “generally requires a measure of deference to the medical opinion of a claimant’s treating
physician.” Halloran, 362 F.3d at 31. Lipp also alleges that the ALJ erred by not re-contacting his
treating physicians, by improperly assessing his credibility, and by determining that he was not
disabled within the meaning of the Act.


        1
         Carolyn W. Colvin became the Acting Commissioner of Social Security in February of 2014, and
accordingly has been substituted as the appellee in this action; accordingly, we direct the Clerk’s Office to
amend the caption as indicated above. When we refer to “Commissioner,” we refer to the office and to its
occupant at the relevant time.
                                                       2
        The Act defines a “disability” as an “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). A Social Security Administration regulation promulgated by the
Commissioner created a five-step evaluation process that is used to determine if a claimant is
entitled to disability benefits. See 20 C.F.R. § 404.1520(a)(4). Applying that process, the ALJ found
that Lipp suffered from “right shoulder and cervical spine dysfunction” which constituted a “severe
combination of impairments,” JA15, but that he nevertheless “had the residual functional capacity to
perform light work” of a type “that existed in significant numbers in the national economy.” JA17,
19.
        Having conducted a plenary review of the administrative record, we conclude that the
Commissioner’s decision was supported by substantial evidence, and did not involve an incorrect
application of legal standards. We affirm, substantially for the reasons articulated by the District
Court in its Decision and Order. See Lipp v. Astrue, No. 10 Civ. 0398, 2013 WL 1908036 (W.D.N.Y.
May 7, 2013).

                                          CONCLUSION

       We have considered all of Lipp’s arguments on appeal and find them to be without merit.
Accordingly, we AFFIRM the May 8, 2013 decision of the District Court.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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