12-1702-cv
McKinstry v. Soc. Sec. Admin.


                                     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 14th
day of February, two thousand thirteen.

PRESENT:
            JOHN M. WALKER, JR.,
            JOSÉ A. CABRANES,
            RICHARD C. WESLEY,
                         Circuit Judges.
_____________________________________

DAVID J. MCKINSTRY,

                    Plaintiff-Appellant,

                                v.                                   No. 12-1702-cv

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER
MICHAEL J. ASTRUE,

            Defendant-Appellee.
_____________________________________

FOR PLAINTIFF-APPELLANT:                              ANTHONY B. LAMB (Kathleen Donahue, on the
                                                      brief), Law Office of Anthony B. Lamb,
                                                      Williston, VT.

FOR DEFENDANT-APPELLEE:                               SUSAN D. BELLER, Assistant United States
                                                      Attorney (Carol L. Shea, Assistant United
                                                      States Attorney, on the brief), for Tristram J.
                                                      Coffin, United States Attorney, United States
                                                      Attorney’s Office for the District of Vermont.
        Appeal from a February 23, 2012 Opinion and Order of the United States District Court for
the District of Vermont (Christina Reiss, Chief Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s February 23, 2012 Opinion and Order
is AFFIRMED.

        David McKinstry appeals from a February 23, 2012 Opinion and Order of the District Court
adopting in part Magistrate Judge John M. Conroy’s Report and Recommendation and affirming the
final determination of the Commissioner of Social Security (the “Commissioner”) that McKinstry
was ineligible for disability insurance benefits under the Social Security Act. The Commissioner’s
final determination was based on a finding by an Administrative Law Judge (“ALJ”) that McKinstry
was not disabled and had the residual functional capacity to perform light work as defined in 20
C.F.R. § 404.1567(b). We assume the parties’ familiarity with the underlying facts, the procedural
history of this case, and the issues on appeal.

                                           DISCUSSION

         “When a district court has reviewed a determination of the Commissioner, we review the
administrative record de novo to determine whether there is substantial evidence supporting the
Commissioner’s decision and whether the Commissioner applied the correct legal standard.” Poupore
v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (internal quotation marks and alteration 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.” Burgess v. Astrue, 537 F.3d 117,
127 (2d Cir. 2008) (internal quotation marks omitted).

        Under the Social Security Act, a “disability” is 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). To determine whether an individual is disabled,
the Social Security Administration Commission created a five-step sequential evaluation process. 20
C.F.R. § 404.1520. To qualify for benefits, McKinstry must have been disabled within the meaning
of the Social Security Act between the alleged onset date (August 20, 2003) through the date of last
insured (June 30, 2006). See Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008).

        On appeal, McKinstry contends that the Commissioner’s final determination should be
reversed because the ALJ erred by: (1) failing to discuss the June 2010 opinion of Rick Dooley, a
physician’s assistant; and (2) concluding that McKinstry’s testimony regarding his physical limitations
was not credible.

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         After a review of the record, we are convinced that any alleged error caused by the ALJ’s
failure to discuss Dooley’s June 2010 opinion was harmless substantially for the reasons outlined in
the District Court’s careful and comprehensive Opinion and Order. See Zabala v. Astrue, 595 F.3d
402, 410 (2d Cir. 2010) (finding harmless error existed where there was “no reasonable likelihood
that [the ALJ’s] consideration of the same doctor’s 2002 report would have changed the ALJ’s
determination that Petitioner was not disabled during the closed period”).

         We are also not persuaded by McKinstry’s argument that the ALJ lacked substantial evidence
to conclude that his testimony regarding his physical limitations was not credible. See Aponte v. Sec’y,
Dep’t of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (“It is the function of the
[Commissioner], not [the reviewing courts], to resolve evidentiary conflicts and to appraise the
credibility of witnesses, including the claimant.”) (second alteration in original) (internal quotation
marks omitted). Much of McKinstry’s testimony before the ALJ on June 21, 2010 was phrased in
the present tense―and thus described his limitations outside of the relevant period. See, e.g., JA 45,
47, 49. Moreover, McKinstry does not challenge the ALJ’s reliance on his activities, medical
treatment history, and continued work activities during the relevant period, which were inconsistent
with much of his testimony before the ALJ. See Carvey v. Astrue, 380 F. App’x 50, 53-54 (2d Cir.
2010). On this record, we identify no error with the ALJ’s credibility findings or the reliance of the
Commissioner and the District Court on those findings.

                                          CONCLUSION

       We have considered all of McKinstry’s arguments on appeal and find them to be without
merit. Accordingly, we AFFIRM the District Court’s February 23, 2012 Opinion and Order.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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