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.
2 

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. 
3 

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