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

New York, on the 13th 4 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

5