11-1535-cv Akey v. Astrue **UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 
**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 13 thday of March, two thousand and twelve. 4 5 PRESENT: JOSEPH M. McLAUGHLIN, 6 BARRINGTON D. PARKER, 7 RICHARD C. WESLEY, 8 Circuit Judges

. 9 10 11 12 GLENFORD S. AKEY, 13 14 Plaintiff-Appellant , 15 16 -v.- 11-1535-cv 17 18 MICHAEL J. ASTRUE, Commissioner of Social 19 Security, 20 21 Defendant-Appellee. 22 23 24 FOR APPELLANT: Howard D. Olinsky (Jaya A. Shurtliff, on 25 the brief ), Olinsky Law Group, Syracuse, 26 NY. 27 28 FOR APPELLEE: Robert R. Schriver, Special Assistant 29 United States Attorney, Stephen P. Conte, 30 Regional Chief Counsel, Office of the 31 General Counsel, Social Security 32 Administration, for Richard S. Hartunian, 33United States Attorney for the Northern 1 District of New York, Syracuse, NY. 2 3 Appeal from the United States District Court for the 4 Northern District of New York (Mordue, J. ). 5 6 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 7
**AND DECREED**that the judgment of the United States District 8 Court for the Northern District of New York be **AFFIRMED**
. 9 Appellant Glenford Akey appeals from a judgment of the 10 United States District Court for the Northern District of 11 New York (Mordue, J. ), which affirmed the Commissioner of 12 Social Security’s decision denying his application for 13 Supplemental Security Income and Disability Insurance 14 Benefits. We assume the parties’ familiarity with the 15 underlying facts, the procedural history, and the issues 16 presented for review. 17 “When deciding an appeal from a denial of . . . 18 benefits, [this Court] focus[es] on the administrative 19 ruling rather than the district court’s opinion.” Acierno 20 v. Barnhart , 475 F.3d 77, 80 (2d Cir. 2007) (internal 21 quotation marks omitted). Our review is deferential, and we 22 set aside the Commissioner’s determination only where such 23 determination “is based upon legal error or not supported by 24 substantial evidence.” Berry v. Schweiker , 675 F.2d 464, 25

2467 (2d Cir. 1982) ( per curiam ). “Failure to apply the 1 correct legal standard constitutes reversible error, 2 including, in certain circumstances, failure to adhere to 3 the applicable regulations.” Kohler v. Astrue , 546 F.3d 4 260, 265 (2d Cir. 2008) (internal citations omitted). 5 Substantial evidence means “such relevant evidence as a 6 reasonable mind might accept as adequate to support a 7 conclusion.” Curry v. Apfel , 209 F.3d 117, 122 (2d Cir. 8 2000), superceded by statute on other grounds , 20 C.F.R. § 9 404.1560(c)(2) (internal quotation marks omitted). 10 Akey contends that (1) the Administrative Law Judge 11 (“ALJ”) erred in assessing his mental Residual Functional 12 Capacity (“RFC”); (2) the ALJ erred in assessing his 13 physical RFC; (3) the ALJ improperly relied on a flawed 14 hypothetical posed to the vocational expert; and (4) the ALJ 15 committed error in finding that Akey’s testimony regarding 16 the intensity, persistence, and limitations associated with 17 his pain and other symptoms was not “entirely credible.” 18 Each of Akey’s arguments is taken in turn. 19 First, substantial evidence supports the ALJ’s 20 determination that Akey was intellectually capable of 21 performing unskilled and semi-skilled work and that he 22

3suffered no other mental functional limitations for work. 1 Although Akey points to Nurse Practitioner Jacobsen’s report 2 that Akey suffered from a “marked limitation” in dealing 3 with work stress, the ALJ did not err in discounting her 4 opinion because she has no expertise in psychology or 5 psychiatry. See 20 C.F.R. §§ 404.1527(d)(5), 416.927(d)(5). 6 As to the physical RFC, Akey failed to object to the 7 magistrate judge’s determination in his Report and 8 Recommendation that Akey’s physical RFC was supported by 9 substantial evidence. Because Akey’s argument does not have 10 “substantial merit,” we decline to review the issue. See 11 Spence v. Superintendent, Great Meadow Corr. Facility , 219 12 F.3d 162, 174 (2d Cir. 2000). 13 Akey’s contention that the hypothetical questions posed 14 to the vocational expert were flawed is unavailing. The 15 ALJ’s failure to include the limitation to unskilled and 16 semi-skilled work is harmless because the only jobs the 17 vocational expert identified were unskilled or semi-skilled. 18 As such, the ALJ did not err by relying on the vocational 19 expert’s testimony as evidence that Akey could perform work 20 existing in significant numbers in the national economy. 21 Finally, the ALJ did not err in finding that Akey’s 22

4statements regarding the intensity, persistence, and 1 limiting effects of his pain and symptoms were not “entirely 2 credible.” The ALJ properly noted the relevant legal 3 standards and identified the factors supporting his 4 conclusion. Contrary to Akey’s claims, the ALJ did consider 5 Akey’s consistent earnings record in his credibility 6 analysis, but nevertheless determined that his statements 7 were not entirely credible. 8 After a thorough review of the record, we find Akey’s 9 remaining arguments to be without merit. 10 For the foregoing reasons, the judgment of the district 11 court is hereby **AFFIRMED**
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13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 16 17

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