20-1472 

Curry v. Comm’r of Social Security

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 TO 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 May, two thousand twenty-one.

PRESENT:

BARRINGTON D. PARKER,

SUSAN L. CARNEY,

STEVEN J. MENASHI,

Circuit Judges.

_________________________________________

JAMES BERNARD CURRY,

Plaintiff-Appellant,

v. No. 20-1472

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

_________________________________________

FOR PLAINTIFF-APPELLANT: MARY ELLEN GILL, Law Offices of 

Kenneth R. Hiller, PLLC, Amherst, NY. 

FOR DEFENDANT-APPELLEE: JOHANNY SANTANA (Ellen E. Sovern, on 

the brief), Office of the General Counsel, 

Region II, Social Security Administration, 

for James P. Kennedy, Jr., United States 
 

2

Attorney for the Western District of New 

York, Buffalo, NY.

Appeal from a judgment of the United States District Court for the Western District 

of New York (Foschio, M.J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered on March 11, 2020, is 

AFFIRMED.

James Bernard Curry appeals from a judgment of the United States District Court for 

the Western District of New York (Foschio, M.J.), which affirmed a final decision by the 

Commissioner of Social Security. In a decision dated August 8, 2017, an Administrative Law 

Judge (“ALJ”) acting on the Commissioner’s behalf denied Curry’s application for 

Supplemental Security Income (“SSI”). The ALJ found that Curry, who has a back condition,

does not qualify as disabled under the Social Security Act (the “Act”). See 42 U.S.C. § 423(d).

We assume the parties’ familiarity with the underlying facts, procedural history, and arguments 

on appeal, and refer to them only as necessary to explain our decision to affirm.

In deciding an appeal from a denial of disability benefits, we conduct a plenary review 

of the administrative record and ruling. See Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019). 

We will not set aside the Commissioner’s disability determination unless we find that it is based 

on either legal error or factual findings that are unsupported by substantial evidence. The 

“substantial evidence” standard “means—and means only—such relevant evidence as a 

reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 

139 S. Ct. 1148, 1154 (2019).1 “[I]t is . . . a very deferential standard of review—even more so 

than the ‘clearly erroneous’ standard.” Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 

(2d Cir. 2012) (per curiam). In particular, it requires our deference “to the Commissioner’s 

resolution of conflicting evidence.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012). 

On such review, we affirm the judgment of the District Court.

1 Unless otherwise noted, in quoting caselaw this Order omits all alterations, citations, footnotes, and 

internal quotation marks.
 

3

In support of his SSI claim—and central to this appeal—Curry submitted a two-page 

Medical Source Statement (the “Statement”) dated May 2, 2017. The Statement was prepared 

by Dr. David Cywinski, an orthopedist who provided medical treatment to Curry on a sporadic 

basis between October 2007 and the date of the Statement. As of May 2, 2017, Dr. Cywinski 

had last seen Curry over six months earlier. In the Statement, Dr. Cywinski opined that Curry 

could not engage in full-time competitive employment on a sustained basis. R. 521.2

Dr. Cywinski further gave his view (through a checkbox form) that if Curry were to work on 

a full-time basis, he would be “‘off-task’ or otherwise less productive” for more than thirty 

percent of the workday or workweek. Id. In the form, Dr. Cywinski indicated that his general 

opinion was based on his specific recommendation that Curry engage in “no heavy 

carrying/lifting, no bending, stooping, [words illegible] sit to stand,” and symptoms described 

as “pain” and “discomfort into R[ight] leg.” Id. Dr. Cywinski reported that as of that writing,

Curry could sit only for “about two hours” in an eight-hour working day (with normal breaks) 

and could “stand/walk” only for “about four hours” in total “since at least December 2014.” 

Id. 522. He “referred [Curry for] spine surgery.” Id. At the same time, he noted that Curry 

“should not be absent [from work] if restriction[s] were met.” Id.

The ALJ considered Dr. Cywinski’s opinion in his review of Curry’s application for 

disability benefits for the period from December 2014 through August 2017

(the “relevant period”). In the ALJ’s assessment of Curry’s residual functional capacity 

(“RFC”), the ALJ assigned only partial weight to Dr. Cywinski’s opinion and concluded that 

Curry has the RFC to perform certain “sedentary work . . . with additional exertional and 

postural limitations” as prescribed by Dr. Cywinski, and that “there are jobs that exist in 

significant numbers in the national economy that [Curry] can perform.” Special App’x 11-12, 

15. Thus, the ALJ found that during the relevant period Curry was not disabled under the Act.

2 “R.” refers to pages of the certified administrative record filed in the District Court.
 

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On appeal, Curry argues primarily that the ALJ did not give Dr. Cywinski’s opinion the 

weight it was due by law.3 In reviewing such a challenge, we consider whether the ALJ properly 

applied the two-step framework articulated in Burgess v. Astrue, 537 F.3d 117, 127-29 (2d Cir. 

2008). Under Burgess, the ALJ must (1) decide whether a treating physician’s medical opinion 

merits “controlling weight” and, (2) if it does not, then “determine how much weight, if any, 

to give it” based on certain factors such as length of treatment and type of health care provider, 

as we discuss in detail below. Estrella, 925 F.3d at 95-96; see Burgess, 537 F.3d at 129. At both 

steps, an ALJ must provide “good reasons” for its decision. Estrella, 925 F.3d at 96.

Reviewing the ALJ’s step one decision, we conclude that the ALJ did not err by

declining to assign controlling weight to Dr. Cywinski’s opinion. Under the “treating physician 

rule,” Dr. Cywinski’s opinion regarding the “nature and severity” of Curry’s impairment is 

entitled to controlling weight only “so long as it is well-supported by medically acceptable 

clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial 

evidence in the case record.” Burgess, 537 F.3d at 128; see also 20 C.F.R. § 416.927(c)(2); 

see generally Biestek, 139 S. Ct. at 1157 (instructing that “determining the substantiality of 

evidence” requires a “case-by-case” inquiry). In Curry’s case, the ALJ explained that his 

decision to assign less than controlling weight to Dr. Cywinski’s statement rested on 

substantial gaps in Curry’s treatment by Dr. Cywinski over the relevant period; evidence that 

the pain caused by Curry’s alleged impairment responded to treatment; Curry’s own statements 

and record of independent activities; and treatment notes by Dr. Cywinski and others.

Considered together, as the ALJ found, these observations undercut Dr. Cywinski’s May 2017 

summary statement. See 20 C.F.R. § 416.945(a). We therefore conclude that substantial 

3 Curry also argues that the ALJ committed reversible error by basing its RFC determination on its own lay 

opinion rather than on record medical evidence. We reject this argument. An RFC finding is administrative in 

nature, not medical, and its determination is within the province of the ALJ, as the Commissioner’s 

regulations make clear. 20 C.F.R. § 404.1527(d)(2). The ALJ did not draw medical conclusions; instead, and 

pursuant to his statutory authority, the ALJ considered the medical and other evidence in the record in its 

totality to reach an RFC determination. See, e.g., 20 C.F.R. §§ 416.927(c)(3), 416.945(a); see also

id. § 404.1545(a)(3) (“We will consider any statements about what you can still do that have been provided by 

medical sources, whether or not they are based on formal medical examinations.”).
 

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evidence supports the ALJ’s finding that Dr. Cywinski’s opinion is not entitled to controlling 

weight.

Looking next at how much weight Dr. Cywinski’s opinion merited, at step two of the 

Burgess analysis an “ALJ must consider, inter alia, the length of the treatment relationship and 

the frequency of examination; the nature and extent of the treatment relationship; the relevant 

evidence . . . , particularly medical signs and laboratory findings, supporting the opinion; the 

consistency of the opinion with the record as a whole; and whether the physician is a specialist 

in the area covering the particular medical issues.” Burgess, 537 F.3d at 129; see also 20 C.F.R. 

§ 404.1527(c). We identify no error in the ALJ’s analysis of these factors and determination of

the weight to afford to Dr. Cywinski’s opinion.

Again, the ALJ provided good reasons for his decision to give Dr. Cywinski’s opinion 

partial weight. In a satisfactory functional application of the Burgess factors, the ALJ considered 

the fact that Dr. Cywinski is an orthopedic specialist, which favored giving his view some 

weight. The ALJ also considered the length, nature, and extent of the treatment relationship 

between Curry and Dr. Cywinski: although Dr. Cywinski had begun seeing Curry in October 

2007, the record as a whole revealed “large gaps in [Curry’s] orthopedic treatment.” Special 

App’x 15. Particularly, in the six months before Dr. Cywinski rendered the May 2017 opinion 

that became central here, Curry had not consulted with Dr. Cywinski at all, again undercutting 

the weight due that opinion. Id.

The ALJ also considered the amount and quality of evidence supporting Dr. Cywinski’s 

May 2017 opinion and whether the opinion was consistent with the relevant record evidence. 

In affording reduced weight to the opinion, the ALJ cited various treatment records that

undermined Dr. Cywinski’s statement. Id. 14 (citing the administrative record). For example,

the evidence that the ALJ identified as inconsistent shows that in October 2016, Dr. Cywinski 

considered Curry to be “doing well enough at this time to do nothing further” and that Curry 

himself then informed Dr. Cywinski that “he is at the point now where he wants nothing 

further done.” R. 429. This evidence cannot easily be squared with Dr. Cywinski’s May 2017

opinion that Curry’s impairments had been consistently severe since “at least December 

2014.” Id. 522. In addition, the ALJ focused on the observation that the medical record 
 

6

“reflect[ed] that overall, [Curry] had full muscle strength of his lower extremities and negative 

straight leg raising-tests,” Special App’x 14, a finding that the ALJ reasonably found in tension 

with the May 2017 assessment. Accordingly, we are satisfied that the ALJ adequately supported 

his step-two conclusion.

Finally, we deny Curry’s request for further development of the administrative record 

because he has failed to show that the record is not complete. See Rosa v. Callahan, 168 F.3d 

72, 79 n.5 (2d Cir. 1999). Because we sustain the ALJ’s determination that Curry was not 

disabled during the relevant period, we reject as moot Curry’s request for a remand for

calculation and payment of benefits.

* * *

We have considered Curry’s remaining arguments and find in them no basis for 

reversal. For the foregoing reasons, the judgment of the District Court is AFFIRMED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court