09-2221-cv
Comins v. Astrue
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 15th day of April, two thousand ten.
PRESENT:
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges,
DENNY CHIN,
District Judge.*
__________________________________________
Belva Comins,
Plaintiff-Appellant,
v. 09-2221-cv
Michael J. Astrue, Commissioner of Social Security,
Defendant-Appellee.
___________________________________________
*
The Honorable Denny Chin, United States District Judge for the Southern District of
New York, sitting by designation.
FOR APPELLANT: HOWARD D. OLINSKY (Jaya A. Shurtliff, on the brief); Olinsky & Shurtliff,
Syracuse, New York.
FOR APPELLEE: ROBERT SCHRIVER , Special Assistant United States Attorney (Andreea
Lechleitner, Special Assistant United States Attorney, Stephen P. Conte,
Acting Chief Counsel, Region II, Office of the General Counsel, Social
Security Administration, on the brief), for Andrew T. Baxter, United States
Attorney for the Northern District of New York.
Appeal from a judgment of the United States District Court for the Northern District of New
York (Scullin, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court be AFFIRMED.
Plaintiff-Appellant appeals from the district court’s March 26, 2009 order adopting the
Report & Recommendation of Magistrate Judge Lowe in its entirety, ultimately accepting the
Social Security Commissioner’s (the “Commissioner”) decision and dismissing Ms. Comins’s
complaint. We assume the parties’ familiarity with the facts, procedural history, and specification
of issues on appeal.
We review the administrative record as a whole to determine whether there is substantial
evidence to support the Commissioner’s decision and to ensure the correct legal standards were
applied below. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008). Substantial evidence is more
than a “mere scintilla”; instead the record must have “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. at 127 (internal quotation marks omitted).
This review focuses not on the district court opinion but on the administrative ruling. Moran v.
Astrue, 569 F.3d 108, 112 (2d Cir. 2009).
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Appellant raises three objections to ALJ Andrus’s ruling, later adopted by the
Commissioner. We address them in order. First, Ms. Comins asserts that Dr. Vilas Patil was her
treating psychiatrist at the Oswego Hospital Behavioral Services Division, and the ALJ failed to
develop fully the record by not requesting a function-by-function analysis from Dr. Patil regarding
Ms. Comins’s employment limitations. A medical treating source—here, a psychiatrist—provides
the applicant “with medical treatment or evaluation and who has, or has had, an ongoing treatment
relationship” with the applicant. 20 C.F.R. § 404.1502. The record indicates that Dr. Patil
examined Ms. Comins only once, at her discharge from Oswego Hospital, and his assessment of her
at the time is included in the record. The only other indication of Dr. Patil’s connection with Ms.
Comins in the record is his signature on an evaluation of Ms. Comins, performed by Alan
Woodworth, which Dr. Patil signed as Woodworth’s supervisor. This sparse evidence does not
demonstrate that Dr. Patil had an “ongoing treatment relationship” with the applicant. Id. There
are numerous evaluations from other sources who actually did treat Ms. Comins’s medical
situation, and the ALJ did not err in not requesting a specific function-by-function analysis from Dr.
Patil.
Appellant’s second, related objection to the adverse decision concerns the ALJ’s evaluation
of Ms. Comins’s potential mental impairment through the special technique identified in 20 C.F.R.
§ 416.920a. She asserts that the ALJ did not properly analyze the applicable factors as they applied
to her. The special technique requires evaluation of four areas of potential functional limitation:
“[a]ctivities of daily living; social functioning; concentration, persistence, or pace; and episodes of
decompensation.” 20 C.F.R. § 416.920a(c)(3). In our decision in Kohler v. Astrue, we determined
the ALJ did not evaluate any of the four required areas with the necessary specificity to allow for
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“[e]ffective review by this Court.” 546 F.3d 260, 267 (2d Cir. 2008). Here, however, the ALJ’s
decision specifically expounded upon each of the four functional areas of the special technique.
Bolstered by evaluations from a variety of medical personnel who evaluated Ms. Comins, he
carefully laid out the limitations Ms. Comins would be expected to have in each area. This
objection, therefore, is without merit.
The third objection involves the testimony of the vocational expert, which Ms. Comins
argues was improperly elicited by the ALJ’s hypothetical questions. We find no issue with the
hypotheticals posed by ALJ Andrus because they appropriately sought to probe variations of Ms.
Comins’s ability to work.
After reviewing the issues on appeal and the not insubstantial record of all the proceedings
below, we affirm for substantially the reasons articulated by the district court in its order and
opinion.
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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