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19‐982‐cv
Hyshaw v. Comm’r Soc. Sec.

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 ASUMMARY 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, 1
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2
City of New York, on the 19
th
day of March, two thousand twenty. 3
4
PRESENT: BARRINGTON D. PARKER, 5
RAYMOND
J. LOHIER, JR., 6
Circuit Judges, 7
RICHARD K. EATON,* 8
Judge. 9
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LATIFKA SHEREDA HYSHAW, 11
12
Plaintiff‐Appellant,
13
14
v. No. 19‐982‐cv 15
16
COMMISSIONER OF SOCIAL SECURITY,
17
18
Defendant‐Appellee. 19
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FOR PLAINTIFF‐APPELLANT: B
RANDI SMITH, Law Offices of 21
Kenneth R. Hiller, PLLC, 22
Amherst, NY. 23
24

* Judge Richard K. Eaton, of the United States Court of International Trade, sitting by
designation.

2
FOR DEFENDANT‐APPELLEE: DANIELLA M. CALENZO, Special 1
Assistant United States 2
Attorney (Ellen E. Sovern, 3
Regional Chief Counsel—4
Region II, Office of the General 5
Counsel, Social Security 6
Administration, New York, NY, 7
on the brief), for James P. 8
Kennedy, Jr., United States 9
Attorney for the Western 10
District of New
York, Buffalo, 11
NY.
12
Appeal from a judgment of the United States District Court for the Western 13
District of New York (William B. Mitchell Carter, Magistrate Judge). 14
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 15
AND DECREED that the judgment of the District Court is AFFIRMED. 16
Latifka Hyshaw appeals
from a judgment of the District Court (Carter, M.J.) 17
affirming a decision of the Commissioner of Social Security to deny Hyshaw’s 18
request for disability benefits. On appeal, Hyshaw principally argues that 19
the Administrative Law Judge (ALJ) “erred by failing to develop the record with 20
a formal intelligence examination,” Appellant’s Br. 1, and that the ALJ’s 21

conclusions as to Hyshaw’s Residual Functional Capacity (RFC) were not 22
supported by substantial evidence. We assume the parties’ familiarity with the 23
underlying facts and the record of prior proceedings, to which we refer only as 24
necessary to explain our decision to affirm. 25

3
1. Additional Intelligence Testing 1
An “ALJ has an obligation to develop the record in . . . benefits 2
proceedings, regardless of whether the claimant is represented by counsel.” 3
Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). But “where there are no
4
obvious gaps in the administrative record, and where the ALJ already possesses a 5
complete medical history, the ALJ is under no obligation to seek additional 6
information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d
7
72, 79 n.5 (2d Cir. 1999). Hyshaw contends that the ALJ should have ordered 8
additional intelligence testing here because the record “was devoid of a valid IQ 9
score or a formal assessment of her cognitive functioning from [her] teenage years 10
or adulthood.” Appellant’s Reply Br. 5. But
the record contained valid IQ 11
testing from 2007. Although Hyshaw argues that this test was outdated, a report 12
by a school psychologist in 2011—roughly three years before Hyshaw applied for 13
benefits—noted that Hyshaw’s “previous evaluation [in 2007] continues to 14
represent her cognitive ability.” Admin. R. 311.
In addition, both Dr. Ippolito, 15
who conducted a consultative examination of Hyshaw, and Dr. Totin, who 16
reviewed the record evidence, concluded that Hyshaw could perform simple 17
work despite her cognitive limitations. We therefore reject Hyshaw’s argument 18

4
that there were “obvious gaps” in the record requiring the ALJ to conduct a 1
formal intelligence examination. Callahan, 168 F.3d at 79 n.5.
2
2. Substantial Evidence
3
Hyshaw next argues that the ALJ’s RFC determination was not supported 4
by substantial evidence. We disagree. The ALJ appropriately considered the 5
opinions of Dr. Ippolito and Dr. Totin, and permissibly “exercise[d] discretion in 6
weighing the credibility of [Hyshaw’s] testimony in light of the other evidence in 7

the record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). We therefore
8
conclude that substantial evidence supported the Commissioner’s decision to 9
reject Hyshaw’s claim for benefits. 10
We have considered Hyshaw’s remaining arguments and conclude that 11
they are without merit. For the foregoing reasons, the judgment of the District 12
Court is AFFIRMED. 13
FOR THE COURT: 14
Catherine
O=Hagan Wolfe, Clerk of Court 15