Bruer v. Colvin
Filing
22
MEMORANDUM & ORDER denying 13 Motion for Judgment on the Pleadings; granting 16 Motion for Judgment on the Pleadings; For the foregoing reasons, Defendant's cross-motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Proc edure 12(c) (Docket Entry 16) is GRANTED, and Plaintiff's motion for Judgment on the Pleadings pursuant to Federal Rule 12(c) (Docket Entry 13) is DENIED. The Clerk of the Court is directed to enter judgment in accordance with this Memorandum and Order and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 7/30/2015. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
DANA M. BRUER,
Plaintiff,
MEMORANDUM & ORDER
13-CV-5814(JS)
-againstCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
------------------------------------X
APPEARANCES
For Plaintiff:
John W. DeHaan, Esq.
DeHaan Busse LLP
300 Rabro Drive East, Ste. 101
Happauge, NY 11788
Kenneth S. Beskin, Esq.
Sherman, Federman, Sambur & McIntyre, LLP
8 East Main St.
Bay Shore, NY 11706
For Defendant:
Candace Scott Appleton, Esq.
United States Attorney’s Office
Eastern District of New York
271 Cadman Plaza East
Brooklyn, NY 11201
SEYBERT, District Judge
Plaintiff Dana M. Bruer (“Plaintiff”) commenced this
action pursuant to Section 205(g) of the Social Security Act, as
amended (the “Act”), 42 U.S.C. § 405(g), challenging Defendant
the
Commissioner
of
Social
Security’s
(the
“Commissioner”
or
“Defendant”) denial of Plaintiff’s application for disability
insurance
benefits.
Presently
before
the
Court
are:
(1) Defendant’s motion for Judgment on the Pleadings pursuant to
Federal Rule of Civil Procedure 12(c) (Docket Entry 13); and (2)
Plaintiff’s cross-motion for Judgment on the Pleadings pursuant
to Federal Rule 12(c) (Docket Entry 16).
For the following
reasons, Defendant’s motion is GRANTED and Plaintiff’s crossmotion is DENIED.
BACKGROUND
On November 10, 2010, Plaintiff filed an application
for disability insurance benefits, asserting that she has been
disabled
and
unable
hypothyroidism,
130-32, 139.) 1
2011.
to
work
headaches,
since
July
fibromyalgia,
19,
and
2009,
“back.”
due
to
(R.
at
Plaintiff’s application was denied on May 26,
(R. at 73-84.)
Plaintiff requested a hearing before an
administrative law judge (“ALJ”).
(R. at 85-86.)
A hearing took place before ALJ Seymour Rayner (“ALJ
Rayner”) on March 13, 2012.
(R. at 37-69.)
Plaintiff appeared
in person, was represented by counsel, and was the only witness
to testify.
(R. at 37-69.)
By decision dated March 19, 2012,
ALJ Rayner denied Plaintiff’s application, finding that she was
not disabled within the meaning of the Act.
(R. at 27-34.)
Plaintiff sought an appeal before the Appeals Council
on March 30, 2012.
(R. at 22-23.)
On July 18, 2013, the
Appeals Council granted Plaintiff’s request for review of her
“R.” denotes the administrative record filed by the
Commissioner on June 19, 2014. (Docket Entry 10.)
1
2
claim.
(R. at 121-24.)
On September 5, 2013, the Appeals
Council denied Plaintiff’s appeal.
(R. at 1-6.)
Because the Court’s review is limited to determining
whether there is substantial evidence in the record to support
ALJ Rayner’s decision, Rivera v. Sullivan, 923 F.2d 964, 967 (2d
Cir. 1991), the Court first reviews the administrative record.
The Court’s review of the record proceeds as follows: first, the
Court summarizes the relevant evidence presented to ALJ Rayner;
second, the Court reviews ALJ Rayner’s findings and conclusions;
and third, the Court reviews the Appeals Council’s decision.
I.
Evidence Presented to ALJ Rayner
The
Court
first
summarizes
Plaintiff’s
testimonial
evidence and employment history before turning to Plaintiff’s
medical records.
A.
Testimonial Evidence and Employment History
Plaintiff was born in 1970.
16-1,
at
1.)
She
graduated
(Pl.’s Br., Docket Entry
high
approximately four years of college.
school
and
(R. at 140.)
attended
Plaintiff
worked as a direct care aid from January 1990 to January 2001,
and then as a licensed practical nurse from July 2001 to July
2009.
(R. at 140.)
Plaintiff
back
on
November
counselor.
testified
6,
2001,
(R. at 41.)
that
while
she
initially
working
as
a
injured
direct
her
care
Plaintiff stated that she did not work
3
after that incident until 2005.
(R. at 43.)
She continued to
work until July 2009, when she stopped because of pain in her
neck, back, and shoulder, as well as increased headaches.
(R.
at 43, 46.)
Plaintiff explained that she experiences daily pain
that gets progressively worse throughout the day.
(R. at 46.)
She takes pain medicine twice per day, but it only decreases her
pain “for an hour or two.”
(R. at 46-47.)
As a result of this
pain, Plaintiff is only able to sit for about forty minutes
before needing to stand and stretch her back.
(R. at 48.)
Additionally, her pain becomes “excruciating” if she sits for
too long, and she therefore spends about six hours a day lying
down.
(R. at 49.)
The pain sometimes causes her to lose her
train of thought and impairs her ability to read.
Plaintiff lives with her mother.
(R. at 53.)
(R. at 50.)
She
stated that it typically takes her about 20 to 30 minutes to get
out of bed and that she sometimes goes four or five days without
showering.
(R. at 50.)
She does not do any household chores
and only drives once or twice a month locally.
(R. at 51-52.)
She is unable to bend over to tie her shoes, and the most she is
able to lift is a half-gallon of milk.
(R. at 57-58.)
She
occasionally goes to the movies and restaurants with her friends
and family.
(R. at 64.)
She also testified that she took a car
4
trip to Maine, but had to take many stops on the way.
(R. at
65)
B.
Medical Evidence
In addition to Plaintiff’s testimony, ALJ Rayner also
reviewed all of Plaintiff’s medical records.
her
medical
professionals:
treatment
(1)
Dr.
and
diagnoses
Shafi
Wani,
M.D.,
Plaintiff received
from
a
two
board
medical
certified
neurologist, and (2) Mr. Thomas Miceli, a chiropractor.
Dr. Wani saw Plaintiff twenty times between January 8,
2010 and February 9, 2012. (R. at 163, 170-77, 206-11, 230-45.)
Dr. Wani did not opine that Plaintiff was unable to work or care
for herself at any time before January 5, 2012.
170-77,
206,
210-11,
230-45.)
Indeed,
(R. at 163,
Plaintiff
routinely
described her pain as moderate--either a “four” or “five” on a
one-to-ten scale.
Dr.
Wani
(R. at 163, 170-77, 206, 210-11, 230-45.)
diagnosed
Plaintiff
with
chronic
pain
syndrome
and
chronic cervical radiculopathy, which manifested in a moderate
amount of stiffness and difficulty with neck motion.
163, 170-77, 206, 210-11, 230-45.)
(R. at
Dr. Wani treated Plaintiff
with a series of trigger point injections and noted several
times that she responded well to that treatment.
(R. at 170-72,
210, 234-39, 242-44.)
Plaintiff first visited Dr. Wani on January 8, 2010.
(R.
at
176.)
During
this
visit,
5
Plaintiff
complained
of
stiffness
and
tenderness
in
her
neck
and
shoulders,
described her pain as a “four” on a one-to-ten scale.
176.)
Dr.
Wani
diagnosed
Plaintiff
with
chronic
and
(R. at
cervical
radiculopathy and suggested a follow-up appointment four weeks
later.
(R.
at
176.)
Plaintiff
returned
February 4, 2010, for an examination.
to
Dr.
(R. at 177.)
Wani
on
Plaintiff
complained of continued discomfort in her neck and shoulders,
this time rating her pain level at a five.
(R. at 177.)
Dr.
Wani noted that Plaintiff’s medications were providing her with
moderate relief and diagnosed her with “chronic pain syndrome of
the cervical spine.”
(R. at 177.)
On July 7, 2010, Plaintiff again saw Dr. Wani due to
complaints of neck pain associated with numbness in her hands.
(R. at 173.)
with
Dr. Wani diagnosed her with chronic cervical pain
radiculopathy,
treatment.
and
recommended
that
she
continue
her
(R. at 173-74.)
Plaintiff
saw
Dr.
Wani
on
January
28,
2011,
and
complained of neck pain associated with numbness, along with a
“tingling in her upper extremities into her hands.”
163.)
(R.
at
(R. at
Plaintiff described her pain level as a six out of ten.
163.)
diagnosed
Dr.
Wani
again
Plaintiff
with
chronic
performed
cervical
noted that her condition was stable.
6
an
examination
and
radiculopathy,
but
(R. at 163.)
Dr. Wani
also stated that Plaintiff “is able to perform activities of
daily living.”
(R. at 163.)
On March 17, 2011, Plaintiff received trigger point
injection therapy from Dr. Wani in her cervical, shoulder, and
posterior chest wall muscles.
(R. at 170.)
Dr. Wani’s physical
exam of Plaintiff revealed a “moderate amount of stiffness and
tenderness” in the treated areas, as well as “difficulty with
neck motion.”
(R. at 170.)
Dr. Wani again diagnosed Plaintiff
with chronic cervical radiculopathy, but noted that her range of
motion was normal after the procedure was completed.
(R. at
170-71.)
Plaintiff
again
received
trigger
point
therapy from Dr. Wani on April 7, 2011.
(R. at 210.)
stated
physical
that
Plaintiff
was
receiving
injection
Dr. Wani
therapy
and
medication without getting complete relief but was responding
well to the injection therapy.
(R. at 210.)
Upon examination,
Dr. Wani again noted that Plaintiff had stiffness and tenderness
in her cervical, shoulder, and posterior chest muscles, along
with difficulty moving her neck.
visit
on
April
28,
2011,
(R. at 210.)
Plaintiff
At her follow-up
complained
of
neck
and
shoulder pain, but stated that she had a good response to the
trigger point injections.
(R. at 244.)
Dr. Wani again noted
stiffness and tenderness in Plaintiff’s cervical and shoulder
7
muscles,
and
suggested
she
therapy.
continue
trigger
point
injection
(R. at 244-45.)
On May 5, 2011, Plaintiff again received trigger point
injections from Dr. Wani, who noted similar findings as during
previous visits.
(R. at 242.)
Plaintiff returned to Dr. Wani
for follow-up visits on May 27, 2011, and July 22, 2011.
240-41.)
(R. at
Dr. Wani noted continued stiffness and tenderness in
Plaintiff’s cervical and shoulder muscles.
(R. at 240-41.)
Dr.
Wani administered trigger point injections to Plaintiff on seven
occations.
(R. at 170, 210, 23, 237-39, 242.)
On October 12,
2011, Dr. Wani diagnosed Plaintiff with “chronic posttraumatic
cervical myofascial pain and dysfunction,” but continued to note
Plaintiff’s good response to trigger point injections.
(R. at
237-39.)
During a visit with Dr. Wani on December 1, 2011,
Plaintiff continued to complain of pain throughout her neck, but
again stated that the trigger point injections continued to give
her relief.
(R. at 235.)
Dr. Wani again noted tenderness and
stiffness in Plaintiff’s cervical muscles, as well as shoulder
abduction being “decreased bilaterally with pain.”
Dr.
Wani
administered
trigger
again on December 22, 2011.
point
injections
(R. at 234.)
(R. at 235.)
to
Plaintiff
On January 5, 2012,
Plaintiff returned to Dr. Wani for a follow-up appointment and
complained of “continued pain, stiffness, tightness along with
8
headaches” and difficulty sleeping.
increased
Plaintiff’s
medication
(R. at 232.)
dosage.
(R.
at
Dr. Wani
233.)
He
stated for the first time that Plaintiff was unable to work and
that she had difficulty with normal daily activities.
233.)
(R. at
Plaintiff saw Dr. Wani again on February 9, 2012, for a
reexamination, which produced similar results to past visits.
(R. at 230-31.)
Concurrently with her visits to Dr. Wani, Plaintiff
regularly saw chiropractor Thomas Miceli.
67.)
(R. at 178-205, 246-
Plaintiff frequently described higher levels of pain to
Mr. Miceli than to Dr. Wani, often describing her pain as a
“six” or “eight” out of ten.
(R. at 178, 194.)
Mr. Miceli
diagnosed Plaintiff with a cervical sprain/strain and a thoracic
sprain/strain.
Plaintiff’s
(R.
condition
at
179.)
remained
Mr.
Miceli’s
relatively
reports
consistent
but
note improvements during Plaintiff’s visits in April 2011.
of
did
(R.
at 246-49.)
Plaintiff first saw Mr. Miceli on June 6, 2008, for a
diagnostic evaluation of “lumbar spine related problems” related
to
her
initial
injury
in
2001.
(R.
at
178.)
Mr.
Miceli
continued to monitor Plaintiff’s condition.
Plaintiff saw Mr. Miceli six times in January 2010.
(R. at 178-86.)
At her first visit, Mr. Miceli noted that
Plaintiff reported significantly increased neck and upper back
9
pain, as well as an increase in her neck and lower back spasms.
(R. at 178.)
Plaintiff further described her pain level as an
eight out of ten.
(R. at 178.)
Mr. Miceli conducted a series
of both orthopedic and neurological tests that showed Plaintiff
had
several
Plaintiff
impairments,
with
sprain/strain.
a
leading
cervical
Mr.
sprain/strain
(R. at 179.)
visited
experienced
Mr.
a
Miceli
slight
on
to
diagnose
a
thoracic
and
He also described Plaintiff’s
condition as “chronic and permanent.”
next
Miceli
January
reduction
in
(R. at 179.)
15,
her
2010
and
cervical
Plaintiff
stated
and
thoracic
pain, as well as a reduction in her neck and back spasms.
at 179-180.)
she
(R.
On January 20, 2010, Plaintiff again visited Mr.
Miceli and complained of a slight increase in her neck pain and
back pain, along with increases in her neck and back spasms.
(R. at 181.)
at 181.)
Mr. Miceli’s assessment remained unchanged.
(R.
Plaintiff reported no changes in her condition during
her visits with Mr. Miceli on January 22 and January 27, 2010,
(R. at 181-83.)
On January 29, 2010, Mr. Miceli again performed
“a complete, biomechanical, neurological and orthopedic work up”
on Plaintiff.
(R. at 184.)
Mr. Miceli described Plaintiff’s
condition as “extremely chronic and permanent.”
(R. at 185.)
Plaintiff visited Mr. Miceli twice in March 2010, and
reported that her condition was generally unchanged.
187-88.)
(R. at
Mr. Miceli again performed a full examination that
10
produced similar results to the pervious examinations.
188.)
Plaintiff
stated
that
she
continued
suffer
from
(R. at 188.)
“severe inflexibility” with “dull pain.”
to
(R. at
She
further stated that her neck pain was aggravated by turning her
head
and
her
back
pain
was
aggravated
by
actions
such
as
“bending, carrying, driving, pulling, sleeping, and walking.”
(R. at 188.)
after
Plaintiff also stated that she is made comfortable
taking
adjustments.
her
medication
and
receiving
chiropractic
(R. at 188.)
Plaintiff returned to Mr. Miceli in August 2010.
at 191.)
(R.
First, on August 4, 2010, she reported that she felt
mild improvements in her cervical and upper back pain, as well
as improvements in her muscle and upper back spasms.
191.)
(R. at
Mr. Miceli noted findings similar to that of previous
visits and diagnosed Plaintiff with “an acute exacerbation of a
chronic condition.”
(R. at 191.)
Then on, August 10 and August
18, 2010, Plaintiff told Mr. Miceli that her condition remained
generally unchanged.
2010,
Mr.
Plaintiff,
examination.
Miceli
(R. at 192-93.)
performed
recording
another
similar
(R. at 194.)
Finally on August 20,
full
results
to
examination
her
of
previous
During this visit, Plaintiff stated
she felt slight improvements in her condition, and rated her
pain level at six out of ten.
(R. at 194.)
11
Plaintiff
continued
visiting
Mr.
Miceli
in
2010,
seeing him on October 6, and 22, November 3, 10, 17, and 24, and
December 3, 17, 23, and 29.
(R. at 192-205, 262-67.)
Mr.
Miceli continued to occasionally perform full range of motion
examinations and did not note any major changes in Plaintiff’s
condition.
(R. at 192-205, 262-67.)
Mr. Miceli also met with
Plaintiff on January 25, February 9, and March 4, 18, and 30,
2011,
noting
similar
(R. at 250-60.)
results
to
Plaintiff’s
previous
visits.
On April 11, 22, and 29, 2011, Plaintiff told
Mr. Miceli that her neck and back impairments had improved by as
much as 40%.
II.
(R. at 246-49.)
ALJ Rayner’s Decision
On March 19, 2012, ALJ Rayner found that Plaintiff was
not
disabled.
although
(R.
Plaintiff
at
had
27-34.)
severe
ALJ
Rayner
impairments
concluded
in
the
form
that
of
“cervical and thoracic spine sprains/strains,” she still “had
the residual functional capacity to perform the full range of
sedentary work as defined in 20 CFR 404.1567(a).”
30.)
(R. at 29-
In so concluding, ALJ Rayner complied with the five-step
framework contemplated by the Act.2
The Commissioner must apply a five-step analysis when
determining whether a claimant is disabled as defined by the Act.
See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Petrie
v. Astrue, 412 F. App’x 401, 404 (2d Cir. 2011). First, the
claimant must not be engaged in “substantial gainful activity.”
20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, the
2
12
In
his
analysis,
ALJ
Rayner
afforded
“significantly
more weight” to Dr. Wani’s orthopedic and neurological opinions,
than Mr. Miceli’s opinions. He explained that he did so because
Mr. Miceli is not an orthopedist or neurologist.
(R. at 31.)
He
also gave Mr. Miceli’s overall opinon “little weight” because it
was
“inconsistent
with
considered as a whole.”
the
medical
evidence
and
testimony
(R. at 32.)
III. Appeals Council’s Decision
Plaintiff sought review of ALJ Rayner’s decision by
the Appeals Council.
(R. at 22.)
On September 5, 2013, the
Appeals Council adopted ALJ Rayner’s conclusion that Plaintiff
was not disabled.
(R. at 4-6.)
The Appeals Council agreed with
ALJ Rayner that Plaintiff could “lift 10 pounds occasionally and
less than 10 pounds frequently as well as sit for six hours or
stand and/or walk as much as two hours in an eight-hour work
day.”
(R. at 5.)
Despite concluding that Plaintiff could no
claimant must prove that he suffers from a severe impairment that
significantly limits his mental or physical ability to do basic
work activities. 20 C.F.R §§ 404.1520(a)(4)(ii), 416.920(a)
(4)(ii). Third, the claimant must show that his impairment is
equivalent to one of the impairments listed in Appendix 1 of the
Regulations. 20 C.F.R §§ 404.1520(a)(4)(iii), 416.920(a)
(4)(iii). Fourth, if his impairment or its equivalent is not
listed in the Appendix, the claimant must show that he does not
have the residual functional capacity to perform tasks required
in his previous employment. 20 C.F.R §§ 404.1520(a) (4)(iv),
416.920(a)(4)(iv). Fifth, if the claimant successfully makes
these showings, the Commissioner must determine if there is any
other work within the national economy that the claimant is able
to perform. 20 C.F.R §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
13
longer perform her past work, the Appeals Council still deemed
Plaintiff “not disabled” because of her capacity to perform a
“full range of sedentary work.”
(R. at 5.)
DISCUSSION
The
Court
will
first
review
the
relevant
legal
standard before turning to Plaintiff’s claims more specifically.
I.
Standard of Review
In reviewing the ruling of the ALJ, this Court will
not determine de novo whether Plaintiff is entitled to Social
Security Insurance or disability benefits.
Court
may
have
reached
a
different
Thus, even if the
decision,
substitute its own judgment for that of the ALJ.
Sullivan, 949 F.2d 57, 59 (2d Cir. 1991).
must
determine
whether
the
ALJ’s
it
must
not
See Jones v.
Instead, this Court
findings
are
supported
by
“substantial evidence in the record as a whole or are based on
an erroneous legal standard.”
Curry v. Apfel, 209 F.3d 117, 122
(2d Cir. 2000) (internal quotations marks and citation omitted),
superseded
by
statute
§ 404.1560(c)(2).
on
other
grounds,
20
C.F.R.
If the Court finds that substantial evidence
exists to support the Commissioner’s decision, the decision will
be upheld, even if evidence to the contrary exists.
v.
Barnhart,
269
F.
Supp.
2d
82,
84
See Johnson
(E.D.N.Y.
2003).
“Substantial evidence is such evidence that a reasonable mind
might accept as adequate to support a conclusion.”
14
Id. (citing
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427,
28 L. Ed. 2d 842 (1971)).
not
only
to
the
ALJ’s
The substantial evidence test applies
findings
of
fact,
but
also
to
inferences and conclusions of law drawn from such facts.
any
See
id.
To determine if substantial evidence exists to support
the ALJ’s findings, this Court must “examine the entire record,
including
contradictory
evidence
and
conflicting inferences may be drawn.”
F.3d
59,
62
(2d
citation omitted).
Cir.
1999)
evidence
from
which
See Brown v. Apfel, 174
(internal
quotation
marks
and
“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive . . . .”
II.
42 U.S.C. § 405(g).
Plaintiff’s Contentions
Plaintiff argues that ALJ Rayner erred in finding that
Plaintiff
is
not
consider
all
of
disabled
the
because:
medical
(1) ALJ
evidence
Rayner
regarding
failed
to
Plaintiff’s
impairment, most notably the opinions of Mr. Miceli; and (2) ALJ
Rayner selectively reviewed Dr. Wani’s reports and failed to
develop the record with evidence beyond his opinions.
The Court
addresses these arguments separately.
A.
Weight Given to Mr. Miceli’s Opinion
Plaintiff contends that ALJ Rayner failed to consider
all
of
the
medical
evidence
15
of
Plaintiff’s
impairment,
specifically
Plaintiff’s
the
medical
records
chiropractor.
supplied
(Pl.’s
Br.
at
by
Mr.
17.)
Miceli,
The
Court
disagrees.
Under,
20
C.F.R.
§ 404.1527,
ALJ
Rayner
has
the
discretion to determine how much weight to afford to a medical
source that is not an “accepted” medical source.
Circuit
has
regulations
held
be
read
that
to
“under
require
no
the
weight to a chiropractor’s opinion.”
The Second
circumstances
ALJ
to
give
can
the
controlling
Diaz v. Shalala, 59 F.3d
307, 314 (2d Cir. 1995) (emphasis in original).
As
a
chiropractor,
Mr.
Miceli
is
medical source under 20 C.F.R. § 404.1513.
not
an
accepted
Consequently, ALJ
Rayner had discretion to determine how much weight should be
accorded to Mr. Miceli’s opinion.
20 C.F.R. § 404.1527.
In any event, it cannot be said, as Plaintiff argues,
that ALJ Rayner “glossed over” the treatment records of Mr.
Miceli.
(Pl.’s Br. at 17.)
ALJ Rayner stated that he gave
“little weight” to Mr. Miceli’s opinion after considering “the
totality of the evidence.”
(R. at 32.)
Further, ALJ Rayner
went on to state that he was affording Mr. Miceli’s opinion
“little weight,” because it was inconsistent with the remainder
of the record.
(R. at 32.)
ALJ Rayner did not ignore Mr.
Miceli’s records; he made a calculated decision to afford them
16
less weight than Plaintiff would have liked.
Such a decision
falls well within his discretion.
Plaintiff also argues that ALJ Rayner somehow erred
when he chose to give more weight to Dr. Wani’s opinions because
he “fail[ed] to actually state how much weight he gave to the
neurologist’s opinion, and instead merely stated that he was
giving the doctor’s reports ‘significantly more weight’ than the
treating chiropractor . . . .”
(Pl’s Br. at 13.)
That ALJ
Rayner expressed his deference to Dr. Wani in relative rather
than absolute terms gives the Court no pause.
Further, ALJ
Rayner’s statement that Dr. Wani’s orthopedic and neurological
opinions were given “significantly more weight” than that of Dr.
Miceli,
is
consistent
with
the
way
ALJs
have
expressed
the
amount of weight accorded to a doctor’s opinion in the past.
Sisto
v.
Colvin,
No.
12-CV-2258,
2013
WL
4735694,
at
*9
(E.D.N.Y. Sept. 3, 2013) (affirming denial of Social Security
benefits where an ALJ noted he was according “extra weight” to a
doctor’s opinions).3
ALJ Rayner’s crediting Dr. Wani, who treated Plaintiff for over
two years, constitutes textbook adherence to the treating
physician rule, which requires that an ALJ look at various
factors and give good reasons for the weight accorded to a
claimant’s treating source, when not according the source
controlling weight. 20 C.F.R. 404.1527(c). Thus, to the extent
Plaintiff’s papers can be interpreted as a specious challenge
under the treating physician rule, it is denied.
3
17
B.
ALJ’s Consideration of Dr. Wani’s Reports
Plaintiff
further
argues
that
ALJ
Rayner’s
consideration of Dr. Wani’s opinions was flawed for two reasons:
(1) ALJ Rayner failed to consider Dr. Wani’s January 5, 2012
opinion that Plaintiff was unable to work; and (2) ALJ Rayner
failed to properly develop the record where Dr. Wani’s opinions
were lacking.
(Pl.’s Br. at 14-15.)
Dr. Wani indicated on January 5, 2012 that Plaintiff was
unable to work.
(R. at 233.)
Because this opinion came after
Plaintiff’s date last insured, ALJ Rayner deemed it of little
probative value to whether Plaintiff was entitled to disability
insurance benefits.4
Plaintiff argues that although this opinion
was given after Plaintiff’s date last insured, it should have
been considered to the extent it clarifies Dr. Wani’s previous
opinions and assessments.
(Pl. Br. at 14.)
However, an ALJ
must only consider medical opinions given after a claimant’s
date
last
insured
if
“such
condition prior to that date.”
opinions
are
relevant
to
her
Dailey v. Barnhart, 277 F. Supp.
2d 226, 233 n.14 (W.D.N.Y. 2003).
Here, Dr. Wani stated on
January 5, 2012, that “[a]t this time, [Plaintiff] is unable to
In order to be eligible for benefits, a claimant must be
insured at the time in which they are deemed disabled. 20
C.F.R. § 404.131. ALJ Rayner cited Plaintiff’s date last
insured as December 31, 2010. (R. at 29.) However, it was
noted by the Appeals Council that Plaintiff’s actual date last
insured was March 31, 2011. (R. at 4.)
4
18
work.”
(R.
at
233
(emphasis
added).)
Thus,
the
statement
itself limits the opinion of Plaintiff’s condition to that date.
Dr. Wani did not opine on Plaintiff’s ability to work at any
other
time.
Therefore,
ALJ
Rayner’s
not
considering
this
opinion in his decision was appropriate.
Plaintiff goes on to contend that ALJ Rayner failed to
develop the record regarding Dr. Wani’s opinion on Plaintiff’s
ability to work during the period during which she was insured.
(Pl.’s
Br.
complete
at
15.)
medical
§ 404.1512(d).
ALJ
Rayner
record
of
has
the
the
duty
to
develop
claimant.
20
a
C.F.R.
This includes making a request for evidence from
a medical source and then one follow-up request.
20 C.F.R.
§ 404.1512(d)(1).
The
record
indicates
that
Dr.
Wani
was
initially
contacted by ALJ Rayner on March 28, 2011, and then again on
April 11, 2011, and was provided with a form on which he was
asked
to
period.
assess
(R.
Plaintiff’s
at
227.)
Dr.
functionality
Wani
during
returned
the
her
insured
form
without
answering any of the questions and simply instructed ALJ Rayner
to refer to the medical records that were provided.
20.)
of
(R. at 212-
In doing so, Dr. Wani provided a complete medical history
his
treatment
of
Plaintiff,
Plaintiff’s condition at each visit.
including
his
opinion
of
The fact that Dr. Wani did
not give an opinion as to Plaintiff’s functionality during her
19
insured period did not make the record incomplete.
§ 404.1513(b)(6).
20 C.F.R.
Therefore, ALJ Rayner adequately fulfilled
his duty to develop Plaintiff’s medical record.
Accordingly,
the
Court
finds
both
that
Plaintiff’s
conventions on appeal lack merit, and, more importantly, that
the
administrative
records
contains
substantial
evidence
to
Defendant’s
cross-motion
support ALJ Rayner’s decision.
CONCLUSION
For
the
foregoing
reasons,
for Judgment on the Pleadings pursuant to Federal Rule of Civil
Procedure 12(c) (Docket Entry 16) is GRANTED, and Plaintiff’s
motion for Judgment on the Pleadings pursuant to Federal Rule
12(c) (Docket Entry 13) is DENIED.
The Clerk of the Court is
directed to enter judgment in accordance with this Memorandum
and Order and to mark this matter CLOSED.
SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Date: July
30 , 2015
Central Islip, New York
20
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