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