Hargrave v. Colvin

Filing 19

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 16 Government's Motion for Judgment on the Pleadings; denying 17 Plaintiff's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 7/21/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
KRISTEN ANN HARGRAVE,
DECISION AND ORDER
No. 13-CV-6308(MAT)

Plaintiff,
-vsCAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant.
_______________________________
INTRODUCTION

Plaintiff, Kristen Ann Hargrave (“Plaintiff” or “Hargrave”),
brings this action under Title II of the Social Security Act (“the
Act”),

claiming

that

the

Commissioner

of

Social

Security

(“Commissioner” or “Defendant”) improperly denied her application
for Disability Insurance Benefits (“DIB”).
Currently before the Court are the parties’ competing motions
for judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.

For the reasons set forth below, I grant

the Commissioner’s motion, deny the Plaintiff’s motion, and dismiss
the Complaint.

PROCEDURAL HISTORY
On November 7, 2009, Plaintiff filed an application for DIB,
alleging

disability

as

of

June

1,

2006,

Administrative Transcript [T.] 115-123, 45-46.

which

was

denied.

A hearing was held

on February 17, 2011 before administrative law judge (“ALJ”)

Michael W. Devlin, at which Plaintiff, who was represented by
counsel, testified, as did a vocational expert.

T. 22-44.

On

November 28, 2011, the ALJ issued a decision finding that Plaintiff
was not disabled during the relevant period June 1, 2006 to
June 30, 2006.

T. 8-21.

On April 19, 2013, the Appeals Councils denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of
the Commissioner.

T. 1-4.

This action followed.

FACTUAL BACKGROUND
Plaintiff, who was born in 1960, testified that she has a high
school diploma and an associate’s degree.

T. 37, 115.

She

testified that she previously worked as a computer programmer in
the 1990s and as a concession stand attendant in 2007 and 2005.
T. 26-29, 36-38.

She testified that she was unable to work during

the relevant time period due to constant back pain that radiated
into her legs, asthma, and mental problems.

T. 29-35, 37-38.

Additionally, she testified that she had a problem with alcohol,
but that she had not had a drink in approximately nine years.
T. 36.
Plaintiff testified further that she had difficulty walking,
trouble sitting, and that it was hard for her to sit for more than
a half hour or an hour.

T. 32.

She testified that, due to her

ongoing pain, she generally stays home on the couch, that her pain

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limits her ability to grocery shop, which her husband usually does
because of the inability to stand, walk, and push the cart.

T. 35.

Relevant Medical Evidence
Treatment records pre-dating June 1, 2006 show that Plaintiff
had a history of chronic low back and radicular pain that was
treated with nerve root injections, prescription medication, and
physical therapy (including the use of a home TENS unit). Progress
notes from 2004 show impressions of lumbar spondylitic disease with
recess and central stenosis at L4-L5.

T. 342-343, 350-368.

In November 2006, Plaintiff saw James Budd, M.D. for back
pain, at which time he noted that Plaintiff was applying for
disability.
that:

T. 346.

Dr. Budd examined Plaintiff and reported

her lumbosacral spine exhibited muscle spasms;

elicited

by

palpation;

motion;

there

was

no

tenderness

no deformity was exhibited;

raises were negative.

T. 347.

pain was

exhibited

on

and her straight leg

Dr. Budd also reported no sensory

abnormalities, that Plaintiff’s strength was normal, her heel/toe
walking was normal, her knee and ankle jerk were normal, and that
she had an antalgic gait.

T. 347.

He noted that Plaintiff was

“anxious to find a solution to her disabling back pain” so that she
could find work, but that “in the meantime, she clearly is not
capable of working in any capacity.”

T. 347.

In December 2008, Plaintiff saw treating physician Rajendra
Singh, M.D., complaining of depression, anxiety and chronic low

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back pain.

Dr. Singh noted that Plaintiff appeared anxious and

depressed,

and

tenderness

over

T. 237.

a

physical

the

examination

lumbosacral

of

spine

and

Plaintiff

revealed

sacroiliac

joints.

Dr. Singh noted that “[a]ll the movements of the spine

[are] not painful” and that Plaintiff’s straight leg raising test
is “up to 30 degrees bilaterally.”

T. 237.

The doctor assessed

that “[b]ecause of [Plaintiff’s] chronic low back pain, patient is
not able to work in any capacity.”

T. 238.

Plaintiff saw

Dr. Singh again in January 2009 for leg cramps and chronic low back
pain.

Plaintiff

reported

taking

Naxopren,

Cyclobenzaprine,

Nortiptyline and Gabapentin, but that her pain persisted.

T. 231.

A physical examination at that time revealed tenderness over
Plaintiff’s lumbosacral spine and sacroiliac joints with pain on
forward flexion and lateral bending motions.

T. 231.

Plaintiff

returned to Dr. Singh in February, March, April and October 2009,
complaining of, among other things, continued back pain, headaches,
left knee pain, and pain in her hands.
remained

generally

unchanged

throughout

Plaintiff’s condition
this

time,

and

no

significant findings were reported. T. 241-242, 248, 377-378, 381382, 385-387.
On February 13, 2009, Plaintiff saw Thomas Cesarz, M.D. for
low back and buttock pain, which Plaintiff reported worsened with
walking, standing, sitting, lying down, and lifting.

T. 243.

Dr. Cesarz reported a decrease in Plaintiff’s lumbar flexion and

-4-

ordered

an

MRI,

which

showed

that

Plaintiff’s

condition

had

progressed from 2003 into grade II spondylolisthesis of the L4 on
L5.

T. 243-244.

On March 5, 2009, Plaintiff underwent another

MRI, which showed grade II anterolisthesis with severe narrowing of
the central canal and bilateral neural foramina at the L4-L5 level
with possible bilateral pars defect of the LS.

T. 227.

On

March 20, 2009, Plaintiff was seen by Dr. Cesarz again, complaining
of continued low back and buttock pain.

Plaintiff was referred to

Robert Molinari, M.D. for surgical evaluation.

T. 219.

In April 2009, Plaintiff met with Dr. Molinari who assessed
that Plaintiff had severe back and bilateral back pain that had
been “incapacitating and refractory to conservative measures over
several years.” T. 223.

He reported that Plaintiff was “unable to

perform physical activity and unable to alleviate her pain with
conservative measures.”

T. 223.

Dr. Molinari explained that

“[d]ue to her severe instability and poor quality of life,” she was
a

good

candidate

for

surgery.

T.

223.

Upon

examination,

Dr. Molinari reported that Plaintiff had a reduced range of motion
with pain on extension and flexion of the back, buttock radiating
down into her legs.

He also noted that flexion produced severe

pain in Plaintiff’s back.

Plaintiff’s straight leg raise was

within normal limits, her hip flexor, abductors and adductors, and
quadriceps and hamstring strength was full.

-5-

Plaintiff’s sensation

was diminished to L5 to light touch bilaterally, and the remainder
of her sensation was within normal limits.

T. 222.

Consultative Examinations
In

December

2009,

Plaintiff

underwent

a

consultative

examination by Harbinder Toor, M.D., who opined that Plaintiff had
“moderate limitations” in standing, walking, squatting, bending or
heavy lifting, “mild” difficulties with her hands for grasping,
holding and writing, and that she should avoid irritants and other
factors that could precipitate her asthma.
Also

in

December,

Plaintiff

T. 287.

underwent

a

consultative

psychological evaluation by Christine Ransom, Ph.D.

T. 281.

Dr. Ransom assessed that Plaintiff could follow and understand
simple

directions

and

instructions,

perform

simple

tasks

independently, maintain attention and concentration for simple
tasks, maintain a simple regular schedule and learn simple new
tasks.

Dr.

Ransom opined

further

that Plaintiff

would

have

moderate difficulty performing complex tasks, relating adequately
with others and appropriately dealing with stress due to major
depressive disorder and panic disorder.
In

January

2010,

non-examining

T. 281.

State

Agency

psychologist

R. Nobel reviewed the evidence in the file and assessed that
Plaintiff had “mild-moderate” work-related limitations, and opined
that these limitations would not preclude her from “working simple
task[s].”

T. 326.

Dr. Nobel reported that there was insufficient

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medical evidence to make a determination as to the severity of
Plaintiff’s mental limitations during the relevant time period.
T. 296, 328.

In August 2011, Thomas H. Weiss, M.D. completed a

Medical Interrogatory Physical Impairment form and reported that
Plaintiff had a history of low back pain, leg pain, and a left knee
injury. T. 399-405. Dr. Weiss reviewed the medical evidence in the
file and checked the “no” box when asked if there is sufficient
objective medical evidence to allow him to form opinions about the
nature

and

severity

relevant time period.

of

the

T. 400.

claimant’s

impairments

during

the

Dr. Weiss also checked the box “no”

when asked if any of the claimant’s impairments established by the
medical

evidence,

combined

or

separately,

meet

impairment described in the Listing of Impairments.

or

equal
T. 401.

any
He

elaborated with respect to this answer, stating “[Plaintiff] did not
meet orthopedic listings 1.02 major dysfunction of a joint o[r] 1.04
disorders of the Spine because of inadequate documentation.”
401.

T.

Further, Dr. Weiss identified no work-related limitations on

the portion of the form dedicated to his medical source statement.
T. 403-406.
DISCUSSION
I. Jurisdiction and Scope of Review
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Section 405 (g) provides that the District Court “shall have the

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power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause
for a rehearing.” 42 U.S.C. § 405(g)(2007). The section directs that
when considering such a claim, the Court must accept the findings
of fact made by the Commissioner, provided that such findings are
supported

by

substantial

evidence

in

the

record.

Substantial

evidence is defined as “‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’”

Richardson v. Perales, 402 U.S. 389, 401

(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).
Section 405 (g) limits the scope of the Court’s review to two
inquiries: determining whether the Commissioner’s findings were
supported by substantial evidence in the record as a whole, and
whether the Commissioner’s conclusions are based upon an erroneous
legal standard.

Green-Younger v. Barnhart, 335 F.3d 99, 105-06

(2d Cir. 2003); see also Mongeur v. Heckler, 722 F.2d 1033, 1037-8
(2d Cir. 1983) (finding a reviewing court does not try a benefits
case de novo).
Under Rule 12(c), judgment on the pleadings may be granted
where the material facts are undisputed and where judgment on the
merits is possible merely by considering the contents of the
pleadings.

Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642

-8-

(2d Cir. 1988).

A party’s motion will be dismissed if, after a

review of the pleadings, the Court is convinced that the party does
not set out factual allegations that are “enough to raise a right
to relief beyond the speculative level.”

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007).
II.

The Commissioner’s Decision Denying Plaintiff Benefits is
Supported by Substantial Evidence in the Record
The Social Security Administration has promulgated a five-step

sequential analysis that the ALJ must adhere to for evaluating
disability claims.
The

ALJ

in

20 C.F.R. § 404.1520.
this

case

used

this

sequential

procedure

determine Plaintiff’s eligibility for disability benefits.
found that Plaintiff:
June 30, 2006;1

to

The ALJ

met the insured status requirement on

did not engage in substantial gainful activity

during the relevant time period; had the severe impairments of back
pain with bilateral leg pain, spondylolisthesis, left knee pain due
to a remote injury, and asthma, and the non-severe impairment of
alcohol dependence, but that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled the
severity of one of the Listed Impairments;

had the residual

functional capacity (“RFC”) to perform sedentary work with certain

1

To qualify for disability insurance benefits, one must be both disabled and
insured for disability. 42 U.S.C. § 423(a)(1)(A) and (E); 20 C.F.R. § 404.101,
404.120, and 404.315(a). The date that a person last met these requirements is
commonly referred to as “the date last insured.”

-9-

limitations; and was capable of performing past relevant work as a
computer programmer, which did not require the performance of work
related activities precluded by Plaintiff’s RFC. Therefore, the ALJ
concluded that Plaintiff was not disabled during the relevant
period.

T. 17.

III. The ALJ’s Credibility Determination
Plaintiff

argues

that

the

ALJ

erred

in

his

credibility

assessment because he failed to consider the effects of Plaintiff’s
pain, and because he failed to apply the proper legal standards.
Pl’s Mem at 12 (Dkt. No. 17).

The Court finds no merit to this

argument for the reasons discussed below.
A claimant’s statements of pain or other subjective symptoms
cannot alone serve as conclusive evidence of disability.
Astrue,
§

606

F.3d

404.1529(a)).

46,

(2d.

20

if

a

claimant

assertions

C.F.R.

Id.

determines

claimant’s

(citing

subjective symptoms, the ALJ must follow a two-step analysis.
ALJ

a

2010)

his

the

evaluating

Cir.

of

First,

In

49

Genier v.

has

a

“medically

determinable impairment that could reasonably be expected to produce
the symptoms alleged.”

Id. (citing 20 C.F.R. § 404.1529(b)).

Second, if an impairment of that nature is present, the ALJ must
then determine “the extent to which [the claimant’s] symptoms can
reasonably be accepted as consistent with the objective medical
evidence and other evidence” in the administrative record.
(alteration in original) (quoting 20 C.F.R. § 404.1529(a).

-10-

Id.

If the plaintiff offers statements about pain or other symptoms
that are not substantiated by the objective medical evidence, “the
ALJ must engage in a credibility inquiry.”

Meadors v. Astrue, 370

F. App’x 179, 183 (2d Cir. 2010) (summary order) (citing 20 C.F.R.
§ 404.1529(c)(3)).
ALJ

must

consider

In making this credibility determination, the
seven

factors:

(1)

the

claimant’s

daily

activities; (2) the location, duration, frequency, and intensity of
pain or other symptoms; (3) any precipitating and aggravating
factors; (4) the type, dosage, effectiveness, and side effects of
any medications taken; (5) other treatment received; (6) other
measures taken to relieve symptoms; and (7) any other factors
concerning the individual’s functional limitations and restrictions
due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3)(i)-(vii);
see also Meadors, 370 F. App’x at 184 n.1.
The ALJ, however, is not required to discuss all seven factors
in his decision as long as the decision includes, as it does here,
precise reasoning, is supported by evidence in the case record, and
clearly

indicates

the

weight

the

ALJ

gave

to

the

claimant’s

statements and the reasons for that weight. Snyder v. Barnhart, 323
F. Supp. 2d 542, 546-47 & n.5 (S.D.N.Y. 2004) (upholding ALJ’s
credibility assessment where ALJ incorporated internal consistency
of the plaintiff’s symptom statements and consistency with his
treatment history into his decision, even though ALJ did not
explicitly discuss all seven credibility factors). “Because the ALJ

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has the benefit of directly observing a claimant’s demeanor and
other indicia of credibility,” his decision to discredit subjective
testimony is “entitled to deference” and may not be disturbed on
review if his disability determination is supported by substantial
evidence.

Brown v. Astrue, No. CV-08-3653, 2010 U.S. Dist. Lexis

62348, at *19 (E.D.N.Y. June 22, 2010) (citing Tejada v. Apfel, 167
F.3d 770, 776 (2d Cir. 1999);

Aponte v. Sec’y of Health and Human

Servs., 728 F.2d 588, 591 (2d Cir. 1984)).
Here,

following

the

two-step

analysis

for

evaluating

a

claimant’s assertions of his subjective symptoms, the ALJ first
found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms[.]” T. 16.

At

step two, however, the ALJ found that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible.”

T. 16.

Even though the ALJ

did not explicitly discuss all of the credibility factors set forth
above in his evaluation of Plaintiff’s credibility, his decision set
forth sufficient reasoning, was supported by the evidence in the
record, and explicitly stated that he did not find Plaintiff’s
statements credible because they were inconsistent “with the medical
evidence of record since the record reveals that the claimant has
had very limited medical evaluation and treatment for her alleged
impairments during the time period at issue.” T. 16. Specifically,
the ALJ noted that Plaintiff alleged that she is unable to work due

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to disabling back and knee problems and degenerative disc disease.
T. 15, 137-144.

However, as the ALJ pointed out, there are no

medical evaluations or treatment notes from the relevant time period
in the record.

T. 16.

Rather, the record shows that prior to

June 1, 2006, Plaintiff was seen by Dr. Patel for complaints of
chronic low back and radicular pain and that these conditions were
effectively

managed

through

the

administration

of

injections,

physical therapy (including the use of a home TENS unit), and pain
medications.

After June 30, 2006 up through 2009, Plaintiff saw

treating physicians Budd, Singh, Cesarz, and Molinari, complaining
of worsening low back and radicular pain.

T. 342-343, 350-361.

While treatment notes post-dating June 30, 2006 make reference to
Plaintiff’s chronic back pain and related symptoms, there is a lack
of supporting medical evidence for the relevant period of June 1,
2006

to

June

30,

2006.

Thus,

the

ALJ

properly

discounted

Plaintiff’s allegations of disabling pain and related symptoms
during the relevant time period.
Plaintiff also argues that the ALJ’s credibility assessment is
flawed

because

history.

he

failed

Pl’s Mem at 18.

to

consider

Plaintiff’s

strong

work

Plaintiff points out that her attorney

specifically requested that the ALJ consider that Plaintiff “‘has
a strong, solid work history with consistent work credits from 1977
into 2000'” and that “‘she continued to try to work as possible.’”
Id. (citing T. 209-210).

Plaintiff asserts that the “ALJ erred in

-13-

failing to acknowledge this as part of his credibility analysis.”
Pl’s Mem. at 18.
Although work history may be deemed probative of credibility,
it is only one of the many factors to be considered.
Astrue, 465 F. App’x 4, 7 (2d Cir. 2012);

Campbell v.

Wavercak v. Astrue, 420

F. App’x 91, 94 (2d Cir. 2011) (citing Schaal v. Apfel, 134 F.3d
496, 502 (2d Cir. 1998)).

Here, the ALJ’s failure to mention her

work history in arriving at his disability determination does not
undermine his credibility assessment since there is substantial
evidence

in

determination.

the

record

supporting

the

Id. (citing Wavercak, supra).

ALJ’s

disability

Specifically, while

the record shows that Plaintiff had a history of chronic physical
and mental impairments, there is a lack of medical evidence in the
record showing that she was medically evaluated or treated for same
during the relevant time period.

Further, the evidence that post-

dates the relevant time period shows that while Plaintiff suffered
from physical and mental impairments that mildly to moderately
affected her functional limitations, these impairments did not
prevent her from performing all types of work.

Moreover, it is

noteworthy that the ALJ did not discount Plaintiff’s claims of
disability altogether, but, instead, found that they were not
“entirely credible” to the extent they were inconsistent with the
medical evidence in the record. The ALJ’s RFC determination –- that
Plaintiff was capable of performing a range of sedentary work during

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the relevant period –- takes into account Plaintiff’s statements
regarding her difficulties standing, walking, and sitting
extended periods of time.
Accordingly,

the

for

T. 32.

Court

finds

that

the

ALJ’s

credibility

assessment is proper as a matter of law and is supported by
substantial evidence.
IV.

The ALJ’s Duty to Develop the Record
Plaintiff argues that the ALJ failed to fully develop the

record because he did not obtain a consultative exam and related
medical

records

from

Plaintiff’s

purportedly filed in 2006.

prior

social

security

file

Plaintiff alleges that this evidence

“could have provided the valuable medical evidence that the ALJ
believed was lacking” to find her disabled during the relevant time
period. Pl’s Mem at 19. The Court is unpersuaded by this argument.
“Although the claimant has the general burden of proving that
he or she has a disability within the meaning of the Act, because
a hearing on disability benefits is a non-adversarial proceeding,
the ALJ generally has an affirmative obligation to develop the
administrative record.”

Ubiles v. Astrue, No. 11-CV-6340T(MAT),

2012 U.S. Dist. LEXIS 100826, 2012 WL 2572772, at *7 (W.D.N.Y.
July 2, 2012) (internal quotations omitted).

This duty to develop

the record exists even when, as here, the claimant is represented
by counsel.

Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).

Where

there is reason to believe that additional information is necessary

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to reach a decision, the ALJ is required to develop a complete
medical history of the claimant for at least a twelve month period
prior to the application date.

Tejada v. Apfel, 167 F.3d 770, 774

(2d Cir. 1999).
Here, the ALJ discharged his duty to develop the record by
inquiring into Plaintiff’s prior disability filing during

the

hearing, and by requesting additional evidence after the hearing
from medical examiner Dr. Thomas Weiss for purposes of determining
whether Plaintiff was disabled during the relevant time period.
T. 206-207.
A

review

of

the

record

reflects

that

during

Plaintiff’s

hearing, the ALJ asked Plaintiff if she remembered filing a claim
for benefits in 2006.

T. 37.

Plaintiff responded, “I started to

go through the process of filling all the papers out and, yes, I
do.”

T. 37.

The ALJ then asked Plaintiff, “[d]id the Agency send

you to see a doctor at that time, do you remember?”

T. 37.

Plaintiff responded, “[y]es, I believe they did.”

At the

T. 37.

close of the hearing, the ALJ stated, on the record, that “there’s
a prior filing and I’m not sure we attempted to get the prior file.”
T. 42.

In response, Plaintiff’s attorney stated, “I don’t have it

on my CD, your Honor.”

T. 42.

The ALJ explained that it was filed

November 1, 2006 and closed out December 11, 2007.

Plaintiff’s

attorney then asked the ALJ if he knew the prior onset date, to
which the ALJ responded, “[m]aybe.

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I have an electronic shell, I

just don’t have the file.

I suspect it’s a paper file.

point, the alleged onset date was 1/1/02.

At that

So at the very least I

want to try to get that and see if it exists because it may have
medical that pertains to the period.”

T. 42-43.

The ALJ stated,

“I’ll diary it for March 17, 30 days out, and try to get that paper
file.
it.
I

If we get it, we’ll let you know so you can take a look at
Depending on what’s in that file or what’s not in that file,

may

or

may

not

get

an

ME

on

the

onset

date.”

T.

43.

Subsequently, in a letter dated September 6, 2011, the ALJ notified
Plaintiff’s counsel that he had “secured additional evidence that
[he] propose[d] to enter into the record” in the form of a Response
to Medical Interrogatory completed by Dr. Thomas H. Weiss.

T. 206-

207. In his response form, Dr. Weiss indicated that he had reviewed
the evidence in the file and reported that there was insufficient
objective medical evidence to allow him to form opinions about the
nature and severity of Plaintiff’s impairments during the relevant
time

period.

T.

400.

Dr.

Weiss

reported

that

Plaintiff’s

impairments did not meet or equal orthopedic listings 1.02 or 1.04
because there was “inadequate documentation” from the relevant time
period.

T. 401.

Dr. Weiss was supplied with a medical source

statement and identified no functional limitations.

T. 403-406.

Despite the fact that the ALJ inquired about the prior social
security file at Plaintiff’s hearing and subsequently obtained
additional evidence from medical expert Dr. Weiss, Plaintiff faults

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the ALJ for failing to specifically “state what efforts, if any,
were made to obtain Plaintiff’s prior paper file from Social
Security’s storage facility.”

Pl’s Mem at 20.

She asserts that,

“[i]t does not appear, on review of the administrative record, that
any internal efforts were made to obtain the paper file.”

Id.

Initially, based on the exchange between the ALJ, Plaintiff,
and Plaintiff’s attorney at the hearing, it is unclear whether the
2006 disability file even existed.

Even if it did, there is no

reason to believe that it would have contained evidence that would
have altered the ALJ’s disability determination. This is so because
the evidence in the record shows that Plaintiff received medical
care prior to June 1, 2006 for low back and radicular pain, and that
these

physical

impairments

were

effectively

managed

with

a

combination of injections, physical therapy, and pain medication.
There is no evidence in the record that suggests that Plaintiff’s
conditions became worse from June 1, 2006 to June 30, 2006, or that
Plaintiff was even medically evaluated and/or continued to receive
treatment for her impairments during that particular time period.
See 42 U.S.C. § 423(a)(1)(A) (complainant required to demonstrate
that she was disabled as of the date on which she was last insured);
see

also

Arnone

v.

Bowen,

882

F.2d

34,

37

(2d

Cir.

1989)

(eligibility for benefits is dependent on showing that the claimant
was insured and disabled during the insured period).

Furthermore,

the record further shows that after the relevant time period,

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Plaintiff

made

medical

visits

to

various

doctors,

including

orthopedic surgeon Molinari, complaining of worsening low back and
radicular pain.

It was not until 2009 –- long after the relevant

time period -- that treatment notes show that Plaintiff’s back
condition and related pain had progressed and that, due to her “poor
quality of life,” she was now a good candidate for surgery. T. 223,
243-244.
Moreover, at the time the ALJ made his disability determination
he had before him a longitudinal picture of Plaintiff’s physical and
mental history, which included copious medical records and treatment
notes from Plaintiff’s treating physicians dating back to 2004 up
through 2009.

He also had before him various consultative opinions

post-dating the relevant time period, none of which assessed that
Plaintiff’s mental and/or physical functional limitations prevented
her from performing all forms of work.

Rather, Dr. Toor’s 2009

consultative opinion assessed that Plaintiff had “moderate” to
“mild”

physical

limitations.

Likewise,

Dr.

Ransom’s

2009

consultative psychologic opinion assessed that Plaintiff had only
moderate mental limitations.

The ALJ also had before him the

January 2010 report from non-examining State Agency psychologist
R. Nobel who concluded that there was “insufficient evidence” in the
record to make a determination as to the severity of Plaintiff’s
mental limitations during the relevant period.

After reviewing the

evidence in the file, Nobel determined that Plaintiff had “mild” to

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“moderate” work-related mental limitations that would not preclude
her from “working simple task[s].”

T. 326.

Accordingly, because the ALJ inquired into Plaintiff’s prior
disability filing and subsequently obtained additional evidence from
medical expert Dr. Weiss with respect to Plaintiff’s impairments
during the relevant time period, the Court finds that the ALJ
sufficiently complied with his duty to develop the administrative
record.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings is
granted (Dkt. No. 16), the Plaintiff’s motion is denied (Dkt.
No. 17), and the Complaint (Dkt. No. 1) is dismissed in its entirety
with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

July 21, 2014
Rochester, New York

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