# Wagner v. Commissioner of Social Security

> District Court, W.D. New York · May 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10364947

## Case

- **Court:** District Court, W.D. New York
- **Decided:** May 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________________

SHAUNA W.,

Plaintiff,

v. CASE # 20-cv-06758

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
____________________________________________

APPEARANCES: OF COUNSEL:

LAW OFFICES OF KENNETH HILLER, PLLC KENNETH R. HILLER, ESQ.
Counsel for Plaintiff
600 North Bailey Ave
Suite 1A
Amherst, NY 14226

U.S. SOCIAL SECURITY ADMIN. MARIA PIA FRAGASSI
OFFICE OF REG’L GEN. COUNSEL – REGION II SANTANGELO, ESQ.
Counsel for Defendant KATHRYN L. SMITH, ESQ.
26 Federal Plaza – Room 3904
New York, NY 10278

J. Gregory Wehrman, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
The parties consented in accordance with a standing order to proceed before the
undersigned. The court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The matter
is presently before the court on the parties’ cross-motions for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure. Upon review of the administrative record
and consideration of the parties’ filings, the plaintiff’s motion for judgment on the administrative
record is DENIED, the defendant’s motion for judgment on the administrative record is
GRANTED, and the decision of the Commissioner is AFFIRMED.
I. RELEVANT BACKGROUND
A. Factual Background
Plaintiff was born on August 23, 1984 and has at least a high school education. (Tr. 162,
156). Generally, plaintiff’s alleged disability at the time of application was fibromyalgia diagnosed

in September 2017, chronic migraines diagnosed in 2014, chronic back pain, GERD, and bone on
bone rubbing in her knees. (Tr. 155). Her alleged onset date of disability January 2, 2016, and her
date last insured was December 31, 2016. (Tr. 162).
B. Procedural History
On December 20, 2017, plaintiff applied for a period of Disability Insurance Benefits
(SSD) under Title II of the Social Security Act. (Tr. 126). Plaintiff’s application was denied, after
which she timely requested a hearing before an Administrative Law Judge (ALJ). On August 12,
2019, plaintiff appeared before ALJ Brian LeCours. (Tr. 23-52). On September 5, 2019, ALJ
LeCours issued a written decision finding plaintiff not disabled under the Social Security Act. (Tr.
12-19). On July 30, 2020, the Appeals Council denied plaintiff’s request for review of the ALJ’s

decision. (Tr. 1-3). Thereafter, plaintiff timely sought judicial review in this Court.
C. The ALJ’s Decision
Generally, in his decision, the ALJ made the following findings of fact and conclusions of
law:
1. The claimant last met the insured status requirements of the Social Security Act through
December 31, 2016.

2. The claimant did not engage in substantial gainful activity during the period from her
alleged onset date of January 2, 2016 through her date last insured of December 31, 2016
(20 CFR 404.1571 et seq.).

3. Through the date last insured, there were no medical signs or laboratory findings to
substantiate the existence of a medically determinable impairment (20 CFR 404.1520(c)).
4. The claimant was not under a disability, as defined in the Social Security Act, at any time
from January 2, 2016, the alleged onset date, through December 31, 2016, the date last
insured (20 CFR 404.1520(c)).

(Tr. 12-18).

II. THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION

A. Plaintiff’s Argument

Plaintiff asserts two errors requiring remand. (Dkt. No. 12 [Pl’s Mem. of Law]). First,
plaintiff argues the ALJ erred by failing to develop the record. (Id. at 11). Second, plaintiff asserts
the ALJ erred in finding that plaintiff had no medically determinable impairments. (Id. at 13).
B. Defendant’s Arguments
Defendant first responds that the ALJ fulfilled his affirmative duty to assist plaintiff in the
development of her complete medical history. (Dkt. No. 13 [Def.’s Mem. of Law] at 12).
Defendant next responded that the ALJ properly concluded the evidence did not establish plaintiff
had a medically determinable impairment during the relevant period at issue. (Id. at 19)
III. RELEVANT LEGAL STANDARD
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether an
individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y of Health & Human
Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will only be
reversed if the correct legal standards were not applied, or it was not supported by substantial
evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable
basis for doubt whether the ALJ applied correct legal principles, application of the substantial
evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant
will be deprived of the right to have her disability determination made according to the correct
legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d
23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the Commissioner’s
conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial evidence,
a reviewing court considers the whole record, examining evidence from both sides, because an
analysis of the substantiality of the evidence must also include that which detracts from its weight.”
Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be sustained “even
where substantial evidence may support the plaintiff’s position and despite that the court’s
independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan,

805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s
determination considerable deference, and may not substitute “its own judgment for that of the
[Commissioner], even if it might justifiably have reached a different result upon a de novo review.”
Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an
individual is disabled as defined by the Social Security Act. See 20 C.F.R. § 416.920. The Supreme
Court has recognized the validity of this sequential evaluation process. See Bowen v. Yuckert, 482
U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The five-step process is as follows:
(1) whether the claimant is currently engaged in substantial gainful activity; (2)
whether the claimant has a severe impairment or combination of impairments; (3)
whether the impairment meets or equals the severity of the specified impairments
in the Listing of Impairments; (4) based on a ‘residual functional capacity’
assessment, whether the claimant can perform any of his or her past relevant work
despite the impairment; and (5) whether there are significant numbers of jobs in the
national economy that the claimant can perform given the claimant's residual
functional capacity, age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).

IV. ANALYSIS
A. Duty To Develop
At the hearing, plaintiff’s counsel informed the ALJ that there were outstanding neurology
records from Westfall Road clinic. (Dkt. No. 12 at 11, referring to Tr. 29). As an initial matter,
plaintiff has been represented by the same counsel since December 2017, when she filed her claim.
(Tr. 23 (counsel at hearing), 59-60 (fee agreement and appointment of representative dated
December 2017)). On July 17, 2019, one month prior to the hearing, plaintiff first notified the
Agency of the Westfall Road treatment records dated January 2, 2015 to present, yet those records
were not requested by counsel until June and July 2019. (Tr. 191). At the hearing, the ALJ also
emphasized to plaintiff’s representative there were no medical records from the period at issue.
When the ALJ tried to elicit testimony about the possible missing records, counsel replied that she
was relying on plaintiff’s report of treatment, however plaintiff testified she had seen a neurologist
once “quite some time ago” and was not able to verify it was even during the period at issue. (Tr.
36-37).
The Agency and the ALJ appropriately developed the record as evidenced by the
administrative record. At the time of plaintiff’s application, she listed providers who had treated
her during the relevant period and the Agency dutifully requested those records during
development of the claim. (Tr. 158-159). In January and February 2018, the Agency contacted
plaintiff’s reported treating sources seeking her treatment records during the relevant period,
including Dr. Buckley/Gates Medical and Strong West Orthopedics. The medical records received
were devoid of any treatment notes contemporaneous to the period at issue. (Tr. 55-56, 158-59).

See 20 C.F.R. § 404.1512(b)(1)(i)-(ii). The Agency only received treatment records from Dr.
Buckley dated September 13-14 and November 3, 2017 (Tr. 207-10) and from Strong West
Orthopedics dated September 8, 2017 (Tr. 214-16). The Agency further secured treatment records
dated September 15, 2017 from URMC Strong Memorial Hospital’s Oral Surgery department (Tr.
219-26); and REDCK Rheumatology dated October 20 and November 14, 2017. (Tr. 227-38, 240-
43). Added to the administrative record before the hearing were the following additional treatment
records received from counsel in June 2019:
URMC’s Clinton Woods Otolaryngology dated November 21 and December 3, 2018 (Tr.
276-84 (Exhibit 6F)); URMC Strong Memorial Hospital’s GI & Hepatology department
dated September 2015, and from May 2018 to April 2019 (Tr. 285-315 (Exhibit 7F)); Unity
Hospital Emergency Department for visits on April 13 and November 9, 2018 (Tr. 318-70
(Exhibit 9F)); Dr. Buckley/Gates Medical dated April 2, 2018 and January 27, 2019 (Tr.
371-77 (Exhibit 10F)); REDCK Rheumatology dated October 20 and November 14, 2017
(additional records) (Tr. 378-437 (Exhibit 11F)); and Rochester General Medical Group’s
Allergy and Immunology clinic dated January 22, 2019 (Tr. 438-55 (Exhibit 12F)).
Notably, counsel’s request for records from Strong West Orthopedics yielded no additional
treatment records (Tr. 316-17 (Exhibit 8F)).

The ALJ explicitly stated there were no medical records for the period at issue in the
administrative record and encouraged counsel to identify which exhibits show the medically
determinable impairment prior to the date last insured (DLI). (Tr. 27). Counsel referenced exhibits
but the ALJ distinctly explained the index showing dates of service were not accurate and the
actual records were not from the period at issue. (Tr. 28-29). The ALJ informed counsel that he
was leaving the record open for a week until August 19, 2019, for the receipt of any additional
records. (Tr. 29-30, 50, 191). The ALJ also requested counsel to submit by this date an amended
pre-hearing memorandum identifying any medical determinable impairments established by the
record evidence on or before plaintiff’s date last insured (DLI). (Tr. 30, 50). In actuality, a decision
was not rendered for over three weeks, during which period no additional records or a request for
further time or assistance with securing any outstanding records were received from either plaintiff

or counsel. (See Tr. 15-19). Counsel also did not amend the pre-hearing memorandum and identify
any medically determinable impairments in the administrative record on or before plaintiff’s DLI,
as requested by the ALJ. In plaintiff’s October 1, 2018, request for review of the ALJ’s decision,
she neither proffered additional treatment records related to the relevant period, nor identified any
treatment records that were outstanding or missing, nor argued what medically determinable
impairment(s) the evidence demonstrated during the period in question. (See Tr. 1, 197-98).
In sum, the ALJ properly developed the record. As stated previously, the administrative
record was kept open for the submission of medical records. Brown v. Colvin, No. 3:14-cv-
1784(WIG), 2016 U.S. Dist. LEXIS 66527, at *7 (D. Conn. ·May 20, 2016 ) (“When an ALJ holds
open the record . . ., the ALJ will be found to have fulfilled her duty to develop the record."); Perry

v. Saul, 2020 WL 5544347, at *5 (W.D.N.Y. Sept. 16, 2020) (finding ALJ did not fail to develop
the record where at the hearing the claimant’s attorney advised of outstanding records she was
trying to locate, the ALJ agreed to hold the record open to allow the attorney to submit the records,
but the attorney neither submitted the records nor sought the ALJ's assistance in obtaining the
records, “including requesting the ALJ exercise her authority … to subpoena such records....”)
(citing Jordan v. Comm’r of Soc. Sec., 142 F. App’x 542, 543 (2d Cir. 2005)). Plaintiff never asked
for more time to submit additional records, nor did she inform the Appeals Council that there were
outstanding records. If they were requested by the plaintiff, as stated in her pre-hearing
memorandum, it would have been appropriate for the ALJ to “satisfy the duty to develop the record
by relying on the plaintiff’s counsel to obtain additional medical documentation.” Wozniak v.
Comm'r of Soc. Sec., No. 1:14-CV-00198, 2015 WL 4038568, at *9 (W.D.N.Y. June 30, 2015);
Myers ex rel. C.N. v. Astrue, 993 F.Supp.2d 156, 163 (N.D.N.Y. 2012).
Furthermore, plaintiff has not established there was an obvious evidentiary gap. Rosa v.

Callahan, 168 F.3d 72, 80 (2d Cir. 1999); see id. at 79, n.5 (“[W]here there are no obvious gaps
in the administrative record, and where the ALJ already possesses a ‘complete medical history,’
the ALJ is under no obligation to seek additional information in advance of rejecting a benefits
claim”). Plaintiff testified that she saw a neurologist once in the past for her migraine headaches
who prescribed medication possibly during the relevant period but she still could not remember
precisely when. (Tr. 36-37). As to her testimony that her treating physician, Dr. Buckley
subsequently switched this migraine medication, also perhaps during the relevant period, the ALJ
established with plaintiff and counsel that all treatment records from Dr. Buckley/Gates Medical
had been received, and none revealed treatment during the period at issue. (Tr. 35).

B. Medically Determinable Impairments
Plaintiff bears the ultimate burden of proving that she was disabled throughout the period
for which benefits are sought, i.e., from her January 2, 2016, alleged disability onset date through
her December 31, 2016 date last insured. See 20 C.F.R. § 404.1512(a); Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009); Schauer v. Schweiker, 675 F.2d 55, 59 (2d Cir. 1982). As clearly
conveyed by the ALJ at the hearing, the record lacked any objective medical evidence
contemporaneous to the relevant period to establish a medically determinable impairment. (See Tr.
26, 29, 34-35, 50). A disabling physical or mental impairment is defined as “an impairment that
results from anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3); see
20 C.F.R. § 404.1521 (same). A physical or mental impairment additionally “must be established
by objective medical evidence from an acceptable medical source.” 20 C.F.R. § 404.1521. The
ALJ specifically noted that the two gastrointestinal treatment records from September 2015, pre-
dating the period at issue, without follow-up until May 2018, did not demonstrate a medically
determinable impairment prior to the expiration of plaintiff’s DLI. (Tr. 27, 34-35; see Tr. 286-96).

Although evident from the hearing transcript that the ALJ had carefully reviewed the
evidence of record, the ALJ included an analysis of the allegedly disabling impairments in his
decision. (Tr. 18). The ALJ identified evidence that in September 2015 plaintiff sought treatment
for abdominal cramping, but diagnostic testing revealed normal findings, and she did not return to
her gastroenterologist until May 2018, suggesting that the frequency, duration, and intensity of her
symptoms was not as limiting as alleged. (Tr. 18; citing Tr. 286-96). See 20 C.F.R. § 404.1529(c);
SSR 16-3p. The ALJ next pointed out that during period at issue from January 2 through December
31, 2016, there was no evidence of treatment. (Tr. 18). Giving consideration to the entire record
as whole, including that several physicians acknowledged plaintiff’s past medical history, the ALJ

appropriately concluded that the record was simply devoid of any objective findings during the
relevant period establishing ongoing and continuous treatment and, more importantly, a medically
determinable impairment of disabling severity. (Tr. 18). The ALJ accordingly analyzed that the
plaintiff did not seek regular, ongoing treatment for any complaints and there was insufficient
medical basis for a finding of disability. (Tr. 18). See 42 U.S.C. § 423 (a)(1)(A), (c)(1) (d)(3),
(5)(a); 20 C.F.R. §§ 404.131, 404.315(a)(1), 404.320(b)(2), 404.1521, 404.1529(b); SSR 16-3p;
Walton, 535 U.S. at 216-22; Yuckert, 482 U.S. at 146 n.5; see also Shrecengost, 2015 WL 5126117,
at *3 (The claimant failed in his burden of furnishing evidence establishing a severe medically
determinable impairment on or before his DLI at step two of the sequential evaluation when he
did not seek treatment for a mental impairment until 25 days before the DLI’s expiration and
almost one year after the alleged onset date).
Contrary to plaintiff’s contentions, a school record from 2000 that references abdominal
pain and two treatment records from prior to the period at issue that indicate plaintiff was referred

for and/or underwent diagnostic GI studies, prescribed GERD medication, and advised to adhere
to a GERD lifestyle and dietary modifications, did not constitute evidence meeting the statutory
and regulatory requirements establishing a medical determinable impairment, as they did not
constitute “objective medical evidence from an acceptable medical source” 20 C.F.R. § 404.1521.
In September 2015, physician assistant (PA) Sarah Enslin observed no abnormal clinical findings
and offered no diagnosis at the examination but merely reported that plaintiff presented for an
evaluation of her GI symptoms. (Tr. 287). To be sure, plaintiff was referred for an
esophagogastroduodenoscopy (EGD) with corresponding biopsies, but the results were normal and
the attending gastroenterologist Dr. Jonathan Huang, likewise, offered no diagnosis. (Tr. 289-90).
Plaintiff did not subsequently seek follow-up of her GI symptoms until years later in May 2018,

and nearly one and one-half years after her DLI expired. (See Tr. 292). The ALJ appropriately still
considered the post-DLI records and concluded that plaintiff’s failure to follow up with her
gastroenterologist until May 2018 was demonstrative that her symptoms were not of the limiting
severity as alleged. (Tr. 18). Plaintiff failed to establish by objective medical evidence, from an
acceptable medical source, that she had an impairment during the period between her alleged onset
date and date last insured.
ACCORDINGLY, it is
ORDERED that plaintiffs motion for judgment on the pleadings (Dkt. No. 12) is
DENIED; and it is further
ORDERED that defendant’s motion for judgment on the pleadings (Dkt. No. 13) is
GRANTED.

Dated: May 19, 2022 J. Gregory wehrman( Uy
Rochester, New York HON. J. Gregory Wehrman
United States Magistrate Judge

1]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364947. Public record. Not legal advice.