# Matos v. Commissioner of Social Security

> District Court, E.D. New York · June 17, 2025

URL: https://www.frixlaw.com/law-library/cases/11075911

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 17, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11075911

## How later opinions describe it (automated extraction)

- stating the Commissioner “could properly refuse to find a disability in the absence of any objective medical evidence of plaintiff’s [condition] at the time of the claimed disability”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
DIANE MATOS,

Plaintiff,
MEMORANDUM & ORDER
-against- 20-CV-04998 (JS)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.
------------------------------------X
APPEARANCES
For Plaintiff: Diane Matos, Pro Se
1558 9th Street
West Babylon, New York 11704

For Defendant: Frank D. Tankard, Esq.
Santana Johanny, Esq.
Special Assistant U.S. Attorneys
United States Attorney’s Office
Eastern District of New York
c/o Social Security Administration
Office of the General Counsel
6401 Security Boulevard
Baltimore, Maryland 21235

SEYBERT, District Judge:
Pro se Plaintiff Diane Matos (“Plaintiff”) brings this
action pursuant to Section 205(g) of the Social Security Act (the
“Act”), 42 U.S.C. § 405(g), challenging the denial of her
application for Social Security Disability benefits under Title II
of the Act by the Commissioner of Social Security (the
“Commissioner”). (See Compl, ECF No. 1.) Presently before the
Court is the Commissioner’s motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c) (hereafter, the
“Motion”), which Plaintiff opposes. (See Motion, ECF No. 13; see
also Support Memo, ECF No. 13-1; Opp’n., ECF No. 17.) For the
following reasons, the Commissioner’s Motion is GRANTED.
BACKGROUND1

I. Procedural Background
On February 16, 2018, Plaintiff applied for disability
insurance benefits alleging disability beginning September 20,
2010, due to: back and neck injury; arthritis; depression; and,
hip, leg and shoulder pain.2 (R. 194, 205.) After her application
was denied on May 18, 2018, Plaintiff requested a hearing before
an administrative law judge (“ALJ”). (R. 10.) On October 1, 2019,
Plaintiff appeared at a disability hearing before ALJ Roxanne
Fuller, who presided over the hearing virtually (hereafter, the
“Disability Hearing”). (Id.) Although Plaintiff was informed of
her right to representation, she chose to appear and testify
without the assistance of an attorney or other representative.

(R. 10, 188.) Cyndee Burnett, a vocation expert (“VE”), testified
at the Disability Hearing. (R. 10.)

1 The background is derived from the administrative transcript
filed by the Commissioner on July 28, 2021. (See ECF No. 10). For
purposes of this Memorandum & Order, familiarity with the
administrative record is presumed. Hereafter, the Administrative
Transcript will be denoted by the Court as “R”.

2 This Order refers to the period from September 20, 2010 (i.e.,
the onset of disability) through September 30, 2012 (i.e., the
last date of insurance coverage) as the “Relevant Period”.
In a November 13, 2019 decision, the ALJ found Plaintiff
was not disabled (hereafter, the “ALJ Decision”). (R. 10-16.)
Plaintiff sought review of the ALJ Decision by the Appeals Council

(R. 20-21), submitting additional evidence in support of her
request. (R. 24-50.) She claimed in her review request to not
being able to work because she is depressed, and because she has
memory, neck, hand, back, and hip problems. (R. 192.) On August
20, 2020, the Appeals Council denied Plaintiff’s review request
review, thereby rendering the ALJ Decision the final decision of
the Commissioner. (R. 1-3.)
Plaintiff initiated this action on October 19, 2020.
(See Compl.) On October 28, 2021, Defendant moved for judgment on
the pleadings. Plaintiff filed her Opposition on February 3, 2022.
No reply was filed. (See Case Docket, in toto.)
II. Evidence Presented to the ALJ
The Court first summarizes Plaintiff’s testimony and

employment history before turning to her medical records and the
testimony of the VE.
A. Testimonial Evidence and Employment History
Plaintiff owned and operated an auto body repair shop
with her husband from 1988 until sometime after 1993, when she was
involved in an automobile accident (hereafter, the “Accident”).
(R. 76, 189-90.) The Accident left Plaintiff with a brain injury
and short-term memory loss. (R. 189, 252.) Plaintiff testified
she attempted to work after the Accident, but her poor memory
affected her ability to work; therefore, she and her husband had
to close their business. (R. 76-77, 190.) Plaintiff claims she

knew she was disabled back in 1993 when she had the Accident, but
she “fought her way back” because she “was not going to give in
and [ ] didn’t.” (R. 80.)
Plaintiff stated that, in 1993, an orthopedic doctor
told her she had arthritis of the spine, which her father had and
which is hereditary. (R. 82.) She claims to have seen many
doctors around the time of the Accident, but then “took [her]self
off all the doctors,” and was “going to get better [her]self.”
(Id.)
When the ALJ asked Plaintiff whether she saw any doctors
between 2010 and 2012, Plaintiff responded, “I don’t think so. I
don’t remember.” (R. 82.) Plaintiff further testified: during

the Relevant Period she suffered from back, neck and shoulder pain
(R. 79-83); she did not undergo tests for her back or neck pain
prior to 2012 because she lacked health insurance (R. 80-83); her
primary care physician, Dr. Conan Tu (“Dr. Tu”), a Pro Health
doctor, prescribed Vicodin for pain; and, some time before 2012,
Dr. Tu sent her to a pain doctor for an injection, but there are
no records confirming same. (Id.)
Following the Accident, when she was able to return to
work, Plaintiff worked for a company in a customer-service
capacity, interacting with its customers at her own pace; the job
also gave Plaintiff the freedom to sit, stand, and walk. (R. 190.)
Plaintiff held that position from approximately 2001 to sometime

in 2004, when the company went out of business. (R. 190-91, 236.)
From approximately 2005 through 2006, Plaintiff began
working for her sister-in-law’s company, About Design Fire
Protection, Inc. (“About Design”), where Plaintiff answered
phones, filed, dealt with the mail, and made collection calls.
(R. 77-78, 191-92, 206, 236.) While employed by About Design,
Plaintiff was able to walk and move around any time she needed;
however, she could not sit, stand or lay down for long periods.
(R. 77-78.) Plaintiff testified, while About Design went out of
business, she had been fired beforehand. (R. 78, 191.) Further,
in approximately 2006 or 2007, Plaintiff attempted to work at a
friend’s restaurant; however, between her “fingers being so bad

with arthritis” and her poor memory, she “couldn’t do it.” (R.
82, 191.)
According to the record, Plaintiff informed her primary
care physician that she worked as an Avon sales representative in
2008, 2010, 2011, and 2012. (R. 299, 303, 309, 523.) As of at
least July 2017, Plaintiff no longer worked for Avon. (R. 602.)
In October 2017, Plaintiff informed her physician that she was
working every day as a caretaker for a dementia patient. (R. 442.)
Continuing, Plaintiff testified that, about a year prior
to the Disability Hearing, she had tried to work for a friend’s
business, but that attempt was unsuccessful. (R. 79.) Plaintiff

explained she could not remember things and she was unable to
follow directions. (Id.) Moreover, on her third day of work,
Plaintiff got lost going to the job, even though she knew the way.
(Id.) When asked why she could not work, Plaintiff responded she
“ha[s] no memory left,” and due to the shoulder and back pain she
suffers; she also stated her age makes it even more difficult now.
(R. 79-80.) She claims she has suffered radiating back, neck and
shoulder pain since the Accident. (R. 80.)
Plaintiff’s earnings statement indicates that she had no
earnings between 1995 and 1998, and 2009 and 2019. (R. 201.)
B. Non-Medical Evidence
At the time of the Disability Hearing, Plaintiff was 62
years old. (R. 15.) Plaintiff attended school through the 12th

Grade. (R. 206.) She lives with both her husband and legally
blind adult daughter. (R. 251-52.)
In connection with her disability application, on March
17, 2018, Plaintiff completed a function report, which detailed
her daily activities and how her condition affected her ability to
perform various tasks (hereafter, the “Function Report”). (R.
246-53 (labeled “EXHIBIT NO. 9E”).) In the Function Report,
Plaintiff indicated: she suffers “bad depression”; cannot handle
stress; and, has trouble remembering things. (R. 246.) She further
self-reported having trouble paying attention and being unable to
finish tasks starts mostly due to pain. (R. 247.) She indicated

“everything” she does hurts, i.e., lifting, standing, walking,
sitting, climbing stairs, kneeling, squatting, and reaching. (R.
248.) Further, as to using her hands, Plaintiff stated her
arthritis causes difficulties writing, typing, and opening things.
(Id.) Plaintiff indicated she is able to follow written
instructions and sometimes oral instructions. (R. 246.) Plaintiff
reported she is able to count change, pay bills, handle a savings
account. (R. 249.) She does not require any special help or
reminders to take care of her personal needs and grooming, but she
relies upon a pill keeper to remember to take her medications.
(R. 250.) Plaintiff further reported: daily, she prepares simple
foods, but cannot stand for long periods in doing so; being able

to do light cleaning and laundry; she is able to do yardwork in
ten minutes intervals; but, requiring her husband’s help with heavy
cleaning, such as most of the vacuuming and cleaning the bathtub.
(R. 250-51.) Plaintiff drives. (R. 251.) She cares for her
legally blind daughter, e.g., driving her to and from work, doing
her laundry, and cooking her dinner. (R. 252.) Plaintiff reports
“wak[ing] up to move all night due to restless leg and pain.”
(Id.) Plaintiff’s daily activities include: mostly staying home;
tidying up; making her husband’s lunch and dinner; driving her
daughter to and from work; food shopping when needed; and, watching
television. (R. 253.) Plaintiff indicated, depending on her pain
level, she is able to go outdoors, take a walk, and shop in stores.

(R. 251.) She estimated being able to walk a quarter of a mile
before having to stop and rest. (R. 247.) She reported: spending
time with others on a weekly basis, but mostly via phone; and
having no problems getting along with family, friends, neighbors,
and persons in positions of authority. (R. 246, 248.)
In a May 10, 2019 letter, Wendy Darling (“Darling”),
Operations Manager at Countertop Design, wrote in support of
Plaintiff’s disability claim, stating she knew Plaintiff for 25
years, who became physically and mentally disabled due to the
Accident. (R. 325). In her support letter, Darling explained:
sometime in late 2017 or early 2018, Plaintiff asked Darling for
a job; Darling agreed, offered Plaintiff a conditional position as

an administrative assistant, which Darling hoped would become a
permanent, full-time position; unfortunately, on her third day of
work, Plaintiff got lost coming to the office and when she arrived,
appeared visibly disheveled; and, Plaintiff seemed unable to
retain or remember information. (Id.) Thus, Darling did not hire
Plaintiff. (Id.)
C. Medical Evidence Before Date Last Insured
According to her Disability Report, Plaintiff visited
many doctors, including physical therapists and a chiropractor,
for years but “all of [her] older records are gone.” (R. 211.)
Thus, she identified Dr. Tu, her primary care physician, as a
source of medical information regarding her physical and mental

conditions. (Id.) Plaintiff was under the care of Dr. Tu from
2005 to 2017. (R. 210.) Plaintiff visited Dr. Tu on: October 13,
2009; October 26, 2009; March 18, 2010; April 22, 2010; and, July
22, 2010. (R. 572-74, 577-80, 586-88, 591-93, 596-98.) The record
reflects, at her appointments, Plaintiff presented as a well-
appearing, well-nourished woman in no distress, who was oriented
to all spheres and had a normal mood and affect. (573, 579, 587,
592, 597.) Examination of Plaintiff’s neck, heart, and lungs were
normal. (Id.) Similarly, examination of Plaintiff’s spine was
normal, with no deformity or tenderness and normal range of motion;
her extremities were warm without cyanosis, clubbing, or edema.
(Id.) Plaintiff was assessed as having: hypertension; insomnia;

tobacco abuse; as well as, depression and anxiety for which
medication was prescribed. (R. 572-73, 579-80, 587, 592.)
D. Medical Evidence From the Relevant Period
At a September 17, 2011 visit to her primary care
provider for a skin rash, Plaintiff appeared well-nourished and in
no distress. (R. 302-03.) She was oriented to all spheres and
had a normal mood and affect. (R. 303.) Plaintiff’s heart and
lung findings were normal. (Id.) Benadryl cream was recommended
for Plaintiff’s rash, and Vicodin was refilled for chronic
arthritis. (Id.)
On January 16, 2012, Plaintiff visited Pro Health,

complaining of a chronic headache and chronic cough, as well as
trouble seeing and fatigue. (R. 298-300.) Upon examination,
Plaintiff appeared well-nourished and in no distress.
(R. 299-300.) Plaintiff’s neck, heart, and lungs were all found
to be normal; similarly, Plaintiff’s spine appeared normal without
deformity or tenderness. (Id.) Plaintiff was prescribed Flonase
for her chronic headaches, which were found to be consistent with
chronic sinusitis. (Id.) A chest X-ray was ordered; the results
appeared to be normal. (R. 300, 316, 562.)
Plaintiff’s Pro Health records contain no mention of any
back or neck pain during the Relevant Period. (See R. 83.) While
Plaintiff testified she had one “injection” from a pain doctor

during this time, she could not recall the date. (R. 80-83.)
E. Medical Evidence After Date Last Insured
The bulk of Plaintiff’s medical records are from after
the Relevant Period, specifically, from 2013 through 2019. (See
generally R. 283-561.) Plaintiff continued to receive primary
care treatment at Pro Health during that post-Relevant Period time
frame. (R. 401-559.) In said records, Plaintiff was repeatedly
noted as being a well-appearing, well-nourished woman in no
distress. (R. 404, 416, 425, 434, 439, 450, 468, 475, 489, 498,
518, 525, 530, 535, 549, 558.) Examination of Plaintiff’s spine
was normal with no deformity or tenderness and with a normal range
of motion; her extremities were warm without cyanosis, clubbing,

or edema. (R. 416, 425, 464, 450, 468, 475, 489, 498, 518, 525,
530, 535, 549, 558.)
January 17, 2013 progress notes indicate Plaintiff was
assessed as having polyarthralgia-chronic spinal disc herniations.
(R. 558.) November 11, 2014 progress notes from a primary care
visit indicate Plaintiff’s stress had increased as her mother, who
suffered from Alzheimer’s disease, had moved in with her. (R. 529.)
Plaintiff was provided referrals for chronic back pain
on June 1, 2016, November 16, 2017, and October 15, 2019. (R.
425, 434, 498.) On January 26, 2016, Plaintiff appeared for her
first visit at Long Island Medical Associates. (R. 628.) Notes
from that visit record Plaintiff’s lumbar stenosis and

radiculopathy. (-Id-.-) A February 5, 2016 X-ray of Plaintiff’s
lumbar spine was normal; the X-ray also revealed dense
arteriovascular calcification aorta, which was disproportionate to
Plaintiff’s age. (R. 660.) An X-ray of Plaintiff’s cervical spine
taken that same day showed moderate cervical degeneration at C5-6,
as well as straightening of the cervical lordotic curve. (R. 663.)
In her patient questionnaire completed at a June 1, 2016
primary care visit, Plaintiff noted: having trouble falling or
staying asleep or sleeping too much; having a poor appetite; having
little interest or pleasure in doing things; and, feeling down or
depressed, but not bad about herself. (R. 501.) Conversely,
Plaintiff indicated having no trouble concentrating on things,

such as reading a newspaper or watching television. (Id.)
However, during the June 2016 visit, Plaintiff complained of
increased stress caused by taking care of her demented mother; she
screened positive for depression. (R. 495-99.)
On March 27, 2017, after her mother passed away
unexpectedly, Plaintiff contacted Pro Health requesting
medication; she was prescribed Clonazepam. (R. 459.) Progress
notes from a July 11, 2017 examination by Dr. Tu state Plaintiff
was grieving the loss of her mother and screened positive for
depression. (R. 447-52.) Thus, the Doctor prescribed Plaintiff
with an antidepressant. (R. 452.)
On July 17, 2017, Plaintiff completed a health

questionnaire during a visit to her primary care doctor. (R. 454.)
In the questionnaire, Plaintiff indicated she: had trouble falling
or staying asleep; felt tired or had little energy; had little
interest in doing things; felt depressed; had a poor appetite;
and, had trouble concentrating on things, but never felt bad about
herself or had thoughts of self-harm. (Id.)
Dr. Tu’s November 1, 2017 progress notes indicate
Plaintiff was taking Vicodin for chronic back pain. (R. 439.)
Thereafter, on November 30, 2017, Plaintiff began treatment for
back and neck pain at New York Spine and Pain Physicians (“NY Spine
and Pain”). (R. 327-32.) Nonoperative treatment options were
recommended for her lumbar and cervical radiculitis. (R. 330-31.)

A December 12, 2017 MRI of Plaintiff’s lumbar spine showed minimal
to mild disc bulging and mild stenosis. (R. 287-88.)
Additionally, the MRI showed that, at the L4-L5, there was a
central/left paracentral disc herniation impressing upon the
ventral thecal sac and impinging upon the descending L5 nerve roots
in the lateral recesses. (R. 288.) The MRI report further stated,
at L5-S1, there was a broad-based central disc herniation
impressing upon the ventral epidural fat and impinging upon the
descending S1 nerve roots as it emerged from the thecal sac. (-Id-.-)
Records show Plaintiff did not return to NY Spine and
Pain until April 30, 2019, some 16 months after her first
appointment at that practice. (R. 333-37.) At that time,

nonoperative treatments were again recommended to Plaintiff for
her lumbar and cervical radiculitis, as well as for her right
shoulder pain. (R. 335-36.) An X-ray was ordered to help assess
Plaintiff’s shoulder pain, and she was referred to a rheumatologist
for evaluation of her joint pain. (R. 336-37.) A May 7, 2019 MRI
of Plaintiff’s cervical spine showed: degenerative disc disease at
C5-6 resulting in moderate spinal canal stenosis; a herniation at
C4-5 compressing the right C5 nerve roots; and, additional milder
degenerative changes. (R. 318-19.) A right shoulder X-ray,
performed on May 8, 2019 was normal. (R. 371.)
On May 15, 2019, NY Spine and Pain prescribed Plaintiff

a cervical collar, a cervical epidural, and pain medication. (R.
339-40.) A May 17, 2019 MRI of Plaintiff’s lumbar spine revealed
spinal malalignment with progressive multilevel degenerative disc
disease including herniations and stenoses. (R. 321.) Plaintiff
received cervical epidural injections on May 29, June 19, and July
10, 2019. (R. 343-44, 346-47, 349-50.) At subsequent visits to
Spine and Pain, on July 10 and July 24, 2019, continued epidural
injections were recommended to Plaintiff for her cervical
radiculitis. (R. 353-54, 357-58.) Similarly, on August 22, 2019,
NY Spine and Pain recommended an epidural injection for Plaintiff’s
lumbar radiculitis, which was administered on September 18, 2019.
(361-62, 364-65.)

F. The VE’s Testimony
At Plaintiff’s Disability Hearing, the VE was asked to
classify Plaintiff’s prior work at About Design; she testified the
job is titled “Office Clerk” and its exertional level is light.
(R. 84.) Next, the VE was asked to consider a hypothetical
individual of Plaintiff’s age, education, and work experience who
could perform a light level of work. (Id.) The ALJ instructed
the VE that this individual could occasionally: climb ramps or
stairs, ladders, ropes or scaffolds; balance, stoop, crouch, kneel
and crawl; be exposed to mechanical parts; operate a motor vehicle;
and, be exposed to unprotected heights. (R. 84-85.) The VE
responded that such an individual would be able to perform

Plaintiff’s past work as an office clerk. (Id.)
Then, in response to the ALJ adding the further
limitation of the subject hypothetical individual performing
routine, repetitive tasks, the VE stated Plaintiff’s “[p]ast work
would be eliminated.” (R. 85.) When asked to further consider
that the same individual would be absent from work four times a
month, the VE testified that scenario would eliminate all
competitive employment, which response was based upon her
knowledge of industry standards. (Id.) The VE testified her
testimony was consistent with the Dictionary of Occupational
Titles (“DOT”), except regarding absenteeism tolerance, which was
not addressed in the DOT and was “based on [her] knowledge of

industry standards through job analysis.” (Id.)
DISCUSSION
I. Standard of Review
When reviewing a final decision of the Commissioner, a
district court must “conduct a plenary review of the administrative
record to determine if there is substantial evidence, considering
the record as a whole, to support the Commissioner’s decision and
if the correct legal standards have been applied.” Rucker v.
Kijakazi, 48 F.4th 86, 90-91 (2d Cir. 2022) (quoting Estrella v.
Berryhill, 925 F.3d 90, 95 (2d Cir. 2019)). District courts will
overturn an ALJ’s decision only if the ALJ applied an incorrect
legal standard, or if the ALJ’s ruling was not supported by

substantial evidence. Id. (citing Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012)). “[S]ubstantial evidence . . . means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Selian v. Astrue, 708 F.3d
409, 417 (2d Cir. 2013) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)).
II. Determination of Disability3

To receive disability benefits, a claimant must be
“disabled” within the meaning of the Act. See 42 U.S.C.
§ 423(a), (d). A claimant is disabled under the Act when she is
unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A). An individual is disabled
under the Act if she suffers from an impairment which is “of such

3 Of note: “[T]he regulations relating to the evaluation of
medical evidence were amended for disability claims filed after
March 27, 2017.” Jacqueline L. v. Comm’r of Soc. Sec., 515 F.
Supp. 3d 2, 7 (W.D.N.Y. 2021) (citing Revisions to Rules Regarding
the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg.
5844-01, at *5844 (Jan. 18, 2017)). Because Plaintiff’s claim was
filed on December 14, 2018, “the new regulations, codified at 20
C.F.R. §§ 404.1520c and 416.920c, apply.” Id.
severity that [s]he is not only unable to do h[er] previous work
but cannot, considering h[er] age, education, and work experience,
engage in any other kind of substantial gainful work which exists

in the national economy. . . .” 42 U.S.C. § 423(d)(2)(A).
In Brown v. Commissioner of Social Security, 708 F. Supp.
3d 234 (E.D.N.Y. 2023), Honorable Kiyo A. Matsumoto of this
District thoroughly and succinctly articulated the standard the
Commissioner must follow in determining a claim of disability, see
id. at 241-42, as well as the standard a reviewing district court
must utilize when a claimant challenges the Commissioner’s
determination that the claimant is not disabled, see id. at 242-
43. This Court adopts same and incorporates by reference those
standards herein.
Generally speaking, in reviewing a final decision of the
Commissioner, a district court must “conduct a plenary review of

the administrative record to determine if there is substantial
evidence, considering the record as a whole, to support the
Commissioner’s decision and if the correct legal standards have
been applied.” Rucker v. Kijakazi, 48 F.4th 86, 90–91 (2d Cir.
2022) (quoting Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir.
2019)). District courts will overturn an ALJ’s decision only if
the ALJ applied an incorrect legal standard, or if the ALJ’s ruling
was not supported by substantial evidence. See id. (citing
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)).
“[S]ubstantial evidence . . . means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.

2013) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
III. The ALJ Decision
Here, the ALJ applied the five-step disability analysis
and concluded Plaintiff was not disabled during the Relevant
Period. (R. 12-16; see 20 C.F.R. § 404.1520.)
At step one, the ALJ found Plaintiff had not engaged in
substantial gainful activity from her alleged onset date of

September 20, 2010, through her date last insured of September 30,
2012. (R. 12.)
At step two, the ALJ determined Plaintiff’s arthritis
constituted a severe impairment (id.), but also found Plaintiff’s
depression was not severe as it did not cause more than minimal
limitation in Plaintiff’s ability to perform basic mental work
activities (R. 13). The ALJ’s finding was based upon the
“paragraph B” criteria of the disability regulations, 20 C.F.R.,
Part 404, Subpart P, Appendix 1, which considers the impact of a
claimant’s mental impairments in four categories: (1)
understanding, remembering, or applying information; (2)
interacting with others; (3) concentrating, persisting, or

maintaining pace; and (4) managing herself. (Id.) As to Category
One: The ALJ considered Plaintiff’s abilities for understanding,
remembering, or applying information and found Plaintiff had mild
limitations based upon her function report where she reported she:

does not need special reminders to take care of her personal needs;
and, can follow written instructions, pay bills, count change and
handle a savings account. (Id.) As to Category Two: The ALJ found
Plaintiff had no limitation in her ability to interact with others
because she stated: not having problems getting along with family,
friends, neighbors, or others; and, spending time with others over
the phone. (Id.) As to Category Three: The ALJ found Plaintiff
had a mild limitation in concentrating, persisting, or maintaining
pace; this was based upon Plaintiff’s testimony she could not
follow instructions together with her stating in her function
report she is able to: pay bills; count change; handle a savings
account; and, follow written instructions. (Id.) Additionally,

the ALJ observed Plaintiff has a driver’s license and drives.
(Id.) As to Category Four: The ALJ determined Plaintiff suffered
no limitation adapting or managing herself, once more observing
Plaintiff: does not need special reminders to take care of her
personal needs; and, has a driver’s license, as well as reiterating
Plaintiff helps care for her legally blind daughter. (Id.) The
ALJ concluded that, because Plaintiff’s mental impairment caused
no more than “mild” limitation in any of the functional areas, it
was non-severe. (Id.)
At step three, the ALJ found Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled the severity of any impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1 of the Social Security regulations. (R.
14.) The ALJ considered the criteria of Section 1.04 regarding
disorders of the spine and found no medical evidence of record
indicated Plaintiff has a compromise of either the nerve root or
the spinal cord.4 (Id.) Additionally, the ALJ found no treating
or examining physician proffered findings that are equivalent in
severity to the criteria of this impairment or any other listed
impairment. (Id.)
At step four, the ALJ determined Plaintiff had the
residual functional capacity (“RFC”):
to perform light work as defined in 20 CFR
404.1567(b) except: occasional climb ramps or
stairs; occasional climb ladders, ropes, or
scaffolds; occasional balance, stoop, crouch,
kneel, crawl; occasional exposure to moving
mechanical parts; occasional operating a motor
vehicle; occasional exposure to unprotected
heights.

(R. 14); see also 20 C.F.R. 404.1529. To support her RFC
determination, the ALJ “considered all symptoms and the extent to

4 The Social Security Administration revised the musculoskeletal
Listings effective April 2, 2021. See 85 F.R. 78164, 2020 WL
7649906 (Dec. 3, 2020). However, the ALJ properly applied the
Listings criteria in effect at the time of her decision.
which these symptoms can reasonably be accepted as consistent with
the objective medical evidence and other evidence.” (R. 14.)
The ALJ explained she was required to engage in a

two-step process when considering a claimant’s symptoms: (1) “it
must first be determined whether there is an underlying medically
determinable physical or mental impairment(s)--i.e., an
impairment(s) that can be shown by medically acceptable clinical
or laboratory diagnostic techniques--that could reasonably be
expected to produce the claimant’s pain or other symptoms”; and
(2) “[s]econd, once an underlying physical or mental impairment(s)
that could reasonably be expected to produce the claimant’s pain
or other symptoms has been shown, [the ALJ] must evaluate the
intensity, persistence, and limiting effects of the claimant’s
symptoms to determine the extent to which they limit the claimant’s
functional limitations.” (R. 14.) Further, as to the second prong

of the analysis, “whenever statements about the intensity,
persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, [the
ALJ] must consider other evidence in the record to determine if
the claimant’s symptoms limit the ability to do work-related
activities.” (R. 14-15.)
Though Plaintiff alleged disability due to neck pain,
back pain, arthritis, and a brain injury, the ALJ found the records
prior to Plaintiff’s September 30, 2012 date last insured did not
show she was so limited. (R. 15.) The ALJ recognized that an
objective medical exam in September 2011 showed Plaintiff was in
no distress but was given a prescription refill for Vicodin for

arthritis; however, no specific evaluation records concerning
arthritis were provided. (Id.) A subsequent objective exam in
January 2012 “showed a normal spine without deformity or tenderness
and normal range of motion, and [Plaintiff’s] extremities were
warm without cyanosis, clubbing, or edema on exam.” (Id.) The
ALJ reported “no additional treatment records related to
Plaintiff’s neck pain, back pain, arthritis, or brain injury were
provided.” (Id.)
Moreover, while the ALJ found Plaintiff’s “medically
determinable impairments could reasonably be expected to cause the
alleged symptoms”, she concluded Plaintiff’s “statements about the
intensity, persistence, and limiting effects of these symptoms

[we]re not entirely consistent with the medical evidence and other
evidence in the record.” (Id.) The ALJ explained, Plaintiff
“testified that she was unable to work due to neck pain, back pain,
arthritis, and a brain injury related to a 1993 motor vehicle
accident. However, the medical record[s] show she was earning at
a substantial gainful activity level for several years after the
accident.” (Id.) Hence, the ALJ adopted an RFC that limited
Plaintiff to light work due to her arthritis with additional non-
exertional limitations. (Id.)
Finally, at step five, the ALJ determined that, through
the date last insured, (1) Plaintiff was capable of performing
past relevant work as an office clerk, and (2) this clerical work

did not require the performance of work-related activities
precluded by the Plaintiff’s RFC. (R. 16.) Therefore, based upon
Plaintiff’s RFC, and work experience, the ALJ determined Plaintiff
was not disabled. (Id.)
IV. Analysis
Plaintiff challenges the ALJ’s non-disability finding.
The Court construes Plaintiff’s filings as raising two arguments:
(1) the ALJ’s decision was not supported by substantial evidence;
and (2) the case should be remanded to the Agency for its
consideration of new evidence Plaintiff has presented. However,
upon review of the record as a whole, the Court finds: (a) the
Commissioner’s determination that Plaintiff failed to show she was
disabled before the expiration of her insured status on September

30, 2012 is supported by substantial evidence; and (b) Plaintiff’s
proffered supplemental evidence does not alter that conclusion.
A. The Commissioner’s Decision is Supported by
Substantial Evidence

Plaintiff asserts she could not work due to neck pain,
back pain, arthritis, depression, hip pain, leg pain and shoulder
pain. (R. 205.) However, wholly lacking from the record is any
medical evidence to support Plaintiff’s disability claim from her
alleged onset date of September 10, 2010 through September 20,
2012, the date her insured status expired. Furthermore, the ALJ’s
determination that Plaintiff was not disabled is supported by

Plaintiff’s own evidence, including her testimony.
As to Plaintiff’s alleged physical impairments, there is
no objective medical evidence from before the date last insured to
indicate Plaintiff was impaired during the Relevant Period.
Notably, “[a]n ALJ is entitled to rely not only on what the record
says but also on what it does not say.” Wilson v. Apfel, No.
97-CV–1410, 1998 WL 433809, at *7 (E.D.N.Y. July 30, 1998)
(citation omitted); see also Snitzer v. Astrue, No. 09-CV-2705,
2011 WL 1322274 at *9 (E.D.N.Y. Mar. 31, 2011) (citing Peterson v.
Gardner, 391 F.2d 208, 209–10 (2d Cir. 1968) (stating the
Commissioner “could properly refuse to find a disability in the
absence of any objective medical evidence of plaintiff’s

[condition] at the time of the claimed disability”)). The earliest
record evidence of medical treatment for Plaintiff’s alleged
physical impairments is from November 30, 2017, which is more than
five years after Plaintiff’s date last insured, when Plaintiff
began treatment for back and neck pain at NY Spine and Pain.
(R. 327-32.) Because the Act required Plaintiff to be insured
when her disability first began, in this instance, evidence after
September 20, 2012 cannot serve as the basis for a finding of
disability. See 20 C.F.R. § 404.131(a) (“[Y]ou must have
disability insured status in the quarter in which you become
disabled.”); see also Arnone v. Bowen, 882 F.2d 34, 37-38 (2d Cir.
1989) (“[R]egardless of the seriousness of h[er] present

disability, unless [Plaintiff] became disabled before, [her date
last insured], [s]he cannot be entitled to benefits.”) (citations
omitted). Thus, “Plaintiff’s failure to seek medical treatment
during the period at issue undercuts a finding of disability.”
Vitale v. Apfel, 49 F. Supp. 2d 137, 144 (E.D.N.Y. 1999).
Here, Plaintiff asserts a lack of health insurance
explains her failure to obtain treatment during the Relevant
Period. (See R. 80-83.) Yet, the record indicates Plaintiff
continued to see her primary care provider during that time frame
and those records do not indicate anything more than a prescription
for pain medication. (See R. 572-74, 577-80, 586-88, 591-93,
596-98; compare ALJ Decision, R. 15 (“The [Plaintiff] was given a

prescription refill for Vicodin for arthritis but no specific
evaluation records concerning arthritis were provided.” (citation
omitted)).) Further, “while a justified failure to seek or follow
through on treatment cannot be used against a claimant, neither
can a lack of treatment—justifiable though it may be—serve to
bolster an individual’s claim.” Doria v. Colvin, No. 14-CV-7476,
2015 WL 5567047, at *8 (S.D.N.Y. Sept. 22, 2015) (“The ALJ observed
the lack of objective medical evidence to support [plaintiff]’s
claim and moved forward to consider the information actually
available. He could do no more.” (internal citation omitted)).
In addition to lack of treatment, what medical reports

are in the record belie Plaintiff’s contention that she could not
perform light work during the Relevant Period. Progress notes
from Plaintiff’s primary care provider from March 19, 2010, April,
22, 2010, and July 22, 2010, evinced: Plaintiff was not in
distress; upon exam, Plaintiff’s spine was normal, with no
deformity or tenderness; and, Plaintiff exhibited a normal range
of motion. (R. 573, 579, 587.)
Moreover, the ALJ did not err in declining to base her
disability determination upon Plaintiff’s testimony alone. The
ALJ found “[Plaintiff’]s statements about the intensity,
persistence, and limiting effects of [] her symptoms [were] not
consistent with the record” (R. 15), since the objective medical

evidence did not support Plaintiff’s allegations. “As a general
matter, a claimant’s testimony that [s]he was unable to work during
the relevant period is not enough alone to prove an entitlement to
disability benefits.” Snitzer, 2011 WL 1322274, at *9; see also
Reynolds v. Colvin, 570 F. App’x 45, 47 (2d Cir. 2014) (summary
order) (holding “lack of supporting evidence on a matter where the
claimant bears the burden of proof, . . . can constitute
substantial evidence supporting the denial of benefits” (citation
omitted)). The record reflects Plaintiff was earning at a
substantial gainful activity level for several years after the
Accident. (See R. 201.) This, coupled with her daily activity
level (as described in her disability reports), undercut the

alleged severity of her symptoms; at a minimum, it suggests that,
despite her impairments, Plaintiff could engage in some level of
work activity. See 20 C.F.R. § 404.1529(c).
As to Plaintiff’s alleged depression, the record
supports the ALJ’s findings that this mental impairment was
non-severe. (R. 13-14.) In making this determination, the ALJ
properly considered the requisite “four broad areas of mental
functioning” by examining Plaintiff’s function report and her
testimony. (Id.) Based upon the record evidence from the Relevant
Period, the ALJ found, because Plaintiff’s “medically determinable
mental impairment caused no more than ‘mild’ limitation in any of
the functional areas, it was nonsevere.” (Id. at 13.) Indeed,

“the ‘mere presence of a disease or impairment, or establishing
that a person has been diagnosed or treated for a disease or
impairment’ is not, by itself, sufficient to render a condition
‘severe.’” Bourdier v. Saul, No. 19-CV-0205, 2020 WL 705211, at
*6 (E.D.N.Y. Feb. 12, 2020) (quoting Taylor v. Astrue, 32 F. Supp.
3d 253, 265 (N.D.N.Y. 2012) (further quoting Coleman v. Shalala,
895 F. Supp. 50, 53 (S.D.N.Y. 1995)). Though Plaintiff was
assessed as having depression and anxiety prior to and after the
Relevant Period, based on the record as a whole, the evidence was
not sufficient to show Plaintiff had a mental impairment which
prevented her from performing her past relevant work on or before
September 30, 2012. Accordingly, upon the instant record, the

ALJ’s conclusion that Plaintiff was not disabled is supported by
substantial evidence.
B. Consideration of New Evidence
As discussed below, the additional evidence Plaintiff
submitted to the Appeals Council, as well as the supplemental
evidence she provided this Court, is unavailing in altering the
ALJ’s non-disability determination.
1. The Additional Evidence Submitted to the
Appeals Council Does Not Warrant Remand.
Upon an administrative appeal where a claimant submits
supplemental evidence that had not been before the ALJ, the Appeals
Council is required to consider such evidence to the extent it
“relates to the period on or before the date of the [ALJ] hearing
decision.” 20 C.F.R. § 416.1470(a). If, after considering the
additional evidence, the Appeals Council denies review of the ALJ’s
decision, the record before the reviewing court will then include
the supplemental evidence. See Perez v. Chater, 77 F.3d 41, 46
(2d Cir. 1996) (“When the Appeals Council denies review after
considering new evidence, we simply review the entire
administrative record, which includes the new evidence, and
determine, as in every case, whether there is substantial evidence
to support the decision of the Secretary.”).
Here, after the ALJ issued her adverse decision,

Plaintiff appealed the ALJ Decision to the Appeals Council; in
connection with her appeal, Plaintiff submitted the following new
evidence: (1) undated photos of Plaintiff wearing various body
braces; (2) an August 17, 2018 list of medications; (3) an undated
request for records; (4) a printout explaining epidural and nerve
root injections with a handwritten date of September 18, 2019; (5)
a 2019 NY Spine and Pain bill for office visits and injections;
and (6) a May 10, 2019 single-page letter from a potential employer
in support of Plaintiff’s disability claim (hereafter,
collectively, the “New Evidence”).5 (See R. 24-31.) The Appeals
Council found the Resubmitted Evidence was duplicates of records
before the ALJ and the New Evidence pertained to Plaintiff’s

condition after the Relevant Period. (R. 2.) Thus, finding said
Evidence did “not show a reasonable probability that it would
change the outcome of the [ALJ D]ecision,” it denied Plaintiff’s
request for review. (Id.)
Having thoroughly reviewed the record, the Court concurs
with the Appeals Counsel; the Resubmitted Evidence is duplicative

5 Additionally, Plaintiff re-submitted MRI and X-ray reports from
February 2016 through May 17, 2019, which were already in the
record before the ALJ (hereafter, the “Resubmitted Evidence”).
(See R. 2, 32-50.)
of records already before the ALJ, and the New Evidence fails to
suggest Plaintiff’s ability to function during the Relevant Period
was more impaired than determined by the ALJ. See Adesina v.

Astrue, No. 12–CV–3184, 2014 WL 5380938 at *14 (E.D.N.Y. Oct. 24,
2014) (“Additional evidence submitted after an ALJ’s determination
must be both relevant to the claimant’s condition during the time
period for which benefits were denied, and present a reasonable
possibility that [it] would have influenced the [ALJ] to decide
the claimant’s application differently.” (internal quotation marks
omitted; emphasis added)). As none of Plaintiff’s New Evidence
relates to the Relevant Period, remand is not warranted.
2. Evidence Attached to Plaintiff’s Complaint
Does Not Warrant Remand
“When a court is confronted with a case where the
plaintiff has submitted supplemental evidence to the court itself
to support his or her claim, the court may remand based on that
evidence, provided the plaintiff shows good cause for the failure
to have incorporated such evidence into the record previously.”
Campos v. Saul, No. 18-CV-9809, 2020 WL 1285113, at *17 (S.D.N.Y.
Mar. 18, 2020) (citing 42 U.S.C. § 405(g)). Additionally, “[t]o
justify remand, the court must find that the supplemental evidence
is ‘new’ -- in the sense that it is not merely duplicative of
evidence already in the record, and also that it is ‘material’ --

that is, relevant to the time period at issue, and probative, such
that it is reasonably possible that such evidence would have
influenced the Commissioner to decide the claim differently.” Id.
(internal citations omitted); see also Tirado v. Bowen, 842 F.2d

595, 597 (2d Cir. 1988).
Here, Plaintiff attached the following supplemental
evidence to her Complaint: (1) an October 17, 1994 disability
certificate from an orthopedic doctor stating Plaintiff was
totally disabled between March 16, 1993 and October 1, 1994; (2)
receipts from 1993 through 1994 for house cleaning, laundry, and
shopping services; (3) a March 11, 2020 rheumatology evaluation of
Plaintiff referencing “a long history of generalized
musculoskeletal pain, wors[e] in her hands,” as well as “a known
history of cervical and lumbar spine degenerative disease,” and
stating Plaintiff “is under pain management care with epidural
injections”; and (4) June 26, 2020 X-rays of Plaintiff’s hands

(hereafter, collectively, the “Supplemental Evidence”).6 (See
Compl. at 19-22, 35.) Further, in opposing the instant Motion,
Plaintiff acknowledges that, “when [she] first applied [for
disability benefits, she] didn’t have any Dr’s findings,” but
claims that she has “now submitted medical testing of [her] injury
and spinal cord.” (Opp’n at 2.)

6 Plaintiff also attaches notes from her November 30, 2017, April
30, 2019, and July 24, 2019 visits to NY Spine and Pain, which are
already part of the record that was before the ALJ. (Compl. at
23-26; see R. 327-37, 356-58.)
Plaintiff’s Supplemental Evidence is not material or
probative because it is either from before the date last insured
or from medical testings and evaluations conducted nearly a decade

after the alleged onset of Plaintiff’s disability. Thus,
Plaintiff’s proffered Supplemental Evidence fails to offer insight
into her specific limitations during the Relevant Period. See
Campos, 2020 WL 1285113, at *17; see also Clark v. Saul, 444 F.
Supp. 3d 607, 621 (S.D.N.Y. 2020) (“[F]or[] records to provide
substantial evidence of a disability during the relevant time
period, the records must actually shed light on [the plaintiff’s]
condition during that period.” (emphasis added)). “Evidence of an
impairment that reached disabling severity after the expiration of
an individuals’ insured status cannot be the basis for a disability
determination, even [if] the impairment itself may have existed
before the individual’s insured status expired.” Norris v.

Barnhart, No. 01-CV-0902, 2002 WL 31778794, at *4 (S.D.N.Y. Dec.
12, 2002) (citing Arnone, 882 F.2d at 38) (emphasis added); see
also Vilardi v. Astrue, 447 F. App’x 271, 272 (2d Cir. 2012)
(summary order) (stating “reliance on evidence demonstrating a
worsening of [a claimant’s] condition after [the date last insured]
is of little value”); Behling v. Comm’r of Soc. Sec., 369 F. App’x
292, 294 (2d Cir. 2010) (summary order) (stating claimant’s current
condition not relevant because she “was required to demonstrate
that she was disabled as of the date on which she was last insured”
and “[a]ny new impairments are not relevant” (citations omitted));
Flanigan v. Colvin, 21 F. Supp. 3d 285, 302 (S.D.N.Y. 2014)
(denying benefits where “at best the evidence show[ed] that

[plaintiff] experienced progressively worsening symptoms that
eventually became disabling” after his date last insured). Hence,
since there is no reasonable possibility Plaintiff’s Supplemental
Evidence from prior to and after the Relevant Period would have
influenced the Commissioner to decide Plaintiff’s claim
differently, remand is not warranted.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that the
Commissioner’s Motion (ECF No. 13) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court enter
judgment in favor of the Commissioner and, thereafter, mark this
case CLOSED. Further, the Clerk of Court is to send a copy of

this Memorandum & Order and the Judgment to Plaintiff at her
address of record.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: June 17, 2025
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11075911. Public record. Not legal advice.