         09-0904-cv
         Behling v. Commissioner of Social Security


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16 th day of March, two thousand ten.
 5
 6       PRESENT: PIERRE N. LEVAL,
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12       BETTY BEHLING,
13
14                                       Plaintiff-Appellant,
15
16                       -v.-                                                   09-0904-cv
17
18       COMMISSIONER OF SOCIAL SECURITY,
19
20                                       Defendant-Appellee.
21
22
23       FOR APPELLANT:                  BETTY BEHLING, pro se, North Babylon, New
24                                       York.
25
26       FOR APPELLEE:                   DIANE C. LEONARDO-BECKMANN, Assistant
27                                       United States Attorney (Varuni Nelson,
28                                       Kathleen A. Mahoney, Assistant United
29                                       States Attorneys, on the brief), for
30                                       Benton J. Campbell, United States
31                                       Attorney for the Eastern District of New
32                                       York, Central Islip, New York.
33
1         Appeal from a judgment of the United States District
2    Court for the Eastern District of New York (Bianco, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the United States District

6    Court for the Eastern District of New York be AFFIRMED.

7        Appellant Betty Behling appeals from the February 9,

8    2009 judgment of the United States District Court for the

9    Eastern District of New York (Bianco, J.), granting

10   appellee’s motion for judgment on the pleadings pursuant to

11   Federal Rule of Civil Procedure 12(c).

12       Appellee, the Commissioner of Social Security,

13   determined that appellant was not entitled to disability

14   insurance benefits under Title II of the Social Security

15   Act, 42 U.S.C. § 401 et seq. (the “Act”).   This

16   determination was made in light of the fact that appellant

17   failed to demonstrate that she was disabled within the

18   meaning of the Act prior to December 31, 2003, the date on

19   which appellant was last insured.   We assume the parties’

20   familiarity with the underlying facts, the procedural

21   history, and the issues presented for review.

22       In conducting our review of “a disability benefits

23   determination, our focus is not so much on the district

24   court’s ruling as it is on the administrative ruling.”

                                  2
1    Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir. 2003)

2    (internal quotation marks omitted).     We engage in “a plenary

3    review of the administrative record to determine if there is

4    substantial evidence, considering the record as a whole, to

5    support the Commissioner’s decision” and to determine “if

6    the correct legal standards have been applied.”     Burgess v.

7    Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation

8    marks omitted).     We review the district court’s decision to

9    grant judgment on the pleadings de novo but defer to the

10   Commissioner’s resolution of any conflicting evidence in the

11   record.     See Clark v. Comm’r of Social Sec., 143 F.3d 115,

12   118 (2d Cir. 1998).

13       The Social Security regulations set forth a five-step

14   sequential analysis for evaluating disability claims.     20

15   C.F.R. § 404.1520; see Carroll v. Sec’y of Health & Human

16   Servs., 705 F.2d 638, 642 (2d Cir. 1983).     In this case, the

17   Administrative Law Judge (“ALJ”) determined that appellant

18   retained the residual functional capacity to perform light

19   work and that she could return to her past relevant type of

20   work.     See 20 C.F.R. § 404.1520(a)(4)(iv); see also Halloran

21   v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (per curiam).

22   Substantial evidence supports the ALJ’s determination that


                                     3
1    appellant did not suffer from a disability, as that term is

2    defined in the Social Security Act, prior to the date on

3    which she was last insured.   See 20 C.F.R. § 404.1520(f).

4        While it is true that “subjective evidence of pain or

5    disability testified to by the claimant” is relevant in

6    evaluating a claim for disability insurance, Brown v. Apfel,

7    174 F.3d 59, 62 (2d Cir. 1999), appellant’s subjective

8    complaints alone are not a basis for an award of disability

9    insurance benefits in the absence of corroborating objective

10   medical evidence.   See 20 C.F.R. § 404.1529; Poupore v.

11   Astrue, 566 F.3d 303, 307 (2d Cir. 2009) (per curiam).

12       Appellant asks this Court to consider her current

13   condition, which she alleges is deteriorating.    However,

14   appellant was required to demonstrate that she was disabled

15   as of the date on which she was last insured.    42 U.S.C. §

16   423(a)(1)(A); see Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir.

17   1989).   Any new impairments are not relevant to our

18   disposition of appellant’s present appeal.

19       We have considered appellant’s remaining arguments and

20   find them to be without merit.    Therefore, for the foregoing

21   reasons, the judgment of the district court is hereby

22   AFFIRMED.


                                   4
1   FOR THE COURT:

2   Catherine O’Hagan Wolfe, Clerk

3




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