    08-2015-cv
    Swainbank v. Social Security Administration


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
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         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Daniel Patrick Moynihan United
    States Courthouse, 500 Pearl Street, in the City of New York, on
    the 16th day of December, two thousand nine.

    PRESENT:
              WILFRED FEINBERG,
              JOHN M. WALKER, Jr.,
              ROBERT A. KATZMANN,
                        Circuit Judges.
    __________________________________________

    Nancy M. Swainbank,

                       Plaintiff-Appellant,

                       v.                                    08-2015-cv

    Social Security Administration,
    Commissioner, Michael J. Astrue,

                       Defendant-Appellee.

    __________________________________________
FOR APPELLANT:        Nancy M. Swainbank, pro se, St. Albans, VT.

FOR APPELLEE:         Thomas D. Anderson, United States Attorney;
                      Carol J. Shea, Chief, Civil Division; Kevin
                      J. Doyle, Assistant United States Attorney,
                      Burlington, VT.


     Appeal from a judgment of the United States District Court

for the District of Vermont (Murtha, J., Niedermeier, M.J.).

     UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

     Appellant Nancy M. Swainbank, pro se, appeals the district

court’s judgment affirming a final decision of the Commissioner

of Social Security denying her application for disability

benefits.    We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on

appeal.

     When deciding an appeal from a denial of disability

benefits, we conduct a plenary review of the administrative

record.     See Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008);

see also Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)

(noting that the focus of review is the administrative ruling,

not the district court’s decision). We may set aside the

Commissioner’s decision only if the factual findings are not

supported by substantial evidence or if incorrect legal standards

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were applied.     See Burgess, 537 F.3d at 127; Halloran v.

Barnhart, 362 F.3d 28, 31 (2d Cir. 2004).      “Substantial evidence

means more than a mere scintilla.    It means such relevant

evidence as a reasonable mind might accept to support a

conclusion.”    Burgess, 537 F.3d at 127-28.

     Disability is defined by the Social Security Act, in

relevant part, as the “inability 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).      To

be eligible for disability benefits, the claimant must

demonstrate that she was disabled on the date she was last

insured for benefits.     See Arnone v. Bowen, 882 F.2d 34, 37-38

(2d Cir. 1989).    Here, the Commissioner determined that Swainbank

was last insured for benefits on December 31, 1984, and she has

not challenged that determination.

     The Social Security regulations set forth a five-step

sequential evaluation for adjudicating claims for disability

insurance benefits.     See 20 C.F.R. §§ 404.1520, 416.920.   This

Court has described the sequential evaluation process as follows:

          Essentially, if the Commissioner determines
          (1) that the claimant is not working, (2) that
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          he has a severe impairment, (3) that the
          impairment is not one [listed in Appendix 1 of
          the regulations] that conclusively requires a
          determination of disability, and (4) that the
          claimant is not capable of continuing in his
          prior type of work, the Commissioner must find
          him disabled if (5) there is not another type
          of work the claimant can do.

Burgess, 537 F.3d at 120 (internal quotations and citations

omitted) (alteration in original).   If an individual is found to

be not disabled at any step, the Commissioner need not proceed to

the next step.   See 20 C.F.R. § 404.1520(a) (“We follow a set

order to determine whether you are disabled . . . If we can find

that you are disabled or not disabled at any point in the review,

we do not review your claim any further.”); see also Williams v.

Apfel, 204 F.3d 48, 49 (2d Cir. 1999).   The claimant bears the

burden of proving that she suffers from a disability.      See

Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998).

     Here, the Administrative Law Judge applied the correct legal

standard in determining that Swainbank was not disabled through

the date she was last insured for benefits and, accordingly, in

denying her application at step two of the sequential evaluation

process, and substantial evidence supports this decision.        See

Burgess, 537 F.3d at 127-28.   We note, however, that the

government conceded at oral argument before this Court that

Swainbank is not precluded from presenting evidence that she


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suffered from a disabling sleep disorder prior to December 31,

1984.

     For the foregoing reasons, the judgment of the district

court is hereby AFFIRMED.
                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk


                              By:__________________________




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