     10-5097-cv
     Vilardi v. Astrue



                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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.



            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 10th day of January, two thousand twelve.

     PRESENT:
                 DENNIS JACOBS,
                       Chief Judge,
                 PIERRE N. LEVAL,
                 DEBRA ANN LIVINGSTON,
                       Circuit Judges.
     _________________________________________

     Tommasa Vilardi,

                         Plaintiff-Appellant,

                         v.                                                  10-5097-cv

     Michael J. Astrue, Commissioner of Social Security,

                 Defendant-Appellee.*
     _________________________________________

     FOR APPELLANT:                     Tommasa Vilardi, pro se, Ridgewood, NY.



               *
                   The Clerk of Court is respectfully directed to amend the caption to conform to this
     order.
     FOR APPELLEE:                  Varuni Nelson and Kathleen A. Mahoney, for Loretta E.
                                    Lynch, United States Attorney, Eastern District of New
                                    York, Brooklyn, NY.

 1          Appeal from a judgment of the United States District Court for the Eastern District

 2   of New York (Garaufis, J.).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 4   AND DECREED that the judgment of the district court is AFFIRMED and Appellant’s

 5   request for oral argument is DENIED.

 6          Tommasa Vilardi, pro se, challenges (a) the grant, under Federal Rule of Civil

 7   Procedure 12(c), of a motion by the Commissioner of Social Security (“Commissioner”) to

 8   dismiss Vilardi’s action seeking judicial review of a final decision of the Commissioner,

 9   and (b) the denial of Vilardi’s Rule 12(c) cross-motion. We assume the parties’ familiarity

10   with the underlying facts, procedural history of the case, and issues on appeal.

11          “We review de novo a district court’s decision to grant a motion for judgment on

12   the pleadings pursuant to Federal Rule of Civil Procedure 12(c).” Hayden v. Paterson, 594

13   F.3d 150, 160 (2d Cir. 2010). “In reviewing a district court’s decision upholding a decision

14   of the Commissioner, we ‘review the administrative record de novo to determine whether

15   there is substantial evidence supporting the Commissioner’s decision and whether the

16   Commissioner applied the correct legal standard.’” Zabala v. Astrue, 595 F.3d 402, 408

17   (2d Cir. 2010) (quoting Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)); see also 42

18   U.S.C. § 405(g) (providing that, if there is substantial evidence in the record to support the

19   Commissioner’s findings, such findings are “conclusive”); Moran v. Astrue, 569 F.3d 108,

20   112 (2d Cir. 2009) (“Substantial evidence means more than a mere scintilla. It means such

                                                   2
 1   relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

 2   (citation and internal quotation marks omitted)). “We therefore focus our attention on the

 3   administrative ruling rather than on the decision of the district court.” Pratts v. Chater, 94

 4   F.3d 34, 37 (2d Cir. 1996). However, “[i]t is not our function to determine de novo

 5   whether [a claimant] is disabled.” Id.

 6           Ultimately, the determination of whether a claimant is disabled is “reserved to the

 7   Commissioner.” 20 C.F.R. § 404.1527(e). “While the opinions of a treating physician

 8   deserve special respect, they need not be given controlling weight where they are

 9   contradicted by other substantial evidence in the record.” Veino v Barnhart, 312 F.3d 578,

10   588 (2d Cir. 2002) (citations omitted). Likewise, a claimant’s subjective report of her

11   symptoms is not controlling but must be supported by medical evidence. See 42 U.S.C. §

12   423(d)(5)(A); 20 C.F.R. § 404.1529.

13           The administrative law judge (“ALJ”) found that Vilardi was not disabled because,

14   despite her alleged impairments, she retained the residual functional capacity to perform

15   her past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). The ALJ cogently set forth his

16   reasons for and the substantial evidence relied upon in discounting both Vilardi’s treating

17   physician’s opinion and her alleged symptoms. On appeal, Vilardi primarily relies on a

18   November 2007 doctor’s report and MRI. Vilardi’s reliance on evidence demonstrating a

19   worsening of her condition after that date is of little value, because she was required to

20   demonstrate that she was disabled as of March 31, 2007, the date on which she was last

21   insured. See 42 U.S.C. § 423(a)(1)(A); Arnone v. Bowen, 882 F.2d 34, 38 (2d Cir. 1989).

22   Consequently, her reliance on evidence demonstrating a worsening of her condition after

23   that date is of little value.
                                                   3
 1          Vilardi points to a 1993 MRI and 2001 CT-scan, but both results pre-dated the

 2   alleged January 1, 2002 onset date of her disability. Moreover, she identifies no material

 3   errors in the ALJ’s factual findings that are relevant to the alleged medical conditions she

 4   raises on appeal.2 In deciding whether substantial evidence exists, the Court must defer to

 5   the Commissioner’s resolution of conflicting evidence. See Clark v. Comm’r of Soc. Sec.,

 6   143 F.3d 115, 118 (2d Cir. 1998). So even assuming that Vilardi’s conditions have

 7   arguable support in the record, the ALJ’s decision--to accord more weight to substantial

 8   evidence that conflicted with Vilardi’s treating physician’s opinion and her alleged

 9   symptoms--cannot be disturbed.

10          As to Vilardi’s request for oral argument, argument is unnecessary to dispose of

11   this appeal. See Fed. R. App. P. 34(a)(2).

12          For the foregoing reasons, the judgment of the district court is hereby AFFIRMED

13   and Appellant’s request for oral argument is DENIED.

14

15                                                 FOR THE COURT:
16                                                 Catherine O’Hagan Wolfe, Clerk
17

18

19




            2
             In her appellate brief, Vilardi does not raise any issue with regards to the ALJ’s findings
     concerning her chest pains, foot surgery, and toxoplasmosis. Accordingly, such issues are
     deemed waived. See LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995).


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