Courtney v. Colvin

Filing 14

DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 10 Commissioner's Motion for Judgment on the Pleadings; and dismissing complaint in its entirety with prejudice. The Clerk of the Court is directed to close this case.. Signed by Hon. Michael A. Telesca on 6/21/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOHN COURTNEY,
Plaintiff,
-vs-

No. 1:14-CV-00793 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, John Courtney (“plaintiff”) brings

this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying his
applications

for

disability

insurance

benefits

(“DIB”)

and

supplemental security income (“SSI”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, the Commissioner’s
motion is granted.
II.

Procedural History
The

record

reveals

that

in

May

2011,

plaintiff

filed

applications for DIB and SSI, alleging disability beginning March
1, 2011. After his applications were denied, plaintiff requested a
hearing, which was held before administrative law judge Grenville
Harrop, III (“the ALJ”) on December 20, 2012. The ALJ issued an

unfavorable decision on March 5, 2013. The Appeals Council denied
review of that decision and this timely action followed.
III. The ALJ’s Decision
Initially, the ALJ found that plaintiff satisfied the insured
status requirements of the Act through June 30, 2012. At step one
of the five-step sequential evaluation, see 20 C.F.R. §§ 404.1520,
416.920,

the

ALJ

found

that

plaintiff

had

not

engaged

in

substantial gainful activity since March 1, 2011, the alleged onset
date. At step two, the ALJ found that plaintiff suffered from the
severe impairments

of

diabetes, diabetic

neuropathy,

diabetic

retinopathy, and stage three kidney disease. At step three, the ALJ
found that plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed impairment.
Before proceeding to step four, the ALJ found that plaintiff
retained the residual functional capacity (“RFC”) to perform light
work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), “except
that [he was] limited to frequently performing fine manipulations
with his hands and [was] unable to operate dangerous machinery or
drive a motor vehicle at night.” T. 24-25. At step four, the ALJ
found that plaintiff was capable of performing past relevant work
as a retail sales associate. Accordingly, the ALJ found that
plaintiff was not disabled and did not proceed to step five.
IV.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
2

findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

Reliance on Opinions of Consulting Examiners

Plaintiff contends that the ALJ’s reliance on two consulting
examining

opinions

resulted

in

an

RFC

finding

that

was

not

supported by substantial evidence. Dr. Donna Miller completed the
first examination on September 28, 2010. Plaintiff reported to
Dr. Miller that he suffered from diabetic retinopathy and that he
was

scheduled

to

have

right

eye

laser

surgery

in

October.

Plaintiff’s corrected vision was 20/50 in the right eye and 20/25
in the left, with both eyes 20/25 on a Snellen chart at 20 feet.
Otherwise, his physical examination was normal. Dr. Miller opined
that plaintiff had “mild limitation with repetitive motion of his
hands secondary to his neuropathy.” T. 228.
Dr. Samuel Balderman completed a second consulting examination
on July 5, 2011. Plaintiff reported that he had had laser surgery
on both eyes, and was scheduled for cataract surgery the next week.
Plaintiff demonstrated 20/40 vision in the right eye, 20/25 vision
in the left, and both eyes 20/25 on a Snellen chart at 20 feet.
Plaintiff’s

physical

examination

was

otherwise

normal.

Dr. Balderman opined that plaintiff “appear[ed] to have mild visual
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impairment due to his diabetes,” noting that he was “scheduled to
have a surgical procedure on the right eye next week.” T. 298.
The ALJ gave “substantial weight” to Dr. Miller’s opinion,
which he incorrectly stated was completed in November 2011. T. 26.
The ALJ did not explicitly weigh Dr. Balderman’s opinion, but noted
that his “examination elicited virtually identical findings as
those of Dr. Miller.” Id. Plaintiff contends that the ALJ’s mistake
as to the date of Dr. Miller’s examination was prejudicial, because
plaintiff’s alleged onset date was March 2011 and Dr. Miller’s exam
was performed in September 2010. Plaintiff further contends that
the examinations of Drs. Miller and Balderman “were not reasonably
tailored to the nature of [plaintiff’s] conditions, and thus could
not amount to substantial evidence.” Doc. 7-1 at 12. Plaintiff
requests that the case be “remanded for medical expert testimony
based on a longitudinal knowledge of [plaintiff’s] complex chronic
diseases.” T. 11.
Initially, the Court finds that the ALJ’s misstatement of the
date of Dr. Miller’s examination was harmless error. As the ALJ
noted, Dr.

Miller’s

examination

yielded

essentially

identical

results as Dr. Balderman’s. Dr. Miller’s examination was thus
support

for

a

conclusion

that

plaintiff’s

condition

had

not

appreciably worsened from the time that Dr. Miller examined him to
the time Dr. Balderman did so.
The Court finds that the RFC finding was based on substantial
evidence, which included the consulting examinations of Drs. Miller

4

and

Balderman,

physicians
Dr.

and

Theodore

as
a

well

as

consulting

Prawak.

Dr.

treatment

notes

opthalmological

Prawak,

who

from

plaintiff’s

examination

examined

from

plaintiff

in

September 2011 at the request of the state agency, opined that
plaintiff had 20/20 corrected vision in the right eye and 20/20 -1
(indicating that plaintiff missed one letter on the line) in the
left. He noted that plaintiff had right pseudophakia1 and an
“extremely constricted peripheral visual field” in the right eye,
but opined that plaintiff’s vision was “good enough to safely
operate a motor vehicle [and] read,” but that plaintiff could not
operate

dangerous

machinery

and

climb

heights.

The

ALJ

gave

Dr. Prawak’s opinion “strong weight.” T. 26.
The opinions of Drs. Miller, Balderman, and Prawak provided
substantial evidence supporting the ALJ’s RFC determination. See,
e.g., Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011) (“The
report of a consultative physician may constitute . . . substantial
evidence.”)

(citing

Mongeur

v.

Heckler,

722

F.2d

1033,

1039

(2d Cir. 1983) (per curiam)). Additionally, the RFC was supported
by plaintiff’s treatment records, which demonstrated unremarkable
physical examinations, as well as plaintiff’s reports of daily
activities, which included showering, washing dishes for 15 to 20

1

Pseudophakia refers to an artificial lens implanted after
the natural eye lens has been removed. During cataract surgery the
natural cloudy lens is replaced by an pseudopakia intraocular lens
(IOL).
5

minutes at a time, washing laundry in his basement, shopping, and
lifting and carrying up to 30 pounds.
Moreover, the ALJ correctly concluded that an April 18, 2011
letter from treating endocrinologist Dr. Toni Spinaris which opined
that plaintiff was “unable to work due to diabetic eye disease” was
an opinion on an issue reserved to the Commissioner, i.e., the
ultimate determination of disability. See Harris v. Astrue, 935 F.
Supp.

2d

603,

609

(W.D.N.Y.

2013)

(citing

20

C.F.R.

§§ 404.1527(e)(1), 416.927(e)(1), aff’d sub nom., Harris v. Colvin,
561 F. App’x 81 (2d Cir. 2014). In any event, that opinion was
temporary in nature, noting that plaintiff currently had left eye
cataract surgery scheduled and his right eye was healing slowly
from prior surgery; and the opinion indicated that plaintiff was
able to drive, but not past 6:00 p.m. Thus, Dr. Spinaris’ opinion
did not significantly contradict the remaining evidence of record,
which indicated that plaintiff’s eyes improved following surgeries,
and that he was able to drive, albeit only during daylight,
notwithstanding his eye impairment.
As to plaintiff’s argument that the consulting examinations
were

not

“reasonably

tailored”

to

“uncovering”

plaintiff’s

limitations, the Court notes that it was plaintiff’s ultimate
burden to furnish evidence proving disability, and plaintiff was
represented by an attorney at the hearing level. See Long v. Bowen,
1989 WL 83379, *4 (E.D.N.Y. July 17, 1989) (“Even though the ALJ
has an affirmative obligation to develop the record, it is the

6

plaintiff’s burden to furnish such medical and other evidence of
disability as the Secretary may require.”) (internal citations
omitted). The record does not indicate any further limitations that
would

have

been

“uncovered”

with

more

tailored

physical

examinations. Rather, as discussed above, substantial evidence
supports the ALJ’s RFC finding.
B.

Failure to Develop the Record

Plaintiff contends that the ALJ failed to fully develop the
record, arguing that the ALJ had an affirmative duty to recontact
Dr. Spinaris in order to “clarify” her opinion. This “opinion,” an
April 18, 2011 letter “to whom it may concern,” simply stated that
plaintiff was currently unable to work due to diabetic eye disease.
T. 447. As noted above, this opinion stated that plaintiff was able
to drive but not at night, that his right eye was “healing slowly
from prior surgery,” and that he had cataract surgery scheduled for
his left eye. This letter did not delineate any limitations other
than that plaintiff should not drive at night, but merely opined
that plaintiff was “unable to work,” which, as discussed above, is
an opinion on a matter reserved to the Commissioner. See, 935 F.
Supp. 2d at 609.
Moreover, there is nothing about this letter that is unclear;
therefore, the Court finds that the ALJ did not have a duty, in
this particular situation, to further clarify the opinion with
Dr. Spinaris. This record was complete with “no obvious gaps,” and
therefore the ALJ was “under no obligation to seek additional
7

information in advance of rejecting [plaintiff’s] benefits claim.”
Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (internal
quotation marks omitted).
V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings (doc. 7) is denied and the Commissioner’s motion
(doc. 10) is granted. The ALJ’s finding that plaintiff was not
disabled is supported by substantial evidence in the record, and
accordingly, the complaint is dismissed in its entirety with
prejudice.

The Clerk of the Court is directed to close this case.

SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

June 21, 2017
Rochester, New York.

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