Dailey v. Colvin

Filing 13

DECISION AND ORDER granting 6 Plaintiff's Motion for Judgment on the Pleadings to the extent the matter is remanded for further administrative proceedings consistent with this Decision and Order; denying 8 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/14/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATRICK J. DAILEY,
DECISION AND ORDER
1:14-cv-00841-MAT

Plaintiff,
-vsCAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

INTRODUCTION
Represented

by

counsel,

Patrick

J.

Dailey

(“Plaintiff”)

instituted this action pursuant to Titles II and XVI of the Social
Security Act (“the Act”), seeking review of the final decision of
the Acting Commissioner of Social Security (“the Commissioner”)1
denying his application for Disability Insurance Benefits (“DIB”)
and

Supplemental

Security

Income

(“SSI”).

This

Court

has

jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS
Plaintiff

protectively

filed

an

application

for

DIB

on

January 30, 2012, alleging that he was disabled commencing July 13,
2010, due to blindness in his left eye and chronic headaches.
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).

(T.130-31, 170, 174).2 The application was denied initially on
March 8, 2012 (T.44-50, 62), and was denied on reconsideration on
April 26, 2012 (T.51-59, 64-69). On May 1, 2012, concurrently with
his written request for a hearing, Plaintiff filed an application
for SSI

(T.15), alleging disability with an onset date of July 13,

2010. On May 30, 2013, Plaintiff appeared with his attorney for a
hearing before Administrative Law Judge William E. Straub (“the
ALJ”) in Buffalo, New York. (T.27-43). Plaintiff testified, but the
ALJ did not call any witnesses. The ALJ issued an unfavorable
decision (T.15-22) on June 24, 2013.
The Appeals Council denied Plaintiff’s request for review
(T.1-4) on August 15, 2014, making the ALJ’s decision the final
decision of the Commissioner. Represented by new counsel, Plaintiff
timely commenced this action.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Court adopts and incorporates by reference herein the undisputed
and comprehensive factual summaries contained in the parties’
briefs. The record will be discussed in more detail below as
necessary to the resolution of this appeal. For the reasons that
follow, the Commissioner’s decision is reversed, and the matter is

2

Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.

-2-

remanded for further administrative proceedings consistent with
this opinion.
THE ALJ’S DECISION
The ALJ followed the five-step procedure established by the
Commissioner

for

evaluating

disability

claims.

See

20

C.F.R.

§§ 404.1520, 416.920.
At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since July 13, 2010, his alleged onset
date. (T.17). At step two, the ALJ found that Plaintiff’s only
severe impairment was left eye blindness. (T.17-18). 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. (T.18).
The ALJ then determined that Plaintiff has 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 “should avoid
concentrated exposure to hazards (machinery, heights, etc.) due to
his monocular vision.” (T.18).
At step four, the ALJ found that Plaintiff, who was 37 yearsold on the alleged onset date and had a high school diploma, was
unable to perform his past relevant work as a hospital cleaner and
maintenance

worker,

a

foreman (irrigation/landscaping),

operator, or a truck driver/arborist. (T.21).

-3-

a

tow

At step five, the ALJ relied on Medical-Vocational Rule 202.21
to find that Plaintiff was not disabled. (T.21-22).
SCOPE OF REVIEW
A decision that a claimant is not disabled must be affirmed if
it is supported by substantial evidence, and if the ALJ applied the
correct legal

standards.

See

42

U.S.C.

§ 405(g).

“Where

the

Commissioner’s decision rests on adequate findings supported by
evidence having rational probative force, [the district court] will
not substitute [its] judgment for that of the Commissioner.” Veino
v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). This deferential
standard is not applied to the Commissioner’s application of the
law, and the district court must independently determine whether
the Commissioner’s decision applied the correct legal standards in
determining that the claimant was not disabled. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984). Failure to apply the correct
legal standards is grounds for reversal. Id. Therefore, this Court
first reviews whether the applicable legal standards were correctly
applied, and, if so, then considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
DISCUSSION
I.

Failure to Develop the Record and Error at Step Two
Although “[t]he claimant has the general burden of proving

that he or she has a disability within the meaning of the Act,”
“because a hearing on disability benefits is a non-adversarial
-4-

proceeding, the ALJ generally has an affirmative obligation to
develop the administrative record.” Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008) (internal quotation marks and brackets
omitted).

This

represented
(2d

Cir.

by

duty

is

counsel.”

2009).

“[W]here

present
Moran

“[e]ven
v.

there

when

Astrue,

are

no

a

569

obvious

claimant

F.3d

is

108, 112

gaps

in

the

administrative record, and where the ALJ already possesses a
‘complete medical history,’ the ALJ is under no obligation to seek
additional information. . . .” Rosa v. Callahan, 168 F.3d 72, 79
n.5 (2d Cir. 1999) (quoting Perez v. Chater, 77 F.3d 41, 48
(2d Cir. 1996)).
Plaintiff underwent retinal repair surgery on his right eye on
June 27, 2012, which was performed by Dr. Parks at the Florida Eye
Clinic. Plaintiff received follow-up care from Dr. Parks and later
from Dr. Nguyen at a different clinic. (T.20, 223, 319). Plaintiff
faults the ALJ for failing to obtain the records regarding the June
2012 surgery and post-operative care.
The records indicate that Plaintiff had experienced a retinal
detachment in his right eye in June 2012, and had undergone surgery
to repair it. (See T.318 (9/26/12 exam notes of Dr. Thomas R.
Elmer, Jr.; stating that “Pt reports hx of Retinal Detachments Od
[right eye]/Os [left eye]. . . . Had repair Od [right eye] 6-2012
and now has cataract to be removed”); see also T.341-43). And, in
his decision, the ALJ acknowledged that Plaintiff had a detached

-5-

retina in his right eye which was surgically repaired in June of
2012. (T.19). The absence of the actual surgical records and postoperative care notes regarding Plaintiff’s June 2012 eye surgery
thus create an “obvious gap” in the record.
This omission was not harmless because Plaintiff’s detached
right retina was a “severe” impairment that the ALJ erroneously
failed to include at step two of the sequential evaluation, even
though step two’s “severity” requirement is de minimus, meant only
to screen out the weakest of claims. Dixon v. Shalala, 54 F.3d
1019, 1030 (2d Cir. 1995). The Regulations define a “severe”
impairment as one that “significantly limits” a claimant’s ability
to perform “basic work activities,” which in turn are defined as
“the abilities and aptitudes necessary to do most jobs,” such as
“walking, standing, sitting, lifting, [etc.]”, “[c]apacities for
seeing, hearing, and speaking,” and “[u]nderstanding, carrying out,
and remembering simple instructions.” 20 C.F.R. §§ 404.1521(b),
416.921(b). Based on Plaintiff’s testimony and the other record
evidence, the detached right retina, although it was repaired, had
significant and lingering effects on Plaintiff’s “[c]apacit[y] for
seeing. . . .” Id.
Accordingly, the Court finds that remand is warranted so that
the record can be supplemented with the actual surgical records and
post-operative care notes regarding Plaintiff’s June 2012 surgery
on his right eye to repair his detached retina. The ALJ also is

-6-

directed to perform a renewed step two analysis, taking into
account Plaintiff’s status post-retinal detachment repair surgery
his right eye.
II.

Erroneous Rejection of New Evidence by Appeals Council
The Appeals Council is required to consider “new and material”

evidence “if it relates to the period on or before the date of the
[ALJ’s] hearing decision.” 20 C.F.R. §§ 404.970(b); 416.1470(b).
“This regulation was promulgated by the [Commissioner] to provide
claimants a final opportunity to submit additional evidence before
the [Commissioner]’s decision becomes final.” Perez v. Chater, 77
F.3d 41, 45 (2d Cir. 1996). Evidence is “material” if it is “both
relevant to the claimant’s condition during the time period for
which benefits were denied and probative[,]” and there is “a
reasonable possibility that the new evidence would have influenced
the [Commissioner] to decide claimant’s application differently.”
Lisa v. Sec’y of Dep’t of Health and Human Servs. of U.S., 940 F.2d
40, 43 (2d Cir. 1991) (quotation and citation omitted). Thus, the
Court must distinguish between evidence that reflects on the
severity of the claimant’s impairment as it existed during the time
for which benefits were denied, and evidence pertinent to a new
impairment(s) that would not have affected the ALJ’s decision. See,
e.g., Bosmond v. Apfel, No. 97 Civ. 4109, 1998 WL 851508, at *11–13
(S.D.N.Y.
evidence

Dec.

8,

pertained

1998)
to

new

(finding
medical

-7-

that

claimant’s

diagnoses

additional

including

spinal

stenosis and arthritis, while the record before the ALJ involved
only claimant’s carpal tunnel syndrome; holding that the new
evidence did not indicate that claimant was disabled at the prior
relevant periods by her more recently diagnosed problems) (citation
omitted).
At

issue

here

is

a

Vision

Impairment

RFC

Questionnaire

completed by Dr. John Rundquist, an optometrist at the Western
New York Center for the Visually Impaired, on January 29, 2014.
(T.5-7). Dr. Rundquist indicated that he had seen Plaintiff once,
on

December

18,

2013.

Dr.

Rundquist

stated

that,

after

best

correction, Plaintiff’s visual acuity in his left eye (“OS”) was
only “light perception”; in his right eye (“OD”), it was 20/63. As
diagnoses, Dr. Rundquist indicated retinal wrinkle and retinal
detachment, with an “unknown” prognosis. Due to these diagnoses,
Plaintiff experienced increased difficulty with reading, and needed
magnification in order to read newspaper-sized print. Dr. Rundquist
opined

that

Plaintiff

would

experience

occasional

visual

limitations in a competitive work situation. As far as specific
limitations on work-related functions, Dr. Rundquist estimated that
Plaintiff could frequently perform work activities involving near
acuity, far acuity, color vision, and field of vision; could rarely
perform work involving accommodation (i.e., focusing on an object
as its distance changes); and could never perform work involving
depth perception. Dr. Rundquist rated Plaintiff’s overall visual

-8-

limitations

(if

Plaintiff

were

placed

in

a

competitive

work

situation) as occasional, that is, occurring only 6% to 33% of an
8-hour workday. Dr. Rundquist opined further that Plaintiff was
capable of avoiding ordinary hazards in the workplace (such as
boxes on the floor, doors left ajar, and approaching people or
vehicles), had no difficulty walking up and down stairs, and could
work with both small objects and large objects. Plaintiff could
drive safely, but only during the daytime.

The last numbered item

the form stated, “Has your patient been limited as stated above
since at least June of 2012, the date the retina in his right eye
detached.” (T.7). Perhaps because this statement had a period
rather than a question mark at the end of it, Dr. Rundquist did not
provide an answer. However, the Appeals Council apparently relied
on

the

lack

of

an

answer

to

find

that

Dr.

Rundquist’s

RFC

questionnaire did not relate to the period prior to the ALJ’s
decision, and therefore could not be considered. See

Xu v.

Barnhart, No. CV–04–3927, 2006 WL 559263, at *6 (E.D.N.Y. Mar. 7,
2006) (“Evidence that relates to a claimant’s condition after the
administrative

hearing

may

not

be

considered

by

the

Appeals

Council.”). This was erroneous insofar as it was based on an
incomplete record; Dr. Rundquist was asked, but failed to answer,
the critical

question

of whether

his opinion

related

to

the

relevant time-period. Remand is warranted so that Dr. Rundquist may
clarify his opinion, and, assuming that it relates to the period of

-9-

time under consideration, the ALJ may consider Dr. Rundquist’s
opinion in formulating a new RFC.
III. RFC Unsupported by Substantial Evidence Due to Failure to
Obtain an Additional Medical Expert Opinion
Plaintiff argues that the RFC is unsupported by substantial
evidence because the record contains only one medical opinion, from
a reviewing consultant, that did not include all of Plaintiff’s
vision impairments. Defendant notes that the Second Circuit has
stated that “remand is not always required when an ALJ fails in his
duty to request opinions, particularly where . . . the record
contains sufficient evidence from which an ALJ can assess the
[claimant]’s residual functional capacity.”

Tankisi v. Comm’r of

Soc. Sec., 521 Fed. Appx. 29, 34 (2d Cir. 2013) (summary order)
(ALJ’s failure to request treating physician opinion did not
require remand because, inter alia, medical record was “extensive”
and contained another treating source opinion). In this case, the
only medical expert opinion in the file was from a non-examining
State agency consultant, Dr. Berger, whose review of the record
pre-dated Plaintiff’s detached right retina, and surgery to repair
it, in June of 2012. Thus, Dr. Berger’s opinion is incomplete
because it does not take into account the vision limitations in
Plaintiff’s right eye that followed his retinal detachment. There
is, therefore, an “obvious gap” in the record because the record
contains no

medical

opinions

covering

-10-

a period

of

time

that

Plaintiff incurred a new, significant medical problem. Remand
accordingly is required on this basis.
IV.

Erroneous Credibility Assessment

When an individual has a medically determinable impairment
that could reasonably be expected to produce the symptoms alleged
but the objective evidence does not substantiate the alleged
intensity and persistence of the symptoms, the ALJ must consider
other factors in assessing the individual’s subjective symptoms,
including (1) the claimant’s daily activities; (2) the nature,
duration,
(3)

frequency

precipitating

and

and

intensity

aggravating

of

factors;

her
(4)

the

symptoms;
type

of

medication and other treatment or measures which the claimant uses
to relieve pain and other symptoms; (5) treatment other than
medication the claimant has received for relief of pain and other
symptoms; (6) any other measures used by the claimant to relieve
pain and other symptoms; and (7) other factors concerning the
claimant’s functional limitations and restrictions due to pain or
other symptoms. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). “On
appeal, the court’s proper function is merely to determine whether
the appropriate legal standards have been applied and assess
whether the [Commissioner]’s findings of fact are supported by
substantial evidence.” Mimms v. Heckler, 750 F.2d 180, 185–86
(2d Cir. 1984).

-11-

The

Court

subjective

finds

symptoms

that
was

the

ALJ’s

legally

assessment

flawed

and

of

not

Plaintiff’s

supported

by

substantial evidence because it cherry-picked evidence from the
record that purported to detract from Plaintiff’s credibility. In
particular, the ALJ focused solely on Plaintiff’s limited daily
activities to the exclusion of the multiple other factors that the
Regulations

instruct

ALJs

to

consider.

See

20

C.F.R.

§§ 404.1529(c)(3), 416.929(c)(3).
Courts have consistently noted that “[i]t is legal error to give
excessive weight to a claimant’s ability to perform basic daily
activities when assessing his or her ability to engage in substantial
gainful activity.” Moss v. Colvin, No. 1:13-CV-731-GHW-MHD, 2014 WL
4631884, at *33 (S.D.N.Y. Sept. 16, 2014)(citing
Soc.

Sec.,

No.

06–CV–3174(ENV)(MDG),

2011

Brown v. Comm’r of
WL

1004696,

at

*5

(E.D.N.Y. Mar. 18, 2011)). “There are critical differences between
activities of daily living (which one can do at his own pace when he
is able) and keeping a full time job.” Id. (citing Bjornson v.
Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (“The critical differences
between activities of daily living and activities in a full-time job
are that a person has more flexibility in scheduling the former than
the latter, can get help from other persons . . . , and is not held
to a minimum standard of performance, as she would be by an employer.
The failure to recognize these differences is a recurrent, and
deplorable, feature of opinions by administrative law judges in

-12-

social security disability cases.”)). Thus, to the extent that
Plaintiff’s daily activities were properly considered, the ALJ failed
to place the burden on the Commissioner to show that those activities3
were evidence of the RFC to perform full-time competitive gainful
employment at the light exertional level. See, e.g., Balsamo v.
Chater, 142 F.3d 75, 81–82 (2d Cir. 1998); see also Brown, 2011 WL
1004696, at *5 (“[T]here is no indication in the ALJ’s decision that
the Commissioner was required to reckon how Brown’s occasional
outings, relationship with a girlfriend, and episodic driving add up
to an ability to sit upright for six hours every workday as required
by SSA regulations.”).
The ALJ also “cherry picked” evidence from the record by giving
excessive weight to Plaintiff’s receipt of unemployment benefits from
August 2010, to May 2012, and his statement that he felt he was
capable of work prior to suffering a detached retina in his right eye
in June 2012. (T.20). However, Plaintiff also testified, that after
June 2012, he did not feel he could work any more due to the
sequellae of his right retinal detachment. The ALJ ignored this
testimony.
Prior to June 2012, Plaintiff had loss of vision in his left eye
but normal vision in his right eye; however, after June 2012,
Plaintiff had significant loss of vision in both eyes. The ALJ’s
3

Plaintiff testified to doing dishes, vacuuming, and other “simple things
around the house to help out.” (T.34). He commented that “everything is a slow
process.” (Id.).

-13-

credibility assessment ignores a substantial portion of the record
and fails to account for the limitations due to Plaintiff’s detached
right retina. Plaintiff testified, for example, that he cannot read
a newspaper without a magnifying glass and has no depth perception.
(T.33-34, 40). The ALJ did not cite any medical evidence to dispute
these statements. The Court notes that Dr. Rundquist’s opinion, which
was rejected by the Appeals Council, supports Plaintiff’s allegations
of lack of depth perception and inability to read a newspaper without
magnification. On remand, it is likely that the ALJ will need to
consult a vocational expert regarding the effects of Plaintiff’s lack
of depth perception and decreased visual acuity on the occupational
base. See, e.g., Santiago v. Apfel, No. 96 CIV. 6521(MBM), 1998 WL
247504, at *7 (S.D.N.Y. May 15, 1998) (“[T]his case is remanded for
further

fact

nonexertional
particular,

finding

with

impairments

significantly

in

respect

to

whether

general,

and

his

diminish

the

range

of

poor

plaintiff’s
vision

sedentary

in

work

available to him. If, under this standard, it appears that the range
of work available to plaintiff is significantly diminished, the
Commissioner then must produce either testimony from a vocational
expert or other similar evidence showing the existence of jobs in the
national economy for someone with plaintiff’s limitations.”) (citing
Bapp v. Bowen, 802 F.2d 601, 606 (2d Cir. 1986)).

-14-

CONCLUSION
For

the

foregoing

reasons,

the

Commissioner’s

motion

for

judgment on the pleadings is denied, Plaintiff’s motion for judgment
on the pleadings is granted to the extent that the Commissioner’s
decision

is

reversed,

and

the

matter

is

remanded

for

further

administrative proceedings consistent with this Decision and Order.
In particular, as discussed more fully above, the ALJ is directed to
obtain all records pertinent to Plaintiff’s June 2012 right retinal
detachment, surgery, and after-care; obtain an updated visual RFC
assessment from one of Plaintiff’s treating physicians; recontact Dr.
Rundquist and obtain clarification as to the time-period covered by
his RFC assessment and, if it covers the relevant time, consider Dr.
Rundquist’s RFC assessment; complete a step two severity analysis,
formulate a new RFC assessment; re-assess Plaintiff’s credibility;
and consult a vocational expert, as necessary, to determine whether,
and to what extent, the particular limitations caused by Plaintiff’s
vision impairments erode the applicable occupational basis.
The Clerk of Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

June 14, 2017
Rochester, New York.

-15-