Szuder v. Colvin

Filing 24

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is reversed and remanded for further administrative proceedings; denying 16 Commissioner's Motion for Judgment on the Pleadings; and adopting Report and Recommendations re 18 Report and Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/15/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DENNIS PHILLIP SZUDER,
Plaintiff,
-vs-

No. 1:15-CV-00258 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Dennis Phillip Szuder (“plaintiff”)

brings this action pursuant to Title II of the Social Security Act
(“the

Act”),

seeking

review

of

the

final

decision

of

the

Commissioner of Social Security (“the Commissioner”) denying his
application for disability insurance benefits (“DIB”). The Court
has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
The matter was initially before the Court on the parties’ cross
motions for judgment on the pleadings.1 The parties’ motions were
referred to Magistrate Judge Hugh B. Scott for consideration of the
factual and legal issues presented, and to prepare and file a
Report

and

Recommendation

(“R&R”)

containing

a

recommended

disposition of the issues raised.

1

This case was originally assigned to Judge Richard Arcara, who referred
it to Magistrate Judge Scott for a Report and Recommendation, which was completed
and filed on April 12, 2016. The case was referred to this Court by order dated
November 8, 2016.

By

R&R

dated

April

12,

2016,

Magistrate

Judge

Scott

recommended that this case be remanded for further consideration.
Doc. 14. The Commissioner filed Objections on April 18, 2016.
Doc. 19. For the reasons set forth below, the Court overrules the
Commissioner’s objections and adopts the R&R in its entirety.
II.

Procedural History
The record reveals that in September 2010, plaintiff (d/o/b

December 12, 1948) applied for DIB, alleging disability as of
February

2009.

After

his

application

was

denied,

plaintiff

requested a hearing, which was held before administrative law judge
Timothy McGuan (“the ALJ”) on February 15, 2012. The ALJ issued an
unfavorable decision on February 28, 2012. The Appeals Council
granted review of that decision and the ALJ reheard the case on
July

18,

2013.

He

issued

a

second

unfavorable

decision

on

August 19, 2013. The Appeals Council denied review of that decision
and this timely action followed.
III. Report and Recommendation
The

R&R

found

that

the

ALJ failed

to

properly

consider

plaintiff’s vertigo at step two of the sequential analysis. See
20 C.F.R. § 404.1520. The ALJ gave significant weight to the
consulting

opinion

of

Dr.

John

Schwab,

whose

opinion

noted

plaintiff’s report that he suffered dizziness “when he bends down
or rises too quickly,” as a result of vertigo. T. 506. After
examining plaintiff, Dr. Schwab opined that plaintiff “should avoid
any activity that triggers vertigo and balance problems.” T. 510.
2

The ALJ found that plaintiff retained the residual functional
capacity (“RFC”) to “perform medium work as defined in 20 C.F.R.
§ 404.1567(c) except that he must avoid concentrated exposure to
dangerous machinery and sharp instruments and objects. He must also
avoid work that requires full hearing in both ears and concentrated
exposure to excessive noise.” T. 16. The R&R found that this RFC
finding failed to properly account for the limitations stemming
from plaintiff’s vertigo. Because the ALJ’s RFC would necessarily
be altered on remand, the R&R also recommended that the ALJ obtain
vocational expert testimony on remand via hypothetical questions
sufficient to account for all of plaintiff’s limitations.
The Commissioner filed Objections to the R&R, arguing that the
ALJ properly considered plaintiff’s vertigo at step two, and
alternately, that any error at step two was harmless.
IV.

Discussion
When reviewing a magistrate judge’s report and recommendation,

a district court must “make a de novo determination of those
portions

of

the

report

or

specified

proposed

findings

or

recommendations to which objection is made[,]” 28 U.S.C. § 636(b),
and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge[.]” Id.
Where

an

objection

does

not

raise

new

arguments

but

merely

reiterates those raised on the original motion, the Court reviews
an R&R for clear error. See, e.g., Jaroszynski v. Barnhart, 2004 WL
1812706, *2 (W.D.N.Y. Apr. 28, 2004).
3

The Commissioner objects to the R&R, contending that the ALJ
properly accounted for limitations related to plaintiff’s vertigo
in his RFC finding, and alternately, that any error at step two was
harmless. This argument reiterates the Commissioner’s argument on
the original motion, see doc. 16-1, and therefore the Court reviews
the R&R for clear error. The Court finds none.
The Commissioner contends that the ALJ properly accounted for
limitations

stemming

from

plaintiff’s

vertigo

by

including

a

limitation in the RFC that plaintiff should “avoid concentrated
exposure to dangerous machinery and sharp instruments and objects.”
T. 16. However, Dr. Schwab’s consulting examination – upon which
the ALJ relied –

noted that plaintiff experienced problems with

bending due to vertigo, and the RFC makes no mention of bending
limitations. Moreover, an RFC for medium work, as the ALJ assessed,
contemplates frequent bending. See SSR 83-10. Thus, it is unclear
from

the

plaintiff’s

ALJ’s

RFC

vertigo

finding

whether

throughout

the

he

balance

properly
of

the

considered
sequential

evaluation process. As the R&R found, the step two error was
therefore

reversible

and

not

merely

harmless.

Cf.,

e.g.,

Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 311-12 (W.D.N.Y. 2013)
(“As a general matter, an error in an ALJ's severity assessment
with regard to a given impairment is harmless . . . when it is
clear that the ALJ considered the

claimant's [impairments] and

their effect on his or her ability to work during the balance of
the sequential evaluation process.” (emphasis added) (internal
4

quotation marks and citations omitted). Accordingly, the Court
adopts the R&R in its entirety. The Commissioner’s objections are
overruled.
V.

Conclusion
For the reasons discussed in this Decision and Order as well

as those set forth in the R&R, the Commissioner’s motion for
judgment on the pleadings (Doc. 16) is denied and plaintiff’s
motion (Doc. 10) is granted to the extent that this matter is
reversed and remanded for further administrative proceedings. The
Commissioner’s objections (doc. 19) are overruled. The Clerk of the
Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

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

November 15, 2016
Rochester, New York.

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