Wlodarczyk v. Colvin
DECISION AND ORDER granting 28 Motion for Summary Judgment to the extent that the matter is remanded for further administrative proceedings; denying 29 Motion for Judgment on the Pleadings; adopting Report and Recommendations in its entirety re 31 Report and Recommendations. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 10/25/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LEONARD P. WLODARCZYK,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social
Plaintiff Leonard P. Wlodarczyk (“plaintiff”) brings this
action pursuant to 42 U.S.C. § 405(g), alleging that defendant
Nancy A. Berryhill, the Acting Commissioner of Social Security
(“Commissioner” or “defendant”), improperly denied his applications
for disability insurance benefits and supplemental security income.
Currently before the Court are the parties’ competing motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
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
On June 19, 2017, Judge Scott issued an R&R (Docket No. 31)
recommending that plaintiff’s motion be granted to the extent that
the matter be remanded for further administrative proceedings and
that defendant’s motion be denied. For the reasons discussed below,
the Court agrees with Judge Scott’s findings and adopts the R&R in
When specific objections are made to a magistrate judge’s
report and recommendation, the district judge makes 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.
When no objections or only general objections are
made, the district judge reviews the report and recommendation for
clear error or manifest injustice. See, e.g., DiPilato v. 7-Eleven,
Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009). After conducting
the appropriate review, the district court may “accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
Plaintiff’s Arguments and Judge Scott’s R&R
In support of his motion for judgment on the pleadings,
plaintiff contended that the administrative law judge’s (“ALJ”)
decision finding him not disabled was not supported by substantial
evidence and was based on legal error.
In particular, plaintiff
argued that the ALJ improperly rejected the opinion of his treating
physicians, improperly found his testimony not credible, improperly
evaluated his combination of impairments, and improperly concluded
that he could perform sedentary work prior to September 15, 2010.
Judge Scott found that the ALJ had appropriately
weighed the opinions of plaintiff’s treating physicians, and had
adequately fulfilled his obligation to develop the record with
respect to the same.
Judge Scott further found that the ALJ’s
credibility determination was supported by substantial evidence.
However, Judge Scott ultimately determined that remand of this
matter for further administrative proceedings was necessary because
the ALJ had failed to make specific findings with respect to
whether plaintiff’s non-exertional limitations would permit him to
perform sedentary work.
In particular, Judge Scott found that the
incorporated into the ALJ’s residual functional capacity finding
would erode the light occupational base, but not the sedentary
Accordingly, Judge Scott recommended that
plaintiff’s motion be granted “on the limited basis of the ALJ’s
conclusions regarding plaintiff’s ability to perform sedentary
Docket No. 31 at 18.
The Commissioner’s Objections
The Commissioner has filed objections to Judge Scott’s R&R,
arguing that the applicable social security rulings (“SSRs”) compel
the conclusion that plaintiff’s visual impairments (namely, the
loss of vision in his left peripheral field, as the result of a
occupational base. The Commissioner points specifically to SSR 969p, which states that a need to avoid all exposure to hazards such
as exposed heights and moving mechanical parts does not, by itself,
significantly erode the sedentary occupational base; SSR 85-15,
restricted only from being on unprotected elevations and near
environmental restriction does not have a significant effect on
work that exist at all exertional levels”; and SSR 83-14, which
observes that “the overwhelming majority of sedentary jobs are
See Docket No. 32 at 5.
further argues that the testimony of a vocational expert (“VE”)
from a hearing held in 2006 confirms this point, because that VE
testified that the loss of the left peripheral visual field would
restrict an individual from some light jobs, but would leave the
full unskilled sedentary occupational base intact.
Commissioner argues that, even assuming the ALJ did commit an
error, the error was harmless, because there is no plausible way in
which the ultimate conclusion could have been different.
In response to the Commissioner’s objections, plaintiff argues
that the Commissioner has misapprehended the extent of plaintiff’s
occupation base if, for example, the individual in questions is
“not able to avoid ordinary hazards in the workplace such as boxes
on the floor, doors ajar, or approaching people or vehicles.”
Docket No. 34 at 2.
Accordingly, plaintiff urges the Court to
adopt the R&R and to remand the case for further administrative
The Court has considered the record and the Commissioner’s
objections de novo, and concurs with Judge Scott that remand of
this matter is necessary.
As Judge Scott correctly found, the ALJ
limitations would significantly erode the sedentary occupational
Visual impairments such as plaintiff’s result are considered
non-extertional limitations. See, e.g., Sergenton v. Barnhart, 470
F. Supp. 2d 194, 202 (E.D.N.Y. 2007) (“Vision impairments are
omitted); Whittaker v. Comm'r of Soc. Sec., 307 F. Supp. 2d 430,
439 (N.D.N.Y. 2004) (“poor visual acuity” is a non-exertional
claimant can perform, . . . a vocational expert is necessary to
assess the claimant’s residual functional capacity for meaningful
Sergenton v. Barnhart, 470 F. Supp. 2d
194, 202 (E.D.N.Y. 2007).
The Court agrees with plaintiff that his specific visual
impairments (loss of vision in his left peripheral field) could
potentially impact his ability to observe and avoid hazards in the
Accordingly, the ALJ was required to solicit testimony
from a VE regarding the impact of his non-exertional limitations,
and to expressly consider whether they would result in erosion of
the sedentary occupational base.
He did not do so, and remand is
The Commissioner points out that at an earlier hearing, held
in 2006, a VE was called to testify and did in fact state that a an
individual whose visual limitations prevented the operation of
motor vehicles and prohibited exposure to hazards such as dangerous
heights and vehicles and cranes coming from multiple directions
could perform sedentary work.
However, that testimony was given
roughly five years prior to the issuance of the ALJ’s decision, and
was therefore stale.
Moreover, the ALJ made no reference to this
testimony in his decision, instead relying solely on the MedicalVocational Guidelines.
See Administrative Transcript 600-601.
Commissioner’s decision itself.”
Martinbeault v. Astrue, 2009 WL
For the foregoing reasons, and having considered the issue de
novo, the Court agrees with Judge Scott that remand of this matter
for additional consideration of the impact of plaintiff’s visual
Review of the Remainder of the R&R
With respect to the unobjected-to portions of the R&R, the
Court has reviewed Judge Scott’s findings and recommendations for
clear error and has found none.
Accordingly, the Court adopts the
R&R in total.
undersigned adopts all of his conclusions. The R&R (Docket No. 31)
is hereby adopted in its entirety.
The Commissioner’s motion for
judgment on the pleadings (Docket No. 29) is denied and plaintiff’s
motion for judgment on the pleadings (Docket No. 28) is granted to
the extent that the matter is remanded for further administrative
The Clerk of Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
October 25, 2017
Rochester, New York
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