Aronica v. Commissioner of Social Security

Filing 14

DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment on the Pleadings and the matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 10 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 10/29/2018. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
JAMIE L. ARONICA,
1:17-CV-00927 (MAT)
DECISION AND ORDER

Plaintiff,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
____________________________________

INTRODUCTION
Jamie

L.

Aronica

(“Plaintiff”),

represented

by

counsel,

brings this action under Title II of the Social Security Act
(“the Act”), seeking review of the final decision of Nancy A.
Berryhill,

Acting

Commissioner”

or

Commissioner
“Defendant”),

of

Social

denying

her

Security
application

(“the
for

disability insurance benefits (“DIB”). The Court has jurisdiction
over the matter pursuant to 42 U.S.C. § 405(g). Presently 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. For the reasons set forth below, the Commissioner’s
decision is reversed, and the matter is remanded for further
proceedings consistent with this Decision and Order.
PROCEDURAL BACKGROUND
On August 16, 2012, Plaintiff protectively filed for DIB,
alleging disability beginning January 1, 2012. (Administrative
Transcript (“T.”) 264-65). The claim was initially denied on

October

2,

2012,

and

Plaintiff

timely

requested

a

hearing.

(T. 170-79). A hearing was conducted on December 5, 2013 in
Buffalo, New York by Administrative Law Judge Robert T. Harvey
(T. 77-100), who issued an unfavorable decision on February 11,
2014. (T. 144-57). Plaintiff timely requested review of the ALJ’s
decision by the Appeals Council. (T. 71-72). On June 5, 2015, the
Appeals Council remanded Plaintiff’s case for consideration of
new and material evidence. (T. 158-59).
A second hearing was conducted on November 12, 2015, in
Buffalo, New York by Administrative Law Judge Timothy M. McGuan
(“the ALJ”). (T. 101-34). Plaintiff appeared with her attorney
and testified. A vocational expert (“VE”) also testified.
The

ALJ

promulgated

by

applied
the

the

five-step

Commissioner

for

sequential

evaluation

adjudicating

disability

claims. See 20 C.F.R. § 404.1520(a). At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (T. 36). At step two, the ALJ found
that Plaintiff had the severe impairment of multiple sclerosis
(“MS”). (Id.). At step three, the ALJ found that Plaintiff does
not have an impairment or combination of impairments that meets
or medically equals the severity of any impairment in the Listing
of Impairments. (T. 37). Before proceeding to step four, the ALJ
found that Plaintiff had the residual functional capacity (“RFC”)
to perform light work as defined in 20 C.F.R. § 404.1567(b) with
-2-

certain restrictions. (T. 38). At step four, the ALJ determined
that Plaintiff is unable to perform any of her past relevant work
as a hairdresser. (T. 40). At step five, the ALJ found that
Plaintiff can perform the requirements of occupations such as a
mail

room

clerk

No.

209.687-026,

No.

299.667-014,

(Dictionary
light,
light,

of

Occupational

Titles

unskilled)

and

store

unskilled),

with

115,110

(“DOT”)

checker
and

(DOT
18,410

positions, respectively, in the national economy. (T. 41-42).
The ALJ issued an unfavorable decision on March 16, 2016.
(T.

31-46).

Plaintiff

timely

requested

review

of

the

ALJ’s

decision by the Appeals Council and submitted additional records
for

it

to

consider.

(T.

259).

The

Appeals

Council

denied

Plaintiff’s request for review on July 20, 2017, making the ALJ’s
decision

the

final

decision

of

the

Commissioner.

(T.

1-7).

Plaintiff then timely instituted this action.
SCOPE OF REVIEW
A

district

court

may

set

aside

the

Commissioner’s

determination that a claimant is not disabled only if the factual
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).
The district court must accept the Commissioner’s findings of
fact, provided that such findings are supported by “substantial
evidence”

in

the

record.

See
-3-

42

U.S.C.

§

405(g)

(the

Commissioner’s
substantial

findings

evidence,

“as

to

shall

any

be

fact,

if

supported

conclusive”).

by

“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) (quotation omitted). The reviewing
court nevertheless must scrutinize the whole record and examine
evidence that supports or detracts from both sides. Tejada v.
Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation omitted). “The
deferential standard of review for substantial evidence does not
apply

to

the

Commissioner’s

conclusions

of

law.”

Byam

v.

Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
DISCUSSION
Plaintiff

contends

that

remand

is

warranted

for

the

following reasons: (1) the Appeals Council erred in declining to
consider
applied

new
the

substantial

and

material

treating
evidence

evidence;

physician

(2)

supporting

rule;
the

the

(3)

ALJ

the

conclusion

improperly

ALJ

that

ignored
Plaintiff

suffers from steroid-induced psychosis which would cause her to
have frequent work absences; and (4) the ALJ failed to consider
Plaintiff’s visual impairment. Defendant argues that the ALJ did
not commit legal error and that his determination was supported
by substantial evidence and should be affirmed. For the reasons
discussed below, the Court finds that the Commissioner’s decision
-4-

is legally erroneous and unsupported by substantial evidence.
Therefore, the Court remands this matter to the Commissioner for
further proceedings consistent with this Decision and Order.
I.

The Appeals Council Failed to Consider New and Material
Evidence (Plaintiff’s Argument 4)
Plaintiff

argues

that

the

Appeals

Council

erred

by

not

considering the additional evidence she submitted. (Plaintiff’s
Brief (Docket No. 7-1) (“Pl’s Br.”) at 26-29). On July 20, 2017,
the Appeals Council rejected records from UBMD Physicians Group
dated October 8, 2015, to October 20, 2015, because they were not
new; records from UBMD Physicians Group dated December 1, 2015,
to December 3, 2015, because they did not show a reasonable
probability

that

they

would

change

the

ALJ’s

decision;

and

records from UBMD Physicians Group dated April 14, 2016, because
they

did

Plaintiff

not

affect

the

was disabled.

(T.

ALJ’s
2).

decision
The

about

Appeals

whether

Council

did

the
not

provide a reason for rejecting the June 7, 2016 MRI from Buffalo
General Hospital.
A claimant can submit additional evidence to the Appeals
Council. 20 C.F.R. § 416.1476(b)(1). The regulations require the
Appeals Council to consider the additional evidence if it is new,
material, and relates to the period on or before the date of the
ALJ’s decision. 20 C.F.R. § 416.1476(b)(2). Evidence “relates” to
the

disability

period

if

it

discloses

“the

severity

and

continuity of impairments existing before the earning requirement
-5-

date.”

Pollard

v.

Halter,

377

F.3d

183,

194

(2d

Cir.

2004)

(quoting Lisa v. Sec’y of Dep’t of Health and Human Servs. of
U.S., 940 F.2d 40, 43 (2d Cir. 1991) (quotation marks omitted).
“Materiality” requires, in addition, that there is “a reasonable
possibility
Secretary

that

to

the

decide

new
the

evidence

would

claimant’s

have

influenced

application

the

differently.”

Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1998).
Plaintiff’s

treating

physician,

neurologist

Dr.

David

Hojnacki, ordered her to undergo an MRI, which was performed on
June 7, 2016, at Buffalo General Hospital. The Appeals Council
provided no reason for declining to consider the record. This
error deprives the Court of the ability to conduct a meaningful
review. The Court cannot conclude the error was harmless since
the June 2016 MRI demonstrates a continuation and worsening of
Plaintiff’s MS. In particular, the MRI shows seven new contrastenhancing

lesions

hyperintense

in

lesions,

her
and

cervical
some

new

spine,
T1

twelve

hypointense

new

T2

contrast-

enhancing lesions. (T. 22). The Appeals Council plainly erred in
failing to provide a reason for rejecting this record.
The

Appeals

Council

also

rejected

records

from

UBMD

Physicians Group dated December 1, 2015, to December 3, 2015, and
April

14,

2016,

because

they

did

not

show

a

reasonable

probability that they would change the ALJ’s decision. However,
the records show that Plaintiff still displayed symptoms of MS
-6-

and

that

her

condition

was

not

in

prolonged

remission.

Her

December 2015 MRI indicated that Plaintiff’s abnormal MRI of her
brain

was

“consistent

with

multiple

sclerosis.”

(T.

49).

Likewise, her April 14, 2016 visit, indicated that Plaintiff
still

displays

symptoms

of

active

MS.

Plaintiff

displayed

a

decreased ankle jerk; decreased sensation to pinprick, pain, and
temperature in left hand and leg; and was assessed with muscle
weakness. (T. 25-27). She also reported increased numbness and
some

vision

changes.

(T.

30).

The

records

submitted

by

the

Plaintiff demonstrate that her condition was not in prolonged
remission. A possibility exists that these would have changed the
ALJ’s decision, as he assigned the most weight to the opinion of
consultative

examiner

Dr.

Hongbiao

Liu,

who

examined

the

Plaintiff before she had multiple flare-ups of her MS. Therefore,
the Appeals Council’s rejection of these records was erroneous,
and remand is required so the ALJ can consider these records.
The

Appeals

Council’s

rejection

of

records

from

UBMD

Physicians Group dated October 8, 2015, to October 20, 2015,
because they were not new, is supported by substantial evidence
as they were already part of the ALJ’s record. (T. 52-63, 561-68,
806-11). Therefore, the Appeals Council did not err with respect
to these records.

-7-

II.

The ALJ Failed to Properly Apply the Treating Physician Rule
(Plaintiff’s Argument 2)
Plaintiff also contends that the ALJ did not properly apply

the treating physician rule to the opinion of Dr. David Hojnacki,
the neurologist who treated Plaintiff for MS. Pl’s Br. at 21-24.
A

treating

physician’s

medical

opinion

will

be

given

controlling weight if it is well supported by medical findings
and

not

record.

inconsistent
Shaw

v.

with

Carter,

other

221

substantial

F.3d

126,

134

evidence
(2d

Cir.

in

the

2000).

Generally, ALJs will “give more weight to medical opinions from
[a claimant’s] treating sources, since these sources are likely
to be the medical professionals most able to provide a detailed,
longitudinal picture of [his or her] medical impairment(s) and
may bring

a

unique perspective

to

the medical

evidence that

cannot be obtained from the objective medical findings alone or
from reports of individual examinations, such as consultative
examinations

or

brief

hospitalizations.”

20

C.F.R.

§ 404.1527(c)(2). When an ALJ does not give a treating source’s
opinion controlling weight, the regulations require that he or
she consider a number of factors, including the length of the
treatment
nature

relationship

and

extent

and
of

the

frequency

the

treatment

of

examination,

relationship,

the
the

supportability of the opinion and its consistency with the record
as a whole, the physician’s area of specialization, and any other

-8-

relevant

factors

brought

to

the

ALJ’s

attention.

20

C.F.R.

§ 404.1527(c)(2)-(6).
Dr. Hojnacki, a neurologist specializing in the treatment of
MS,

diagnosed

Plaintiff

with

MS

in

2008.

Since

that

time,

Dr. Hojnacki has treated Plaintiff regularly at about six-month
intervals. The most recent treatment note from Dr. Hojnacki is
dated April 14, 2016. (See T. 24-30, 532-34, 541-42, 514-35, 55054,

569-80,

599-615).

Thus,

Dr.

Hojnacki

has

a

treatment

relationship with Plaintiff that spans approximately eight years.
On October 20, 2015, Dr. Hojnacki completed a Medical Source
Statement

Form

indicating

that

Plaintiff’s

MS

meets

the

requirements of Listing 11.09C in the Listing of Impairments,
20

C.F.R.

§

“[s]ignificant,
substantial

Pt.

404,

Subpt.

reproducible

muscle

weakness

P,

fatigue
on

App.
of

repetitive

1,

because

motor

she

function

activity,

has
with

shown

on

physical examination, that results from neurological dysfunction
in areas of the central nervous system known to be pathologically
involved by the multiple sclerosis process.” (T. 797). The ALJ
assigned Dr. Hojnacki’s opinion “little weight,” finding that it
was not supported by “his own clinical findings and examinations
[which showed] the claimant retained full muscle strength and
normal motor function.” (T. 39). The ALJ did not provide other
reasons for discounting Dr. Hojnacki’s opinion, apart from the
alleged inconsistency with his own treatment notes. As discussed
-9-

further below, the Court finds that while there is an apparent
inconsistency in some of Dr. Hojnacki’s notes, the proper course
of

action

was

for

the

ALJ

to

recontact

Dr.

Hojnacki

for

clarification, rather than entirely discounting his opinion.
Here, under the “review of systems” portion of his treatment
records,

Dr.

Hojnacki

consistently

noted

that

Plaintiff

was

experiencing muscle numbness and weakness, limb spasticity, and
muscle pain. (E.g., T. 741 (April 28, 2014)). Dr. Hojnacki also
consistently listed Plaintiff’s “active problems” as including
muscle

weakness

and

lack

of

coordination.

(T.

742).

On

examination, however, Dr. Hojnacki noted that Plaintiff’s motor
strength was normal in all muscle groups, and her coordination
and

gait

was

normal.

(T.

745).

Nevertheless,

Dr.

Hojnacki

consistently issued a diagnosis of “[m]uscle weakness (728.87).”
(T. 520, 531, 553, 565, 579, 603). The numerals “728.87” in
parentheses
general.”1
reduction

refer
The

in

to

ICD

9

strength

the

ICD

states
of

any

9

code

that

for

“Muscle

“[m]uscle

muscle(s)

in

weakness-

weakness
the

body”

is

a

whose

“[s]ymptoms are a loss of strength in the muscle even though no
detectable

loss

of

strength

is

present.”

(Id.)

(emphasis

supplied).

1
Muscle
Weakness
ICD
9
Code,
H EALTH
R ESEARCH
https://healthresearchfunding.org/muscle-weakness-icd-9-code/.

-10-

F UNDING ,

An ALJ deciding a Social Security claim, “unlike a judge in
a trial, must on behalf of all claimants . . . affirmatively
develop the record.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.
2009) (citations omitted). An ALJ is obligated to further the
develop

the

record

when

the

evidence

is

insufficient

or

inconsistent. 20 C.F.R. § 404.1520b. The regulations that now
control, 20 C.F.R. §§ 404.1520b(c)(1) and 416.920b(c), provide
that

re-contacting

the

treating

physician

is

an

option

for

correcting inconsistencies in the record, but that the ALJ “may
choose not to additional evidence or clarification from a medical
source if

[the

ALJ]

know[s]

from experience

that

the

source

either cannot or will not provide the necessary evidence.” 20
C.F.R.

§

404.1520b(c)(l).

“Nonetheless,

courts

in

the

Second

Circuit have concluded, citing these regulations, that the ALJ
still has an obligation to re-contact the treating physician in
some cases.” Gabrielsen v. Colvin, No. 12-CV-5694 KMK PED, 2015
WL 4597548, at *6 (S.D.N.Y. July 30, 2015) (citing Selian v.
Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (noting that, in a case
where the treating physician's opinion was “remarkably vague,”
that “[a]t a minimum, the ALJ likely should have contacted [the
treating

physician]

and

citing these regulations);

sought

clarification

of

his

report,”

other citation omitted). Accordingly,

the change in the regulations does not mean that the ALJ here had
no duty to re-contact Plaintiff’s treating neurologist.
-11-

Here, the ALJ has made no finding, nor has the Commissioner
made any argument, why Dr. Hojnacki “could not have resolved at
least some of the inconsistencies at issue, the only circumstance
in which the regulations explicitly provide that re-contacting
the treating physician is inappropriate.” Gabrielsen, 2015 WL
4597548,

at

416.920b(c)).

*7

(citing

Indeed,

the

20
ICD

C.F.R.
9

§§

diagnosis

404.1520b(c)(1),
code

for

“muscle

weakness-general” utilized by Dr. Hojnacki at each appointment
suggests that there may be a medically valid explanation for the
apparent inconsistency in his clinical notes. The Court has no
doubt that, at the very least, Dr. Hojnacki is in the best
position to resolve the ALJ’s questions. See, e.g., Gabrielsen,
2015 WL 4597548, at *7 (finding that recontacting treating source
was

required

to

adequately

develop

record

where

“apparent

inconsistencies between Dr. Johnson’s own notes and her reports
and a failure to ‘document the signs and symptoms’ in treatment
logs, are precisely the types of inconsistencies that Dr. Johnson
would best be able to resolve”).2

2
The Court notes that other treatment providers, similar to Dr. Hojnacki,
have documented symptoms of muscle weakness. For instance, in an October 24,
2013, Visit Note Report from Home Care Services Organization, Anthony Palumbo,
RN noted that Plaintiff was able to dress her upper and lower body without
assistance, provided that clothing was laid out or handed to her; she was able
to bathe herself in the shower or tub independently, but only with the use of
devices. (T. 396). At another home visit on December 6, 2013, Plaintiff displayed
numbness and decreased strength in the upper and lower bilateral extremities. (T.
827-28).

-12-

The Court finds that this error is not harmless since the
only other
source

is

opinion
from

in

the

record

consultative

from

physician

an
Dr.

acceptable medical
Hongbao

Liu,

who

examined Plaintiff once on September 24, 2012. However, this was
between Plaintiff’s

documented

MS exacerbations

that occurred

earlier in 2012 and then later in April, 2013; in June, 2013; in
December, 2013; and April, 2014. (T. 392, 416, 513, 515, 521,
842). Dr. Liu stated, “[i]n my opinion, currently the claimant
has no limitation for routine activities.” (T. 376). Dr. Liu’s
opinion is vague insofar as he did not define what was meant by
“routine activities.” Moreover, Dr. Liu concluded with a caveat
that Plaintiff’s “multiple sclerosis [is] currently in remission
stage. If multiple sclerosis relapses, then the limitation could
be moderate to severe.” (T. 376). By his own admission, Dr. Liu
likely would have been issued a more restrictive opinion had he
examined Plaintiff during one of the exacerbations of her MS.
III. Failure to Consider Psychosis Caused by Steroid Injections
(Plaintiff’s Argument 1)
Plaintiff also argues that substantial evidence supports a
conclusion

that

she

is

unable

to

perform

sustained

work

activities because she experiences psychosis and hallucinations
when she receives steroid injections. (Pl’s Br. at 19-21). She
contends that on average she would have missed at least two work
days per month between January 2012, and April 2014, because of
steroid-induced psychosis or hallucinations. (Id. at 20).
-13-

Plaintiff received steroid injections for her MS mainly in
2013. (T. 532-34). In 2012, the Plaintiff received injections
twice in January 2012; twice in March 2012; and three times in
December 2012. (T. 529, 539, 542). In 2013, Plaintiff received
three injections in January 2013, one injection in February 2013,
three injections in April 2013, three injections in May 2013, one
injection in June 2013, and July 2013, respectively; and two
injections
(T.

in

428-41,

August

2013,

442-63,

and

464-72,

September

515,

521,

2013,

526,

respectively.

528).

Plaintiff

received one injection in February 2014, and three injections in
April 2014. (T. 842, 877, 895). Plaintiff received no injections
in 2015, but that was because Dr. Hojnacki declined to restart
her

on

steroids

Dr.

Hojnacki

after

noted

her

that

course

Plaintiff

of
“has

Tysabri.
never

(T.

been

567).

able

to

tolerate IV steroids as they have caused psychosis in the past.
She

also

had

severe

cardiac

palpitations

and

arrhythmias.”

(T. 567).
However, the records from Home Health Nursing Care, which
administered

the

could engage

in

status

was

injections,
activities

“oriented.”

(T.

noted
as

throughout

tolerated

388-510).

and

These

that
that

Plaintiff
her

records

mental

lack

any

notation that Plaintiff suffered hallucinations from the steroid
injections.

-14-

Likewise,
hallucinations

Plaintiff’s
or

own

psychosis

testimony
is

about

equivocal.

experiencing

At

the

first

administrative hearing, Plaintiff did not mention suffering from
any hallucinations as a result of the steroid injections; rather,
she testified that they caused her “anxiety, insomnia, flu-like
symptoms,

fatigue,

[and

an]

irregular

heartbeat;”.

(T.

85).

During her second hearing, Plaintiff testified that a steroid
injection

“makes

[her]

feel

like

[she

is]

hallucinating

at

times.” (T. 116 (emphasis supplied)). When Plaintiff was asked to
confirm whether she hallucinated after receiving injections, she
responded contradictorily as follows: “No, but I don’t - I just –
you do. Yeah, I guess you could say I was.” (Id.).
Even

assuming

for

the

sake

of

argument

that

there

is

substantial evidence supporting Plaintiff’s view, that is not the
dispositive question. Bonet ex rel. T.B. v. Colvin, 523 F. App’x
58, 59 (2d Cir. 2013) (summary order). Rather, this Court “must
decide whether substantial evidence supports the ALJ’s decision.”
Id. (citing Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(“If there is substantial evidence to support the [agency's]
determination, it must be upheld.”); (other citation and footnote
omitted). Here, the Court must conclude that the record contains
substantial evidence supporting the ALJ’s decision that the sideeffects of Plaintiff’s steroid-injections were not disabling.

-15-

However, based on certain aspects of the VE’s testimony, the
Court

finds

steroid

that

the

injections

frequency

raise

the

and

duration

possibility

of

that

Plaintiff’s

Plaintiff

was

disabled for a closed period of time based on the impact of her
steroid-injections on her ability to complete a typical full-time
workweek. The VE testified in part that an employee is expected
to attend a minimum of 90 percent of her scheduled work time.
(T. 131). He explained that if an employee were to miss two days
of work per month, perhaps three to four months in a row, that
was

“probably

about

the

time”

that

she

is

going

to

“draw

attention to [herself] and get a warning.” (T. 132). The VE
testified

that

an

employee

is

allowed

to

be

off-task

up

to

9 minutes in an hour, or 15 percent of the work day, and that
even

10

minutes

off-task

each

and

every

hour

would

put

an

employee below an 85 percent productivity rate, which is normally
not acceptable. (T. 133). Here, the record indicates that during
the

relevant

period,

Plaintiff

received

multiple

IV

steroid

injections, with administration lasting one to two hours each.
(See T. 435, 430, 443, 452-53, 472, 505, 515, 521, 526-28, 529,
537,

539,

842,

865,

877,

895).

Moreover,

a

number

of

those

steroid injections occurred while Plaintiff was receiving in-home
nursing

care.

For

instance,

Plaintiff

received

IV

steroid

injections during her February 4, April 1, April 10, and April
22, 2014, home care visits. (T. 842, 865, 877, 895). On remand,
-16-

the ALJ

is

directed

to

consider whether

Plaintiff

meets

the

definition of disability for a closed period from the onset date
through the date of the last steroid injection, or some portion
of

that

period,

based

on

the

administration

of

IV

steroid

treatments, some of which occurred while she was homebound.
IV.

The ALJ Did Not Properly Consider
Impairment (Plaintiff’s Argument 3)

Plaintiff’s

Visual

Plaintiff also argues the ALJ “failed to address the effects
of [her] visual impairment on her ability to sustain work” at
step two of the sequential evaluation. (Pl’s Br. at 24).
The regulations provide that at step two of the sequential
evaluation, the ALJ is required to determine whether a claimant’s
medically
§

determinable

404.1520(a)(4)(ii).

impairments
An

are

impairment

is

severe.

20

“severe”

C.F.R.
if

“it

significantly limits an individual’s physical or mental abilities
to do basic work activities.” SSR 96-3P, 1996 WL 374181, at *1
(July 2, 1996). A claimant bears the burden of proving that she
has a severe impairment. Kohler v. Astrue, 546 F.3d 260, 265
(2d Cir. 2008) (citations omitted). However, “a step two error is
not reversible and does not necessitate remand where the record
is devoid of evidence that the allegedly omitted impairments were
severe.” Poles v. Berryhill, No. 17-CV-1471884, 2018 WL 1471884,
at *3 (W.D.N.Y. Mar. 26, 2018) (citing Rye v. Colvin, No. 14-CV170, 2016 WL 632242, at *3 (D. Vt. Feb. 17, 2016)).

-17-

Here, substantial evidence does not support that Plaintiff’s
visual

impairment

was

severe.

As

the

Commissioner

notes,

Plaintiff’s visual acuity was 20/25, even during a flare-up of MS
in March 2014. (T. 750). Dr. Norah Lincoff assessed Plaintiff
with myopia and mild nerve optic atrophy. (T. 752). Dr. Lincoff
subsequently treated Plaintiff in October 2014 and reported that
her vision in both her right and left eyes was 20/20. (T. 732).
Plaintiff reported that she had “no loss of vision.” (T. 730).
Dr. Lincoff also indicated that Plaintiff had “no recurrence of
optic

neuropathy.”

(T.

734).

Likewise,

on

October

8,

2015,

Plaintiff displayed 20/20 vision in both her right and left eyes.
(T. 808). Plaintiff reported that her eyes blurred “on and off
occasionally.” (T. 806). Dr. Lincoff indicated that Plaintiff had
“no recurrence

of

optic

neuropathy”

and

did

not

mention

any

limitations with respect to her near visual acuity. (T. 810).
Neither Dr. Hojnacki nor Dr. Lincoff reported that Plaintiff has
difficulties with her visual acuity. They did note that Plaintiff
continues to have problems with dry eyes, had occasional blurred
vision, and was near-sighted, but, as discussed below, these
conditions do not change the ALJ’s conclusion at step five.
Plaintiff

notes

that,

according

to

the

Dictionary

of

Occupational Titles and Selected Characteristics of Occupations,
both of the occupations which the ALJ found she could perform
require “frequent” near visual acuity up to two-thirds of the day
-18-

(Pl.’s Reply

(Docket

No.

11)

at

7

(citing

DICOT

209.687-026

(G.P.O.), 1991 WL 671813; DICOT 299.667-014 (G.P.O.), 1991 WL
672642)).

The

VE

testified

that

“frequent”

near

acuity

was

required to perform the occupations of a mailroom clerk and stock
checker. (T. 129). However, Plaintiff has not demonstrated that
her

visual

acuity

was

diminished

to

any

significant

extent.

Accordingly, she has not shown that the ALJ’s step-five finding
concerning her ability to perform other work in the national
economy is unsupported by substantial evidence. Thus, the Court
concludes

that

the

failure

to

address

Plaintiff’s

visual

impairment at step two was, at most, a harmless error that does
not require remand. See Johnson v. Bowen, 817 F.2d 983, 986
(2d Cir. 1987) (holding that a harmless error exists in the
Social Security context when the “application of the correct
legal

principles

to

the

record

could

lead

to

only

one

conclusion”).
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Judgment
on the Pleadings is granted to the extent that the Court finds
that

the

Commissioner’s

unsupported

by

decision

substantial

is

legally

evidence.

erroneous

Accordingly,

and
the

Commissioner’s decision is reversed, and the matter is remanded
to

the

Commissioner

consistent

with

this

for

further

Decision

and

-19-

administrative
Order.

In

proceedings

particular,

on

remand, the Commissioner is directed to (1) consider the new and
material evidence submitted by Plaintiff to the Appeals Council;
(2) recontact Dr. David Hojnacki for clarification of his opinion
and clinical findings; and (3) consider whether Plaintiff meets
the disability criteria for a closed period from the onset date
through the last date of her receipt of a steroid injection based
on the effects of such treatment on her ability to complete the
attendance requirements of full-time competitive employment. 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:

October 29, 2018
Rochester, New York

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