Robertson v. Colvin

Filing 13

DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 11 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/18/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOHNNIE LEE ROBERTSON, II,
Plaintiff,
-vs-

No. 6:16-CV-06481 (MAT)
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented

by

counsel,

plaintiff

Johnnie

Lee

Robertson,

II(“plaintiff”) brings this action pursuant to the Social Security
Act (the “Act”), seeking review of the final decision of defendant
the Acting Commissioner of Social Security1 (the “Commissioner” or
“defendant”) denying his application for 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, plaintiff’s motion is granted to the extent that
this

case

is

remanded

to

the

Commissioner

for

further

administrative proceedings consistent with this Decision and Order,
and the Commissioner’s motion is denied.

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

II.

Procedural History
Plaintiff protectively filed an application for SSI on April

29, 2011, which was denied.
86-90, 167-72.

Administrative Transcript (“T.”) 66,

At plaintiff’s request, a hearing was held before

administrative law judge (“ALJ”) Larry Levey on July 3, 2012.
T. 24-64.

On August 24, 2012, ALJ Levey issued a decision in which

he found that plaintiff was not disabled as defined in the act.
T. 7-76.
review, and

The Appeals Council denied plaintiff’s request for
plaintiff filed an action in this Court.

T. 428-31.

That action was terminated when the parties stipulated to remand
the matter to the Commissioner for further proceedings.
On remand, a supplemental hearing was held before ALJ John
Costello on April 5, 2016.

T. 628-55.

On May 9, 2016, ALJ

Costello issued a decision in which he found that plaintiff was not
disabled as defined in the Act.

T. 413-21.

exceptions

Council,

with

the

Appeals

Plaintiff did not file

rending

ALJ

determination the Commissioner’s final decision.

Costello’s
This action

followed.
III. The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. §§ 404.1520, 416.920, the ALJ determined that plaintiff
had not engaged in substantial gainful activity since April 29,
2011, the date of his application.

T. 415.

At step two, the ALJ

found that plaintiff suffered from the severe impairments of status

2

post fracture of the left tibia and obesity.
the

ALJ

found

medically

that

equal

one

plaintiff's
of

the

Id.

impairments

listed

did

impairments

20 C.F.R. § 404, Subpart P, Appendix 1.

At step three,
not
set

meet

or

forth

in

Id.

Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform the full range of medium work as defined in 20 CFR
416.967(c). T. 416. At step four, the ALJ found that plaintiff was
capable of
T. 419.

performing

past relevant

as

a

metal sorter.

Accordingly, the ALJ found plaintiff not disabled without

proceeding to step five.
IV.

work

T. 420.

Discussion
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).
“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).
Here the sole argument plaintiff makes in his motion for
judgment on the pleadings is that the ALJ should have considered
whether plaintiff suffered from a closed period of disability from
January 2010, when he fractured his left tibia, to June 2011.
3

For

the reasons discussed below, the Court agrees that the ALJ should
have considered whether the record established that plaintiff was
disabled during this time period, and therefore remands the matter
for further administrative proceedings.
Under the Act, disability is defined as the “inability to
engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A); see 20 C.F.R. § § 404.1509, 416.920. “A
closed period of disability refers to when a claimant is found to
be disabled for a finite period of time which started and stopped
prior

to

the

date

of

the

administrative

decision

granting

disability status.” Carbone v. Astrue, 2010 WL 3398960, at *13 n.
12 (E.D.N.Y. Aug. 26, 2010) (internal quotation marks omitted).
When considering a claim for benefits, “if a claimant is disabled
at any point in time, the ALJ should consider not only whether
Plaintiff was disabled at the time of the hearing, but also whether
Plaintiff was entitled to disability benefits for any closed,
continuous period of not less than 12 months, following the date of
his claim.”

Williams v. Colvin, 2016 WL 3085426, at *4 (W.D.N.Y.

June 2, 2016).

It is particularly necessary for the ALJ to

consider whether a closed period of disability existed where the
record shows that plaintiff’s condition has improved significantly

4

over time as the result of a discrete event, such as surgery.

See

Stalling v. Colvin, 2013 WL 3713315, at *6 (W.D.N.Y. July 12,
2013).
As

a

threshold

matter,

the

Court

notes

that

plaintiff

apparently did not raise the issue of a closed period of disability
prior to filing his motion for judgment on the pleadings, and that
he has therefore arguably waived it.
2012

WL

1910090,

at

*6

(D.

Vt.

See, e.g., Emery v. Astrue,
Apr.

9,

2012),

report

and

recommendation adopted, 2012 WL 1910085 (D. Vt. May 25, 2012) (“At
the outset, the Court notes that Emery did not raise the issue of
a closed period of disability until the filing of this Motion. . .
. Typically, a court need not address such a claim when it is
raised for the first time at this stage in the proceedings.”); see
also Hapstak v. Com’r of Soc. Sec., 2003 WL 22232046, at *12
(N.D.N.Y. Sept. 26, 2003) (“It has been held . . . that with some
exceptions,

the

failure

to

raise

an

argument

in

the

precludes plaintiff from raising it in federal court.”).

Agency

However,

defendant has not claimed that plaintiff is precluded from making
this argument, and has instead argued the issue on the merits.
“[A]s the Commissioner has not challenged this issue, the Court
will address it.”

Emery, 2012 WL 1910090, at *6; see also Verdi

v. Comm'r of Soc. Sec., 2011 WL 1361559, at *4 n.2

(D. Vt.

Apr. 11, 2011) (“in accordance with Second Circuit law instructing
courts to broadly construe and liberally apply the Social Security
5

Act,” court would consider claim for a closed period of disability
that was not raised at the administrative level).
The medical evidence of record in this case showed that
plaintiff fractured his tibia on January 1, 2010, and was required
to undergo an open internal fixation reduction of his left tibial
plateau fracture and a left lateral meniscal repair on January 13,
2010.

T. 237-42.

Plaintiff was also required to undergo physical

therapy as a result of his tibial fracture and subsequent surgery.
T. 249.

By June 13, 2011, state agency consultant Kare Eurenius,

M.D. opined that plaintiff’s condition had stabilized, though he
continued to be “somewhat limited in prolonged standing, walking
more than a city block, climbing or descending more than four or
five stairs, recurrent bending, lifting, or kneeling.”

T. 284-85.

In other words, the medical evidence of record showed a discrete,
traumatic event in January 2010 that caused a significant change in
plaintiff’s

ability

improvement

over

to

time.

function,

followed

Indeed,

defendant

by

treatment

acknowledges

and
that

“plaintiff experienced an extreme condition in January 2010, when
he fractured his left tibia.”

Docket No. 11-1 at 15.

While the

Court appreciates defendant’s argument that an ALJ is not required
to “craft an RFC for any . . . period that might include medical
findings indicating a worsening or improving condition” (id. at
21),

there

is

a

clear

distinction

between

cases

in

which

a

discrete, extreme event occurs and impacts a claimant’s abilities,
and cases in which the severity of a medical condition waxes and
wanes over time.

Here, there can be no dispute that plaintiff’s

6

medical condition was significantly altered by his tibial fracture,
nor can there be any dispute that, following the fracture and
subsequent surgery, it took time and additional treatment for
plaintiff to reach a stable condition. Under these circumstances,
the

ALJ

should

have

considered

whether

disability had occurred following

a

closed

period

of

plaintiff’s tibial fracture.

His failure to do so warrants remand.
V.

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

the pleadings motion (Docket No. 9) is granted to the extent that
this

matter

is

remanded

to

the

Commissioner

for

further

administrative proceedings consistent with this Decision and Order.
The Commissioner’s motion for judgment on the pleadings (Docket
No. 11) is denied.

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:

August 18, 2017
Rochester, New York.

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