Brown v. Berryhill

Filing 16

DECISION AND ORDER: Plaintiff's Motion for Judgment on the Pleadings 10 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 14 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 6/14/2018. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DONOVAN BROWN,
Plaintiff,
Case # 17-CV-6485-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
Donovan Brown brings this action pursuant to the Social Security Act (“the Act”) seeking
review of the final decision of the Acting Commissioner of Social Security that denied his
applications for disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”)
under Titles II and XVI of the Act. ECF No. 1. The Court has jurisdiction over this action under
42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 10, 14. For the reasons that follow, Plaintiff’s motion is GRANTED,
the Commissioner’s motion is DENIED, and this matter is REMANDED to the Commissioner for
further administrative proceedings.
BACKGROUND
On September 19, 2013, Brown protectively applied for DIB and SSI with the Social
Security Administration (“the SSA”). Tr.1 342-51. He alleged disability since October 16, 2008
due to ascites, type II diabetes, neuropathy in the feet and lower legs, difficulty standing,

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References to “Tr.” are to the administrative record in this matter.

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retinopathy, chronic hip and back pain, and cirrhosis of the liver. Tr. 372-73. On October 5, 2015,
Brown and a vocational expert (“VE”) appeared and testified before Administrative Law Judge
John P. Costello (“the ALJ”). Tr. 220-57. On January 21, 2016, the ALJ issued a decision finding
that Brown was not disabled within the meaning of the Act. Tr. 16-25. On May 25, 2017, the
Appeals Council denied Brown’s request for review. Tr. 1-7. Thereafter, Brown commenced this
action seeking review of the Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether the

SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is
“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence
means more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
(quotation marks omitted). It is not the Court’s function to “determine de novo whether [the
claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation marks
omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990)
(holding that review of the Secretary’s decision is not de novo and that the Secretary’s findings are
conclusive if supported by substantial evidence).
II.

Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71

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(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful
work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and determines whether the claimant has an impairment, or combination of
impairments, that is “severe” within the meaning of the Act, meaning that it imposes significant
restrictions on the claimant’s ability to perform basic work activities. 20 C.F.R. § 404.1520(c). If
the claimant does not have a severe impairment or combination of impairments, the analysis
concludes with a finding of “not disabled.” If the claimant does, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria of
a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is disabled.
If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which is the ability
to perform physical or mental work activities on a sustained basis, notwithstanding limitations for
the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot,
the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to
show that the claimant is not disabled. To do so, the Commissioner must present evidence to
demonstrate that the claimant “retains a residual functional capacity to perform alternative
substantial gainful work which exists in the national economy” in light of his or her age, education,
and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks
omitted); see also 20 C.F.R. § 404.1560(c).

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DISCUSSION
I.

The ALJ’s Decision
The ALJ’s decision analyzed Brown’s claim for benefits under the process described

above. At step one, the ALJ found that Brown had not engaged in substantial gainful activity since
the alleged onset date. Tr. 18. At step two, the ALJ found that Brown has the following severe
impairments: alcohol abuse, liver disease, diabetes mellitus, and mood disorder. Tr. 18-19. At
step three, the ALJ found that these impairments, alone or in combination, did not meet or
medically equal any Listings impairment. Tr. 19-20.
Next, the ALJ determined that Brown retains the RFC to perform light work,2 but he can
only frequently interact with coworkers and the public. Tr. 20-23. At step four, the ALJ relied on
the VE’s testimony and found that Brown can perform his past relevant work as a fast food
manager and pantry goods maker. Tr. 23. The ALJ went on to make an alternative step five
finding and determined that Brown can adjust to other work that exists in significant numbers in
the national economy given his RFC, age, education, and work experience.

Tr. 23-24.

Specifically, the VE testified that Brown could work as a cafeteria attendant and
cleaner/housekeeper. Tr. 24. Accordingly, the ALJ concluded that Brown was not “disabled”
under the Act. Tr. 24-25.

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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, [the claimant] must have the
ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit
for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b).

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II.

Analysis
Brown argues that remand is required because the ALJ erred at step two by finding that his

diabetes retinopathy3 constituted a nonsevere impairment and by ignoring that impairment when
he made the RFC determination.4 ECF No. 10-1 at 17-22; ECF No. 15. The Court agrees.
At step two of the disability analysis, the ALJ considers the medical severity of the
claimant’s impairments.

20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

A “severe

impairment” is “any impairment or combination of impairments which significantly limits [the
claimant’s] physical or mental ability to do basic work activities.” Id. at §§ 404.1520(c), 404.1521,
416.920(c), 416.921. “Basic work activities” are “the abilities and aptitudes necessary to do most
jobs.” Id. at §§ 404.1521(b), 416.921(b). It is the claimant’s burden to present evidence that
establishes the severity of his impairment. Id. at §§ 404.1512(c), 416.912(c). The claimant must
demonstrate “that the impairment has caused functional limitations that precluded him from
engaging in any substantial gainful activity for one year or more.” Perez v. Astrue, 907 F. Supp.
2d 266, 272 (N.D.N.Y. 2012) (citing Meadors v. Astrue, 370 F. App’x 179, 182 (2d Cir. 2010) and
Rivera v. Harris, 623 F.2d 212, 215 (2d Cir. 1980)). A finding of “not severe” should be made if
the medical evidence establishes only a slight abnormality that would have no more than a minimal
effect on an individual’s ability to work. Id. at 271; see also S.S.R. 85-28, 1985 WL 56858, at *3
(S.S.A. Jan. 1, 1985).
“An error at step two—either a failure to make a severity determination regarding an
impairment, or an erroneous determination that an impairment is not severe—can be harmless error

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Diabetes retinopathy is the most common cause of vision loss among individuals with diabetes. See Facts about
Diabetic Eye Disease, National Eye Institute (NEI), available at https://nei.nih.gov/health/diabetic/retinopathy (last
visited June 12, 2018). The condition affects blood vessels in the retina that lines the back of the eye. Id.
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Brown advances another argument that he believes requires reversal of the Commissioner’s decision. ECF No. 101 at 22-26. However, because the Court disposes of this matter based on the ALJ’s failure to properly consider his
nonsevere impairment in the RFC analysis, that argument need not be reached.

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if the ALJ continues the analysis and considers all impairments in [his] RFC determination.” Sech
v. Comm’r of Soc. Sec., No. 7:13-CV-1356 GLS, 2015 WL 1447125, at *3 (N.D.N.Y. Mar. 30,
2015); see 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2) (“We will consider all of your medically
determinable impairments of which we are aware, including your medically determinable
impairments that are not ‘severe’ . . . when we assess your [RFC].”). Remand is required if the
ALJ fails to account for the claimant’s nonsevere impairments when determining his RFC. See
Parker-Grose v. Astrue, 462 F. App’x 16, 18 (2d Cir. 2012) (summary order) (“[A]fter finding that
[the claimant]’s mental impairment of depression does not cause more than minimal limitation in
her ability to perform basic mental work activities and is therefore nonsevere, . . . the ALJ
determined [the claimant]’s RFC without accounting for any of the limitations arising from her
mental impairment[.] Thus, the ALJ committed legal error.”); Schmidt v. Colvin, No. 15-CV-2692
(MKB), 2016 WL 4435218, at *13 (E.D.N.Y. Aug. 19, 2016) (“Where an ALJ fails to account for
any functional limitations associated with the [non-severe] impairments in determining the
claimant’s RFC, a court must remand for further administrative proceedings.”) (quotation marks
and citations omitted).
Here, the ALJ recognized at step two that medical records diagnosed Brown with diabetes
retinopathy, but he concluded that this impairment was nonsevere because it only minimally
affected Brown’s ability to perform work activities. Tr. 19. In making that conclusion, the ALJ
found that this impairment “shows no evidence of severe symptoms, ongoing/consistent treatment,
or vocational limitations.” Id.
Regardless of whether the ALJ properly classified this impairment as nonsevere, remand
is required because he did not consider it when assessing Brown’s RFC. Tr. 20-23; see ParkerGrose, 462 F. App’x at 18 (holding that even if substantial evidence supported the ALJ’s decision

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that the plaintiff’s mental impairment was nonsevere, “it would still be necessary to remand this
case for further consideration because the ALJ failed to account for [the plaintiff’s] mental
limitations when determining her RFC”). Although the ALJ’s step two conclusion indicates that
Brown’s diabetes retinopathy “shows no evidence of . . . vocational limitations,” he cites no record
evidence to support this assertion and provides no further explanation. Tr. 19. Moreover, the
ALJ’s RFC analysis does not mention this impairment at all and the RFC determination lacks any
related visual limitations. Tr. 20-23.
Notably, the fast food manager, pantry goods maker, and cafeteria attendant jobs that the
ALJ found Brown capable of performing all require near visual acuity,5 which may be problematic
for Brown in light of his diabetes retinopathy. Treatment notes indicate, for example, that Brown
reported cloudy, double, and blurry vision, decreased vision sharpness and depth perception, visual
flashes, difficulty reading, and eye pain. Tr. 449, 457, 489, 506-07, 627, 692, 696, 808. Treatment
notes also diagnose Brown with myopia and indicate that he has a permanent left eye visual defect
that cannot be improved with treatment. Tr. 476-77, 491. It is unclear whether the ALJ considered
this evidence when he evaluated Brown’s RFC, because the RFC analysis does not discuss
Brown’s diabetes retinopathy.
Accordingly, because the ALJ did not consider whether Brown’s diabetes retinopathy
imposed functional limitations when he made the RFC determination, remand is required. See,
e.g., Schmidt, 2016 WL 4435218, at *13 (“Because the ALJ failed to account for the limitations
imposed by Plaintiff’s non-severe mental impairments, the Court remands for consideration of
those limitations in determining Plaintiff’s RFC.”).

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See Dictionary of Occupational Titles No. 185.137-010, 1991 WL 671285 (manager, fast food services); No.
317.684-014, 1991 WL 672751 (pantry goods maker); No. 311.677-010, 1991 WL 672694 (cafeteria attendant).

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CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 10) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 14) is DENIED, and this matter
is REMANDED to the Commissioner for further administrative proceedings consistent with this
opinion, pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d 117, 124
(2d Cir. 2000). The Clerk of Court is directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: June 14, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court 

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