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remanding where Plaintiff testified her partial blindness impacted her academic performance.
Summary of this case from Robert R. v. Comm'r of Soc. Sec.Opinion
17-CV-9409 (LGS) (BCM)
01-28-2019
KHADIJAH FAWAZ ELTAREB, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO THE HON. LORNA G. SCHOFIELD
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Khadijah Eltareb, who is blind in one eye and has "borderline ocular hypertension" but good visual acuity in her remaining eye, seeks judicial review of a final determination of the Commissioner of Social Security (the Commissioner) denying her application for Supplemental Security Income (SSI). The Commissioner moves for judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c), to uphold the determination. Because the Administrative Law Judge (ALJ) failed to obtain any medical opinion evidence concerning plaintiff's functional limitations resulting from her visual impairment, the Commissioner's motion be should be denied and this action should be remanded with instructions to fully develop the record.
I. BACKGROUND
A. Procedural Background
Plaintiff applied for SSI on October 31, 2014. Cert. Tr. of Record of Proceedings (Dkt. No. 10) at 87-94 (hereinafter "R.___"). In an accompanying Disability Report (R. 102-111), plaintiff alleged that she became disabled on October 15, 2013 (her eighteenth birthday), due to total blindness in her left eye and borderline ocular hypertension in her right eye. (R. 106.) Plaintiff added that her "vision on the right eye is very poor. I have to use both contacts and prescription glasses or very thick prescription glasses if I do not have my contacts on." (R. 111.)
On December 31, 2014, the Social Security Administration (SSA) denied plaintiff's application (R. 45-49), stating that her vision loss was "not severe enough to meet the blindness requirements for Supplemental Security Income payments." (R. 49.) Plaintiff timely requested a hearing before an ALJ, and on October 6, 2016, she appeared before ALJ Selwyn S. Walters. (R. 23-34.) Plaintiff was the only witness to testify at the hearing.
In a decision dated February 28, 2017 (Decision), the ALJ found that plaintiff was not disabled within the meaning of the Social Security Act (the Act). (R. 9-17.) On November 3, 2017, the Appeals Council denied plaintiff's request for review, rendering the ALJ's decision final. (R. 1-5.) This action followed.
Plaintiff filed her complaint, pro se, on November 29, 2017, seeking review of the Commissioner's decision pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g). (Dkt. No. 1.) Your Honor referred the matter to me on January 25, 2018. (Dkt. No. 8.) The Commissioner moved for judgment on the pleadings on June 6, 2018. (Dkt. No. 12.) On October 5, 2018, plaintiff submitted her opposing memorandum (Dkt. No. 15), which in light of her pro se status I construe as a cross-motion for judgment on the pleadings. See Verdauguer v. Colvin, 2013 WL 6426931, at *2 & n.2 (S.D.N.Y. Oct. 23, 2013) (treating pro se memorandum in opposition to Commissioner's Rule 12(c) motion as a cross-motion under Rule 12(c) and remanding for further proceedings), report and recommendation adopted, id. at *1 (S.D.N.Y. Dec. 9, 2013). No reply papers were submitted.
B. Personal Background
Plaintiff was born on October 15, 1995, and was nineteen years old when she applied for SSI. (R. 26.) When she was four years old, the retina in her left eye detached, causing total vision loss in that eye. (R. 28.) Plaintiff was later fitted with a prosthetic left eye. (R. 28, 87.)
Plaintiff graduated from high school in June 2013. (R. 27.) While in school she had an Individualized Education Program (IEP) which afforded her additional testing time, as well as the assistance of a social worker to "keep her on track" and "help her focus on transition from high school." (R. 163.) Her 12th grade IEP stated:
Kadijah's visual impairment is not considered a major factor or deterrent to her academic progress at this point. She wears a corrective lens for the right eye and has adapted to the loss of sight in the left eye. She does not use enlarged print or other technology to assist her vision. She makes good decisions about where to sit in class for best visual access to the teaching environment.(R. 163.) The IEP noted that plaintiff was planning to go to college "and is interested in doing something in business, like being a wedding planner." (Id.)
After high school plaintiff enrolled in community college, but left school after two and a half years. (R. 27.) In a function report completed on November 25, 2014 (when plaintiff was still attending college), she stated that her typical day consisted of going to school, coming home, cleaning, and studying. (R. 113.) Plaintiff also helped her younger siblings with homework, and picked them up from school twice a week. (Id.) She was able to do household work such as cleaning and laundry unaided, regularly traveled outside her home, and used public transportation without assistance. (R. 115.) Socially, plaintiff reported spending time with others talking, laughing, and having fun almost every day. (R. 117.)
In response to questions about her functional limitations, plaintiff listed only one: "sometimes can't see on left eye view." (R. 118.) Plaintiff reported that her reduced vision did not affect her personal hygiene, nor prevent her from counting change, handling a savings account, or shopping for clothes. (R. 114, 116.) Plaintiff has always lived with her parents and younger siblings, and has never held a job. (R. 106.)
On January 18, 2015 (after the initial denial of her claim), plaintiff submitted an updated Disability Report, writing, "[M]y doctor has informed my mom that I have a 50/50 chance of developing glaucoma in my right eye, ever since I was told I have been worrying." (R. 123.) Plaintiff further reported that she could not cook or clean as quickly as in the past, because "I have to look twice before using anything to make sure it's the right thing," and that she had difficulty sleeping due to anxiety about her vision. (R. 126.)
II. PLAINTIFF'S MEDICAL HISTORY
A. Dr. Roberts
From 1999 through at least 2014 plaintiff was under the care of pediatrician Kirsten Roberts, M.D. and other providers at Jacobi Medical Center, whom she saw primarily for checkups and occasionally for treatment of transitory conditions not at issue here. (R. 110, 180-98.) During an otherwise routine "well visit" on October 14, 2014 (two weeks before she applied for SSI), plaintiff became tearful while telling Dr. Roberts "how much stress she [was] under" during her first semester of college, including the "[p]ressure of being a role model for her younger sib[ling]s" and concerns about the money that her parents were spending on tuition. (R. 188-89.) Insofar as can be ascertained from Dr. Roberts's notes, plaintiff did not link her college difficulties to her visual impairment. Plaintiff's physical exam was "normal for age" (R. 189), though Dr. Roberts noted her history of "congenital cataracts with glaucoma" and observed that she was wearing a left eye prosthesis. (R. 191.) Dr. Roberts assessed "adjustment disorder with mixed anxiety and depressed mood (adjusting to college)." (R. 191.)
B. Dr. Engel
Ophthalmologist Harry Engel, M.D. began treating plaintiff in 1999, when she was four years old. (R. 26, 124-25.) The treatment records submitted to the ALJ cover the period 2008 to 2016. (R. 148-161, 201-220.) Those records consistently note that plaintiff was diagnosed with congenital cataracts as an infant, in 1996, but suffered "no known ocular trauma" and has no other significant medical history. (R. 149, 151, 153, 157, 159, 211, 213, 215.) Dr. Engel followed plaintiff regularly for phthisis in her left eye resulting from retinal detachment, and aphakia in her right eye, resulting from cataracts. (See, e.g., R. 151.) At each visit, he assessed plaintiff's visual acuity in her right eye (as corrected by glasses or contact lenses), finding that it ranged from 20/25 on October 29, 2008 (R. 149) to 20/40 on February 23, 2016 (R. 221), with some intervening fluctuation. Plaintiff has "no light perception" in her left eye. (R. 161.)
Phthisis means a "progressively wasting or consumptive condition." Phthisis, Merriam-Webster Medical Dictionary, http://www.merriam-webster.com/dictionary/phthisis (last visited Jan. 28, 2019). Aphakia is "the absence of the crystalline lens of the eye." Aphakia, Merriam-Webster Medical Dictionary, http://www.merriam-webster.com/dictionary/aphakia (last visited Jan. 28, 2019).
Beginning in 2009, Dr. Engel noted that plaintiff's right eye was "suspect" for glaucoma, but found "no firm evidence of optic nerve damage." (R. 151.) The intraocular pressure (IOP) in that eye, measured via Goldmann applanation tonography, ranged from 17 in 2011 (R. 155) to 20 on February 26, 2014, which Dr. Engel described as "borderline ocular hypertension," but noted that plaintiff's right eye was otherwise healthy, with a "healthy nerve." (R. 159-60.) Dr. Engel summarized these findings in a letter dated July 31, 2014, to prosthesis manufacturers Mager and Gougleman, in connection with a change in plaintiff's left eye prosthesis. (R. 161.)
Glaucoma is "a disease of the eye marked by increased pressure within the eyeball that can result in damage to the optic disk and gradual loss of vision." Glaucoma, Merriam-Webster Medical Dictionary, http://www.merriam-webster.com/dictionary/glaucoma#medicalDictionary (last visited Jan. 28, 2019). Intraocular pressure is "the pressure within the eyeball that gives it a round firm shape." Intraocular Pressure, Merriam-Webster Medical Dictionary, http://www.merriam-webster.com/dictionary/medical/intraocular%20pressure (last visited Jan. 28, 2019). According to the Glaucoma Research Foundation, "Normal intraocular pressures average between 12-22 mm Hg." What is considered normal eye pressure? Glaucoma Research Foundation, http://www.glaucoma.org/q-a/what-is-considered-normal-pressure.php (last visited Jan. 28, 2019). "Usually, the higher the pressure, the more risk to the optic nerve. Some optic nerves develop glaucoma even at low pressures (this is called normal-tension glaucoma) so it is important to have the optic nerve examined no matter what the pressure may be." Id.
Dr. Engel examined plaintiff's eyes again on January 28, 2015, noting right eye IOP of 16. During a June 19, 2015 visit, however, plaintiff's IOP was 28, which Dr. Engel described as "in glaucomatous range," and prescribed Latanoprost. (R. 213-14.) Plaintiff returned for a follow-up visit on July 27, 2015, at which point Dr. Engel measured her IOP at 18 and wrote, "Adequate IOP on latanoprost." (R. 215-16.) During the same visit, Dr. Engel performed a visual field study and found "[n]o visual field damage" in plaintiff's right eye. (Id.) At plaintiff's October 30, 2015 checkup, her IOP was down to 15, which Dr. Engel deemed "adequate control." (R. 217.) The most recent treatment notes in the record, dated February 19, 2016, reflect that plaintiff's IOP was measured at 20, and her medication compliance was only "fair." (R. 219-20.) Dr. Engel switched plaintiff from Latanoprost to Timolol and instructed her to use it "regularly." (Id.)
Latanoprost is a prostaglandin analog which is "effective at reducing intraocular pressure in people who have open-angle glaucoma." Medication Guide, Glaucoma Research Foundation, https://www.glaucoma.org/treatment/medication-guide.php (last visited Jan. 28, 2019). Timolol maleate is a beta blocker which works to reduce intraocular pressure by decreasing production of intraocular fluid. Id.
On September 30, 2016, Dr. Engel wrote a letter "To Whom it May Concern" in support of plaintiff receiving "necessary and available services" for her impairments. (R. 221.) The letter summarized his findings from a September 23, 2016 examination; however, the actual treatment notes from that examination do not appear in the record. In his letter, Dr. Engel reported that plaintiff's best-corrected visual acuity in her right eye was 20/40, with applanation pressure in that eye measured at 16. (Id). He stated that plaintiff was "visually impaired on the basis [of] her aphakic right eye, which is under treatment for glaucoma, and her left eye, which was lost due to retinal detachment as a child." (Id.) However, Dr. Engel did not provide any further assessment of plaintiff's impairments, did not specify what services she required, and did not provide a medical source statement or other opinion as to plaintiff's functional limitations.
III. ASSESSMENT BY STATE AGENCY SINGLE DECISION MAKER S. JACOBSON
A state agency single decision maker (SDM) identified as S. Jacobson reviewed plaintiff's medical records in connection with her SSI application. (R. 37-44.) After determining that plaintiff was not entitled to "Presumptive Disability/Presumptive Blindness," Jacobson assessed plaintiff's residual functional capacity (RFC), finding that she had a variety of visual limitations consistent with the loss of her left eye, including limited near and far acuity, limited depth perception, limited "accommodation," limited color vision, and limited field of vision (all on the "left"), but "good vision in [her] right eye," and no exertional, postural, manipulative, communicative, or environmental limitations. (R. 41-42.) Jacobson concluded that plaintiff was not disabled. (R. 43.)
Under "additional explanation," Jacobson noted that plaintiff had "good visual acuity" in her right eye, measured at 20/25, and that an examination of that eye revealed a "nerve fiber layer with healthy rim" and "healthy arterioles, venelos, and capillaries." (R. 42.) Jacobson did not mention plaintiff's right eye aphakia. Jacobson did note, correctly, that there was no "source opinion" to reconcile with the agency's RFC determination. (R. 41, 42.)
IV. HEARING
During plaintiff's hearing on October 6, 2016, ALJ Walters asked how her visual impairments affected her daily life. Plaintiff replied, "I take longer doing stuff." (R. 26.) She continued, "[T]he things I do take me longer to finish 'cause I can only see in one eye. And I don't have perfect vision in my right eye." (Id.) Plaintiff told the ALJ that she "dropped out of school 'cause of my eye. I couldn't do it anymore. It's really challenging, seeing through one eye." (R. 27.) Plaintiff confirmed that she regularly went out with friends - shopping or to the movies - was able to cook (although cooking took her longer than it took her mother), and helped her mother with cleaning (though she was "very slow at cleaning"). (R. 29-30.)
The ALJ also asked plaintiff about her anxiety. In response, plaintiff stated that she found her anxiety "very normal" and had never sought any mental health treatment. (R. 28.) She added, "I don't want you guys to base my case off my anxiety, 'cause my - everyone has anxiety. Every person in this world has anxiety. I only came in for my visual impairment." (R. 31.) Before adjourning the hearing, the ALJ told plaintiff that he was going to "send [her] to get an eye examination" (R. 30) and that he would write to Dr. Engel to get the "chart notes and examination notes" supporting his September 30, 2016 letter. (R. 30-32.)
There is no evidence in the record that the ALJ ever requested further information from Dr. Engel, nor that he made any effort to send plaintiff for a consultative examination.
V. APPLICABLE LAW
A claimant is "disabled," within the meaning of the Act, when she is "unable 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § 416.905(a). In order to determine whether a claimant over the age of 18 is disabled within the meaning of Act, the Commissioner is required to apply a five-step evaluation process pursuant to 20 C.F.R. § 416.920(a)(4). In order, the steps are:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a "residual functional capacity" assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's [RFC], age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014); accord Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003). If it is determined that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not progress to the next step. 20 C.F.R. § 416.920(a)(4).
The second step "is a threshold inquiry." Martinez v. Comm'r of Soc. Sec., 2017 WL 9802837, at *9 (S.D.N.Y. Sept. 19, 2017) (quoting Delia v. Comm'r of Soc. Sec., 433 F. App'x. 885, 887 (11th Cir. 2011)), applied "to screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). Thereafter, however, the ALJ considers the claimant's entire medical record, including impairments not deemed severe at step two. Martinez, 2017 WL 9802837, at *9 (citing Jamison v. Bowen, 814 F. 2d 585, 588 (11th Cir. 1987)); see also 20 C.F.R. § 416.923 (2015) ("we will consider the combined effect of all of your impairments without regard to as to whether any such impairment, if considered separately, would be of sufficient severity").
As of March 27, 2017, 20 C.F.R. § 416.923 was amended such that the quoted language now appears in subsection (c). In this Report and Recommendation I cite and apply the regulations as they existed at the time of the Decision. Citations to regulations that have since been amended include the date of the version that was in effect on February 28, 2017.
After the first three steps (assuming that the claimant's impairments do not meet or medically equal any Listing), the Commissioner is required to assess the claimant's RFC "based on all the relevant medical and other evidence in [her] case record." 20 C.F.R. § 416.920(e). A claimant's RFC is "the most [she] can still do despite [her] limitations." 20 C.F.R. § 416.945(a)(1).
The claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden at the fifth step to show "that other work exists in significant numbers in the national economy that [the claimant] can do, given [her] residual functional capacity and vocational factors." 20 C.F.R. § 416.960(c)(2). "The ALJ can usually establish that there is other work that Plaintiff can perform [] by reliance on the Medical-Vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as 'the Grids.'" Dzierzanowski v. Colvin, 2016 WL 452147, at *10 (N.D.N.Y. Feb. 5, 2016); accord Baldwin v. Astrue, 2009 WL 4931363, at *20 (S.D.N.Y. Dec. 21, 2009). "The grids 'take[ ] into account the claimant's residual functional capacity in conjunction with the claimant's age, education and work experience.'" Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999) (quoting Zorilla v. Chater, 915 F. Supp. 662, 667 (S.D.N.Y. 1996)).
However, if the plaintiff suffers from "significant" non-exertional limitations (for example, postural, communicative, or visual limitations), "exclusive reliance on the grids is inappropriate." Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004) (2d Cir. 2005) (quoting Rosa, 168 F.3d at 78), as amended on reh'g in part, 416 F.3d 101. "In these circumstances, the Commissioner must 'introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain and perform.'" Rosa, 168 F.3d at 78 (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986)).
VI. ALJ DECISION
The ALJ's Decision correctly set out the five-step evaluation sequence. (R. 13-14.) At step one, ALJ Walters noted that plaintiff had not engaged in substantial (or any) gainful activity since she applied for SSI on September 5, 2014. (R. 14.) At step two, he found that plaintiff's left eye blindness and right eye glaucoma were severe. (Id.) At step three, the ALJ found that plaintiff's severe impairments did not meet or medically equal any Listing. (Id.) In reaching this conclusion, the ALJ considered Listings 2.02, 2.03, and 2.04, which pertain to loss of visual acuity, contraction of the visual field in the better eye, and loss of visual efficiency, respectively. He concluded that, "because there is no evidence in the medical record that the claimant has significant loss of vision of the better (right) eye, the claimant's diminished vision condition . . . fails to meet the above-cited listings." (R. 14.)
The ALJ did not consider plaintiff's anxiety at step two. Nor did he mention it thereafter, notwithstanding the requirement that he consider her entire medical record (including non-severe impairments) at steps three, four, and five. The Commissioner suggests that the ALJ reasonably could have concluded that plaintiff "had withdrawn any allegation that anxiety related to her SSI application" at the hearing. Def. Mem. (Dkt. No. 13) at 9 n.8.
Listing 2.02 is met when "[r]emaining vision in the better eye after best correction is 20/200 or less." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 2.02. At her last examination by Dr. Engel, plaintiff's vision in her right eye was 20/40. (R. 221.)
Listing 2.03 is met when there is objective evidence of contraction of the visual field in the better eye. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 2.03. Dr. Engle conducted a visual field test on July 27, 2015, and found "[n]o visual field damage." (R. 216.)
Listing 2.04 is met when there is evidence of a "visual efficiency percentage of 20 or less" or a "visual impairment value of 1.00 or greater," in both cases after "best correction." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 2.04. A claimant with 20/40 vision in her right eye and no visual field damage in that eye will not meet the requirements of Listing 2.04.
The ALJ then assessed plaintiff's RFC, finding that she had the capacity "to perform medium work, as defined in 20 CFR 416.967(c), limited to occupations [not] requiring frequent peripheral visual acuity." (R. 14). He reasoned that plaintiff had sufficient vision to "avoid hazards in the workplace such as boxes on the floor, doors ajar, or approaching people or vehicles. The claimant can read ordinary newspaper or book print, and view a computer screen. The claimant can determine the difference in shape and color of small objects such as screws, nuts, and bolts." (Id.) The ALJ stated that in determining plaintiff's RFC he had considered, among other things, "opinion evidence in accordance with the requirements of 20 CFR 416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p." (R. 14-15.) In fact, as noted above, there was no medical opinion evidence in the record concerning plaintiff's visual impairments.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 416.927(a)(2) (2015). Social Security Regulations (SSRs) 96-2p, 96-5p, 96-6p and 06-3p (all since rescinded) provided guidance to ALJs in considering and weighing medical opinions.
The ALJ did not point to any specific record evidence to support his findings concerning plaintiff's ability to read newspaper or book print, view a computer screen, or discern the shape and color of small objects. He did note that Dr. Engel's treatment records "consistently describe [plaintiff's] right eye as having a 'healthy' optic nerve with no evidence of nerve damage," and that she had visual acuity of 20/40 in that eye at her most recent examination. (R. 15.) The ALJ gave "significant weight to Dr. Engel's findings," relying principally on that evidence to conclude "that the claimant has been able to perform the demands of a wide range of medium work at all time relevant to this decision." (R. 15.) The ALJ also considered "the findings made by the State Agency medical examiner," who also "concluded that the claimant's severe impairments are not disabling." (R. 15-16.)
It appears that the ALJ considered S. Jacobson to have been a "medical consultant" and S. Jacobson's RFC determination to have constituted a medical opinion in accordance with 40 C.F.R. § 416.912(b)(1)(vi) (2015) and § 416.927(e)(2) (2015). However, S. Jacobson listed no medical degree or other qualification, and signed plaintiff's initial disability determination as a Single Decision Maker, Disability Adjudicator/Examiner, and Disability Examiner - not as a physician or "MC" (medical consultant). (R. 42, 43, 44.)
Since plaintiff had no past relevant work experience, the ALJ proceeded to step five and considered plaintiff's RFC, age, education, and work experience in conjunction with Grids. (R. 16.) The ALJ noted, correctly, that if plaintiff "had the RFC to perform the full range of medium work," a finding of "not disabled" would be directed by Medical-Vocational Rule 203.28. He then found that although plaintiff had additional limitations, they had "little or no effect on the occupational base of unskilled medium work," such that a finding of "not disabled" remained appropriate "under the framework of this rule." (Id.) The ALJ did not consult a vocational expert or cite any other evidence in reaching this determination.
VII. ANALYSIS
A. Legal Standards
The Act provides that the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The reviewing court may set aside a decision of the Commissioner only if it is "based on legal error or if it is not supported by substantial evidence." Geertgens v. Colvin, 2014 WL 4809944, at *1 (S.D.N.Y. Sept. 24, 2014) (quoting Hahn v. Astrue, 2009 WL 1490775, at *6 (S.D.N.Y. May 27, 2009)); accord Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009). Judicial review, therefore, involves two levels of inquiry. First, the district court must decide whether the ALJ applied the correct legal standards. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). If there was no legal error, the court must determine whether the ALJ's decision was supported by substantial evidence. Tejada, 167 F.3d at 773; Calvello, 2008 WL 4452359, at *8.
One of the "threshold" legal questions often presented in challenges to disability determinations is "[w]hether the ALJ has met his duty to develop the record." Craig v. Comm'r of Soc. Sec., 218 F. Supp. 3d 249, 261 (S.D.N.Y. 2016). "[T]he social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks and citations omitted). The record is fully developed when it is "complete and detailed enough to allow the ALJ to determine" the claimant's RFC. Rivas v. Berryhill, 2018 WL 4666076, at *9 (S.D.N.Y. Sept. 27, 2018) (quoting Roman v. Colvin, 2016 WL 4990260, at *7 (S.D.N.Y. Aug. 2, 2016)); see also Sanchez v. Colvin, 2015 WL 736102, at *7 (S.D.N.Y. Feb. 20, 2015) (The record contains sufficient evidence if it is "robust enough to enable a meaningful assessment of the particular conditions on which the petitioner claims disability.") (citations omitted). In the case of pro se litigants, the ALJ's duty to develop the record is "heightened." Moran, 569 F.3d at 113 (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). "The ALJ must 'adequately protect a pro se claimant's rights by ensuring that all of the relevant facts are sufficiently developed and considered' and by 'scrupulously and conscientiously prob[ing] into, inquir[ing] of, and explor[ing] for all the relevant facts.'" Id. (alterations in original) (citation omitted).
"Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi, 2009 WL 50140, at *21 (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), and Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). However, the reviewing court's task is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than interpretation. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (quotation marks and citation omitted). Thus, the substantial evidence standard is "a very deferential standard of review - even more so than the 'clearly erroneous' standard." Id.; see also Brown v. Colvin, 73 F. Supp. 3d 193, 198 (S.D.N.Y. 2014).
"[T]he crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence." Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Thus, remand may be appropriate if the ALJ fails to provide an adequate "roadmap" for his reasoning. But if the ALJ adequately explains his reasoning, and if his conclusion is supported by substantial evidence, the district court may not reverse or remand simply because it would have come to a different decision on a de novo review. "Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citation and internal quotation marks omitted). See also Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) ("the court should not substitute its judgment for that of the Commissioner"); Ryan v. Astrue, 5 F. Supp. 3d 493, 502 (S.D.N.Y. 2014) ("[T]his Court may not substitute its own judgment as to the facts, even if a different result could have been justifiably reached upon de novo review.") (quoting Beres v. Chater, 1996 WL 1088924, at *5 (E.D.N.Y. May 22, 1996)).
B. The Parties' Contentions
In her brief to this Court, plaintiff complains that she was never informed of her right to hire a lawyer, Pl. Mem. at ECF pages 1, 4, and asserts that she did not have a fair hearing before the ALJ because he was "rude and was not friendly" and "asked the wrong questions." Id. at ECF page 3. Additionally, plaintiff suggests, without support, that she should be granted benefits now because "I had a right as a child." Id. at 1. Plaintiff also points out that the agency "never sent me to a doctor to claim [sic] if I was considered blind," Id. at 2, thus raising the question whether the ALJ adequately developed the record.
The record does not support these contentions. When plaintiff requested a hearing she was notified, in writing, of her right to representation. (R. 54, 57-60.) Moreover, the ALJ asked plaintiff, at the beginning of the hearing, "Are you familiar with your right to representation?" Plaintiff replied, "Yeah, I read the rules." (R. 23.) Plaintiff then reaffirmed that she wanted to represent herself. (R. 23-24.) Although plaintiff's hearing was brief, the ALJ gave her an opportunity to describe how her visual impairments "affect your daily life" (R. 26), and asked her twice if there was "anything else you would like me to know about your case." (R. 31.) In response to the first question, plaintiff withdrew her anxiety-related claims. (Id.) In response to the second question, she offered to "take off my prosthetic eye to show you." (Id.) The ALJ declined, stating, "I don't think that's necessary . . . the medical records are there." (Id.)
Plaintiff acknowledges that her parents never sought benefits on her behalf "because they did not know if I needed them." Pl. Mem. at ECF page 1.
The Commissioner does not directly address this issue (and as noted above did not submit a reply brief to answer plaintiff's memorandum). Instead, she argues generally that the ALJ's RFC was supported by substantial evidence. Def. Mem. (Dkt. No. 13) at 11-14. The Commissioner notes that "[t]he record contains almost no evidence of functional limitations caused by Plaintiff's vision problems," and that the ALJ credited "the only limitation affirmatively identified by Plaintiff - occasional problems viewing toward her left eye." Id. at 11, 12. Defendant further argues that even Dr. Engel, plaintiff's treating ophthalmologist, did not "suggest[] greater limitations than found by the ALJ." Id. at 12.
The Commissioner's insistence that plaintiff only had "occasional" difficulty seeing out of her left eye, Pl. Mem. at 12, is difficult to understand given the undisputed evidence that plaintiff had no vision at all in that eye and wore a prosthesis. The Commissioner is correct, however, that plaintiff herself did not identify significant functional limitations.
The Commissioner further contends that her ultimate determination of non-disability was supported by substantial evidence and that the ALJ's reliance on the Grids was appropriate because he properly concluded that plaintiff's visual limitations "had little to no effect on the occupational base of medium unskilled work." Def. Mem. at 13. The Commissioner relies on Johnston v. Astrue, 2008 WL 4224059, at *11 (E.D.N.Y. 2009), for the proposition that, under the circumstances presented here, the ALJ "did not need to call a vocational expert." Id.
C. Duty to Develop the Record
As the ALJ acknowledged at plaintiff's hearing, the record did not contain the treating notes from her most recent visit to Dr. Engel (R. 32.) The ALJ failed to request that document. He also failed to request any source statement or other opinion evidence from Dr. Engel concerning plaintiff's functional limitations. Nor did he "send [plaintiff] to get an eye examination" from a consultative examiner, as promised (R. 30), which could also have provided him with a medical opinion as to the effect of her visual impairments. Instead, the ALJ relied on Dr. Engel's "raw treatment records," Verdauguer, 2013 WL 6426931, at *11, and the prior RFC analysis by S. Jacobson (which in turn was necessarily based on treatment records through 2014, at which point plaintiff's visual acuity in her right eye was 20/25).
Where, as here, a plaintiff is proceeding pro se, it is difficult for an ALJ to meet his "heightened" duty to develop the record, Moran, 569 F.3d at 113, without making an effort to obtain "not merely the medical records of the treating physician but also a report that sets forth the opinion of that treating physician as to the existence, the nature, and the severity of the claimed disability". Peed v. Sullivan, 778 F. Supp. 1241, 1246 (E.D.N.Y. 1991); see also Molina v. Barnhart, 2005 WL 2035959, at *17 (S.D.N.Y. Aug. 17, 2005) (same); Jones v. Apfel, 66 F. Supp. 2d 518, 523-24 (S.D.N.Y. 1999) ("The ALJ must take all reasonable steps to obtain past and current medical evidence and assessments from treating sources identified by a pro se plaintiff, in order to complete the administrative record."); Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980) (remand was required where the ALJ failed to advise the pro se plaintiff "that he should obtain a more detailed statement from his treating physician").
The plaintiff in Verdauguer - like plaintiff Eltareb here- had no sight in his left eye but good visual acuity (in his case, 20/20) in his remaining eye, 2013 WL 6426931, at *3. A consultative ophthalmologist opined - rather vaguely - that plaintiff had "a permanent partial visual disability as result of blindness in his left eye." Id. There was no opinion from plaintiff's treating physicians at the New York Ear and Eye Infirmary. In reliance on the "raw data" from plaintiff's eye examinations, the consultative opinion, the RFC determination previously made by an agency disability analyst, and the opinion of a vocational expert who testified at the hearing, the ALJ found that plaintiff had the RFC to work at "all exertional levels," except for jobs that required "peripheral vision" or "depth perception," and was therefore not disabled. Id. at 11. The district court remanded, holding among other things that the record was "inadequate" because the ALJ failed to request "any assessment of Plaintiff's functional limitations" from his treating ophthalmologists. Id.
Similarly, in Dzierzanowski, 2016 WL 452147, at *8, where plaintiff alleged vision loss as a result of diabetic retinopathy and cataracts, the district court remanded, noting that the ALJ failed to obtain a medical source statement from plaintiff's treating ophthalmologist, id. at *2, and that the consultative examiner - who tested plaintiff's eyes and reported that he retained visual acuity of 20/30 - failed to assess his "work-related visual abilities and restrictions." Id. at *8. "[A]n ALJ cannot assess a plaintiff's RFC based on the ALJ's own interpretation of the medical evidence." Id. See also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (an "ALJ cannot arbitrarily substitute his own judgment for competent medical opinion").
As noted above, the Commissioner cites Johnston, 2008 WL 4224059, at *10, where no remand was required even though the plaintiff alleged blindness in his left eye (among other impairments) and the record contained no source statement from his treating physicians. However, plaintiff Johnston stated that he had "normal vision in his right eye," used no corrective lenses, and "could still drive a car although he avoids driving at night." Id. at *6. Moreover, the ALJ in Johnston requested opinion evidence from plaintiff's treating physicians and then - when none of them responded - "offered to arrange for consultative examinations to be performed." Id. at *10 & n.11. Johnston (who was represented by counsel) "insisted that he would arrange for his own consultative examinations," id. at 10, such that it ill behooved him to later complain about the ALJ's failure to insist upon what would have been "two sets of consultative examinations." Id.
The case at bar, by way of contrast, was brought by a pro se claimant whose best-corrected visual acuity in her remaining eye was 20/40 (R. 221), who was at risk for further vision loss due to glaucoma, and who blamed her visual impairment for her inability to keep up in college. (R. 28.) Moreover, there is no indication in the record that ALJ Walters ever asked Dr. Engel for a source statement (or, for that matter, for his most recent examination report) or that he followed up on his statement that he was going to send plaintiff for a consultative exam. (R. 30-33.) With no medical opinion to rely on with respect to plaintiff's functional limitations, the ALJ was left to "substitute his own expertise or view of the medical proof for the treating physician's opinion or for any competent medical opinion." Dzierzanowski, 2016 WL 452147, at *8 (quoting Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)).
Given the ALJ's failure adequately to develop the record, I cannot conclude that his credibility assessment, his RFC determination, or his ultimate finding of non-disability was supported by substantial evidence. See Dzierzanowski, 2016 WL 452147, at *8 (The ALJ's RFC determination "was not supported by substantial evidence, because the record was insufficient to support such an RFC."); id. at *10 ("remand is also required for a credibility analysis in light of any new medical evidence obtained"). I note, for example, that the Commissioner relies on the absence of any "suggestion" from Dr. Engel that plaintiff was subject to "greater limitations than found by the ALJ." Def. Mem. at 12. This would be a more persuasive argument had Dr. Engel ever been asked for his views concerning plaintiff's limitations. "Under these circumstances, the matter should be remanded for the purpose of developing the record." Verdauguer, 2013 WL 6426931, at Accord Dzierzanowski, 2016 WL 452147, at *8 ("[R]emand is required for the ALJ to obtain a consultative visual examination or a medical source statement from an acceptable medical source regarding Plaintiff's visual limitations.")
On remand, the ALJ should also obtain up-to-date records from Dr. Engel and plaintiff's other treating physicians, if any, and consider whether to obtain the testimony of a vocational expert at step five. As noted above, such testimony is required "if a claimant's nonexertional impairments 'significantly limit the range of work permitted by his exertional limitations.'" Bapp, 802 F.2d at 605 (quoting Blacknall v. Heckler, 721 F.2d 1179, 1181 (9th Cir. 1983)). The initial determination of whether plaintiff's nonexertional limitations significantly limit the range of work permitted by plaintiff's exertional limitations "can be made without resort to a vocational expert," Bapp, 802 F.2d at 606, but must itself be supported by substantial evidence in the record. When the record is expanded, therefore, "the ALJ must also reevaluate whether the range of work Plaintiff can perform based on his combined nonexertional limitations is 'so significantly diminished as to require the introduction of expert testimony." Dzierzanowski, 2016 WL 452147, at *11 (quoting Bapp, 802 F.2d at 606); see also Baldwin v. Astrue, 2009 WL 4931363, at *28 (S.D.N.Y. Dec. 21, 2009) (remand would "allow the ALJ to more fully develop the record as necessary, re-weigh the evidence from the plaintiff's treating and examining sources, and introduce evidence from a vocational expert on jobs available to the plaintiff despite his non-exertional limitations").
VIII. CONCLUSION
For the reasons stated above, I respectfully recommend that Your Honor DENY the Commissioner's motion for judgment on the pleadings, GRANT the plaintiff's cross-motion, and REMAND this action the Commissioner for development of the administrative record and additional proceedings, consistent with this Report and Recommendation, on a fully developed record.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the plaintiff. Dated: New York, New York
January 28, 2019
/s/ _________
BARBARA MOSES
United States Magistrate Judge
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Honorable Lorna G. Schofield at 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned Magistrate Judge. Any request for an extension of time to file objections must be directed to Judge Schofield. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).