Johnson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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YVONNE JOHNSON,

Plaintiff,

MEMORANDUM AND ORDER

v.

19-cv-1576(KAM)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Yvonne

Johnson (“plaintiff”) appeals the final decision of the

Commissioner of Social Security (“defendant”), which found that

plaintiff was not eligible for disability insurance benefits

(“DIB”) under Title II of the Social Security Act (“the Act”)

and that plaintiff was not eligible for Supplemental Security

Income (“SSI”) disability benefits under Title XVI of the Act,

on the basis that plaintiff is not disabled within the meaning

of the Act. Plaintiff alleges that she is disabled under the

Act and is thus entitled to receive the aforementioned benefits.

Plaintiff is alleging disability since June 1, 2014. (ECF No.

20, Administrative Transcript (“Tr.”) at 10.)

Presently before the court is plaintiff’s memorandum

of law in support of plaintiff’s motion for judgment on the

pleadings (ECF No. 24, Plaintiff’s Memorandum of Law in Support

of Plaintiff’s Motion for Judgment on the Pleadings (“Pl.

Mem.”), defendant’s cross-motion for judgment on the pleadings

(ECF No. 23, Memorandum of Law in Support of Defendant’s Motion

for Judgment on the Pleadings (“Def. Mem.”), and plaintiff’s

reply in support of motion for judgment on the pleadings (ECF

No. 18, “Pl. Reply”.) For the reasons stated below, plaintiff’s

motion is GRANTED, defendant’s motion is DENIED, and the case is

remanded for further proceedings consistent with this Memorandum

and Order.

BACKGROUND

The parties have submitted a joint stipulation of

facts detailing plaintiff’s medical history and the

administrative hearing testimony, which the court incorporates

by reference. (See generally ECF No. 19, Joint Stipulation of

Facts (“Stip.”).) On April 3, 2015 the plaintiff filed

applications for DIB and SSI Benefits. (Tr. at 10.) The

plaintiff claimed she was disabled as a result of hypertension,

diabetes, a cataract in her right eye, and low vision. (Id. at

63.) Ms. Johnson’s disability onset date was June 1, 2014.

(Id. at 10.) Plaintiff’s application was denied initially on

June 18, 2015. (Id. at 73.)

On July 15, 2015 plaintiff filed a written request for

a hearing before an Administrative Law Judge (“ALJ”). (Id. at

78.) On April 18, 2017, the ALJ, Mark Solomon, presided over

plaintiff’s first hearing. (Id. at 22-32.) At the hearing, the

ALJ told plaintiff that he was going to subpoena plaintiff’s

medical records from New York Methodist Hospital. (Id. at 29-

31.) Because plaintiff did not have legal representation, she

requested an adjournment for the purpose of acquiring an

attorney. (Tr. at 26.) The ALJ granted the request. (Id. at

26-27.)

On August 8, 2017, ALJ Solomon presided over

plaintiff’s second hearing. (Tr. at 34-54.) During plaintiff’s

second hearing, Vocational Expert (“VE”), Dawn Blyth, testified.

(Tr. 51-53.) When the ALJ asked Ms. Blyth the hypothetical

question as to whether Ms. Johnson could perform past work as

normally performed, Ms. Blyth responded in the affirmative.

(Id. at 53.) In a decision dated September 23, 2017, the ALJ

found plaintiff was not disabled. (Id. at 61.) On November 28,

2017, plaintiff appealed the ALJ’s decision to the Appeals

Council. (Id. at 163-167.) On January 1, 2019, the Appeals

Council denied review of the decision, rendering the ALJ’s

decision the final decision of the Commissioner. (Id. at 1-3.)

On January 17, 2019, plaintiff filed the instant action in

federal court. (See generally ECF No. 1, Complaint (“Compl.”).)

On March 25, 2019, this court issued a scheduling order. (ECF

No. 5, Scheduling Order.)

On August 14, 2019, the plaintiff filed a motion for

extension of time to file her motion for judgment on the

pleadings. (ECF No. 10, Letter Motion for Extension of Time to

File.) On August 15, 2019, the court granted the plaintiff’s

motion and amended the scheduling order. (Dkt. Order dated

8/15/2019.) on September 25, 2019, the plaintiff filed another

motion for extension of time to file her motion for judgment on

the pleadings. (ECF No. 11, Letter Motion for Extension of Time

to File.) On September 26, 2019, the court granted the

plaintiff’s motion and amended the scheduling order. (Dkt.

Order dated 9/26/2019.)

On December 2, 2019, the defendant filed a motion for

an extension of time to file the Commissioner’s cross-motion.

(ECF No. 12, Letter Motion for Extension of Time to File.) The

court granted the motion that same day. (Dkt. Order dated

12/2/2019.)

On February 20, 2020, plaintiff filed her notice of

motion and memorandum of law in support of plaintiff’s motion

for judgment on the pleadings. (ECF Nos. 14 and 15.) On that

same day, defendant filed his cross-motion and memorandum of law

in support of defendant’s cross-motion for judgment on the

pleadings and in opposition of plaintiff’s motion for judgment

on the pleadings. (ECF Nos. 16 and 17.) Later that same day,

plaintiff filed her reply memorandum of law. (ECF No. 18.)

LEGAL STANDARD

Unsuccessful claimants for disability benefits under

the Act may bring an action in federal district court seeking

judicial review of the Commissioner’s denial of their benefits

“within sixty days after the mailing . . . of notice of such

decision or within such further time as the Commissioner of

Social Security may allow.” 42 U.S.C. §§ 405(g), 1383(c)(3). A

district court, reviewing the final determination of the

Commissioner, must determine whether the correct legal standards

were applied and whether substantial evidence supports the

decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.

1998).

A district court may set aside the Commissioner’s

decision only if the factual findings are not supported by

substantial evidence or if the decision is based on legal error.

Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).

“Substantial evidence is more than a mere scintilla,” and must

be relevant evidence that a “reasonable mind might accept as

adequate to support a conclusion.” Halloran v. Barnhart, 362

F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 420

U.S. 389, 401 (1971)) (internal quotation marks omitted). If

there is substantial evidence in the record to support the

Commissioner’s factual findings, those findings must be upheld.

42 U.S.C. § 405(g). Inquiry into legal error “requires the

court to ask whether ‘the claimant has had a full hearing under

the [Commissioner’s] regulations and in accordance with the

beneficent purposes of the [Social Security] Act.’” Moran v.

Astrue, 569 F.3d 108, 112 (2d Cir. 2009). The reviewing court

does not have the authority to conduct a de novo review, and may

not substitute its own judgment for that of the ALJ, even when

it might have justifiably reached a different result. Cage v.

Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012).

To receive disability benefits, claimants must be

“disabled” within the meaning of the Act. See 42 U.S.C. §§

423(a), (d). A claimant is disabled under 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

12 months.” 42 U.S.C. § 423(d)(1)(A); Shaw v. Chater, 221 F.3d

126, 131–32 (2d Cir. 2000). The impairment must be of “such

severity” that the claimant is unable to do his previous work or

engage in any other kind of substantial gainful work. 42 U.S.C.

§ 423(d)(2)(A). “The Commissioner must consider the following

in determining a claimant’s entitlement to benefits: ‘(1) the

objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence

of pain or disability . . . ; and (4) the claimant’s educational

background, age, and work experience.’” Balodis v. Leavitt, 704

F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,

174 F.3d 59, 62 (2d Cir. 1999)).

Pursuant to regulations promulgated by the

Commissioner, a five-step sequential evaluation process is used

to determine whether the claimant’s condition meets the Act’s

definition of disability. See 20 C.F.R. § 404.1520. This

process is essentially as follows:

[I]f the Commissioner determines (1) that the claimant is

not working, (2) that he has a ‘severe impairment,’ (3)

that the impairment is not one [listed in Appendix 1 of

the regulations] that conclusively requires a

determination of disability, and (4) that the claimant is

not capable of continuing in his prior type of work, the

Commissioner must find him disabled if (5) there is not

another type of work the claimant can do.

Burgess, 537 F.3d at 120 (internal quotation marks and citation

omitted); see also 20 C.F.R. § 404.152(a)(4).

During this five-step process, the Commissioner must

consider whether “the combined effect of any such impairment . .

. would be of sufficient severity to establish eligibility for

Social Security benefits.” 20 C.F.R. § 404.1523. Further, if

the Commissioner does find a combination of impairments, the

combined impact of the impairments, including those that are not

severe (as defined by the regulations), will be considered in

the determination process. 20 C.F.R. § 416.945(a)(2). In steps

one through four of the sequential five-step framework, the

claimant bears the “general burden of proving . . . disability.”

Burgess, 537 F.3d at 128. At step five, the burden shifts from

the claimant to the Commissioner, requiring that the

Commissioner show that, in light of the claimant’s RFC, age,

education, and work experience, the claimant is “able to engage

in gainful employment within the national economy.” Sobolewski

v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).

Lastly, federal regulations explicitly authorize a

court, when reviewing decisions of the SSA, to order further

proceedings when appropriate. “The court shall have power to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Remand is

warranted where “there are gaps in the administrative record or

the ALJ has applied an improper legal standard.” Rosa v.

Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting Pratts v.

Chater, 94 F.3d 34, 39 (2d Cir. 1996) (internal quotation marks

omitted). Remand is particularly appropriate where further

findings or explanation will clarify the rationale for the ALJ’s

decision. Pratts, 94 F.3d at 39. However, if the record before

the court provides “persuasive proof of disability and a remand

for further evidentiary proceedings would serve no purpose,” the

court may reverse and remand solely for the calculation and

payment of benefits. See, e.g., Parker v. Harris, 626 F.2d 225,

235 (2d Cir. 1980); Kane v. Astrue, 942 F. Supp. 2d 301, 314

(E.D.N.Y. 2013).

DISCUSSION

I. The ALJ’s Disability Determination

Using the five-step sequential process to determine

whether a claimant is disabled as mandated by the regulations,

the ALJ determined at step one that the plaintiff had not

engaged in substantial gainful activity since June 1, 2014, the

alleged onset date of her disabilities. (Tr. at 12.) At step

two, the ALJ found that plaintiff suffered from severe

impairments of non-insulin dependent diabetes mellitus and

diabetic neuropathy. (Id.) The ALJ determined that plaintiff’s

alleged disabilities of hypertension, low-density lipids, and

poor vision due to a history of cataracts in both eyes and

glaucoma, were non-severe based on the evidence in the record,

which indicated that these impairments only minimally impacted

claimant’s ability to perform basic work tasks. (Id. at 13.)

At step three, the ALJ determined that Ms. Johnson did

not have an impairment or combination of impairments that met or

medically equaled the severity of one of the listed impairments

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

404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, or

416.926). (Id. at 14.)

At step four, the ALJ found that plaintiff had the

Residual Functional Capacity (“RFC”) to perform the full range

of light work as defined in 20 C.F.R. §§ 404.1567(b) and

416.967(b). (Id.) As part of his assessment, the ALJ

considered that the record substantiated some diabetes-related

limitations, including treatment reports indicating “tingling

and numbness in both hands and feet,” as well “uncontrolled

neuropathy with pain and numbness in lower extremity.” (Id. at

14-15.) Additionally, the ALJ opined that while the plaintiff’s

June 13, 2015 consultative report with Dr. Shannon Gearheart

revealed some limited range of motion in the lumbar spine, the

same exam and other exams showed that plaintiff’s gait was

normal, and had full strength in her upper and lower

extremities. (Id. at 15.) The ALJ gave Dr. Meisel’s opinion as

to the plaintiff’s physical limitations “partial weight,”

opining that the onetime exam in conjunction with treatment

records from Kings County Hospital did not indicate physical

limitation or a need for an assistive device. (Id. at 16.)

Notably, the ALJ “attempted to obtain records from NY Methodist,

but received no response to the records request.”

The ALJ concluded that because the plaintiff’s

neuropathy-related limitations appeared to be controlled by

medication, she retained the RFC to perform light work. (Id.)

The ALJ concluded that plaintiff’s impairments “could be

expected to produce the alleged symptoms; however, the

claimant’s statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely consistent

with the medical evidence . . ..” (Id.)

At step five, the ALJ found that plaintiff was capable

of performing her past work as a medical secretary. The

vocational expert testified that plaintiff could “still be able

to perform said job if limited to sedentary work.” (Tr. 16.)

Thus, the ALJ concluded that plaintiff was not disabled within

the meaning of the Act, as defined in 20 C.F.R. § 404.1520(f)

and 20 C.F.R. § 416.920(f), since June 1, 2014, through the date

of the hearing. (Id.)

II. The ALJ Failed to Fully Develop the Record

Plaintiff argues that at the April 18, 2017 hearing,

in her pro se capacity, she testified that she was treated at

New York Methodist Hospital for her gait, numbness in her hands,

and occupational therapy. (Pl. Memo. at 9-10.) The ALJ told

Ms. Johnson at the hearing that he would subpoena the medical

records from New York Methodist Hospital; however, the

transcript is devoid of any such records. (Tr. at 29-31.) Ms.

Johnson also alleges that the ALJ made no effort to procure

medical records from Dr. Amy Zarrin at the Neuro Clinic. Id.

Ms. Johnson went to Dr. Zarrin for treatment of her foot pain

and numbness in her hands. (Tr. 211.) Plaintiff alleges that

because the ALJ failed to develop the administrative record,

remand for a new hearing is proper. (Pl. Memo. at 10; citing

Rosa v. Callahan, 168 F.3d 72, 80-81, 83 (2d Cir. 1999).)

In response, the Commissioner argues that the Social

Security Administration properly requested the relevant medical

evidence and the ALJ then subpoenaed for records from New York

Methodist Hospital. (ECF No. 17, Def. Mem. At 9-10.) The

Commissioner also notes that the request for records from Dr.

Zarrin at the Neuro Clinic was encompassed in the original

request for records and subpoena because the Neuro Clinic is

located at New York-Presbyterian Brooklyn Methodist Hospital

Campus. Id.

“Where the claimant appears pro se, the ALJ has an

affirmative ‘duty...to scrupulously and conscientiously probe

into, inquire of, and explore for all the relevant facts.’”

Jasmin v. Callahan, No. 97 Civ. 2429(SS), 1998 WL 74290, at *4

(S.D.N.Y. Feb. 20, 1998) (quoting Hankerson v. Harris, 636 F.2d

893, 895 (2d Cir.1980)). “To assist the ALJ in developing the

record, the SSA's regulations authorize the ALJ to issue

subpoenas for documents that are ‘material to an issue at the

hearing’ when ‘it is reasonably necessary for the full

presentation of a case.’” Thurman v. Comm'r of Soc. Sec., No.

17-CV-474-FPG, 2018 WL 4940726, at *4 (W.D.N.Y. Oct. 12, 2018)

(citing 20 C.F.R. §§ 404.950(d), 416.1450(d)).

An ALJ has discretionary power in issuing and

enforcing subpoenas. Serrano v. Barnhart, No. 02 CIV. 6372

(LAP), 2005 WL 3018256, at *4 (S.D.N.Y. Nov. 10, 2005). In pro

se proceedings such as the this, “the ALJ's affirmative duty

requires not only requesting reports from treating physicians,

but mak[ing] every reasonable effort to obtain ... a report that

sets forth the opinion of that treating physician as to the

existence, the nature and the severity of the claimed

disability.” Villarreal v. Colvin, No. 13-CV-6253, 2015 WL

6759503, at *21 (S.D.N.Y. Nov. 5, 2015) (citations omitted). If

a subpoena is disregarded, an ALJ may seek to have the subpoena

enforced, they can suggest that the plaintiff obtain the

records, or they may suggest to the plaintiff that they can call

relevant medical sources as witnesses at the hearing. Carroll

v. Sec'y of Dep't of Health & Human Servs. of U.S., 872 F. Supp.

1200, 1204 (E.D.N.Y. 1995) (remanding the case for further

proceedings so that the ALJ can apply enforcement of a

subpoena). Additionally, in response to unanswered subpoenas,

it may be necessary for the ALJ to inform the claimant that the

record is incomplete and “suggest that [they] produce additional

medical evidence or call [their treating physician] as a

witness.” Emerick v. Saul, No. 19-CV-2826, 2020 WL 4504638, at

*3 (E.D.N.Y. Aug. 5, 2020) (quoting Carroll, 872 F. Supp. at

1204.)

The Commissioner contends that the ALJ fulfilled his

duty to develop the record by issuing a subpoena to New York

Methodist Hospital. (ECF No. 17, Def. Mem. At 9-10.) However,

the ALJ did not take steps to enforce the subpoena or give the

plaintiff notice that the record was incomplete. See Emerick v.

Saul, No. 19-CV-2826, 2020 WL 4504638, at *3 (E.D.N.Y. Aug. 5,

2020). In his decision, the ALJ noted that there was an attempt

to obtain records from New York Methodist Hospital, but received

no response, opining “the claimant’s allegations are not

substantially supported by treatment notes (particularly the

extensive records from Kings County Hospital-Exhibit 5F).” (Id.

at 15-16.) It does not appear throughout the record that the

ALJ informed the plaintiff that he was unable to gain access to

plaintiff’s New York Methodist records save for the ALJ’s

rationale as to his decision on plaintiff’s DIB claims. Because

plaintiff was never notified during her pro se hearing that she

could request medical records from New York Methodist Hospital

or request treating sources to testify in lieu of the ALJ’s

failure to enforce his April 17, 2017 subpoena, remand is

warranted.

III. The ALJ Provided an Improper Hypothetical to the

Vocational Expert

The ALJ also erred by presenting a hypothetical to the

testifying vocational expert that presumed that plaintiff was

able to “perform the full range of medium, light or sedentary

work.” (Tr. at 52.)

At the last step of the disability determination, the

Commissioner has the burden to prove that plaintiff is capable

of performing other jobs existing in significant numbers in the

national economy in light of plaintiff’s RFC, age, education,

and past relevant work. 20 C.F.R. §§ 416.920, 416.960. In

relying on a vocational expert’s testimony to satisfy this

burden, posing a “hypothetical question that does not present

the full extent of a claimant’s impairments cannot provide a

sound basis for vocational expert testimony.” Gray v. Astrue,

2009 WL 790942, at *14 (N.D.N.Y. Mar. 20, 2009); see also De

Leon v. Sec’y of Health & Human Servs., 734 F.2d 930, 936 (2d

Cir. 1984) (“In positing hypothetical questions to the

vocational consultant,” the ALJ must “present the full extent

of [the claimant’s] disabilities.”).

In this case, the ALJ posed hypothetical questions to

the vocational expert that were based on the premise that the

hypothetical claimant could perform “medium, light, or

sedentary work.” (Tr. at 52 (“Now, assuming I find the

claimant can perform the full range of medium, light or

sedentary work, she’d be able to do her past work, is that

correct?”).) Plaintiff alleges that the hypothetical

“conformed to [the ALJ’s] flawed RFC determination . . . which

did not include Ms. Johnson’s hand limitations.” (Pl. Memo. at

10.)

“In order to rely on a vocational expert’s opinion:

‘the hypothetical question posed to a vocational expert must

fully set forth a claimant’s impairments.’”) (quoting Totz v.

Sullivan, 961 F.2d 727, 730 (8th Cir.1992)). The ALJ’s

presumption that plaintiff could perform “medium, light, or

sedentary work” did not fully account for all of plaintiff’s

limitations since the ALJ failed to acquire medical records

from New York Methodist Hospital. These records would have

shed additional light on plaintiff’s limitations, specifically

plaintiff’s occupational therapy treatment for pain in her

hands (see Tr. at 30), and treatment for Ms. Johnson’s “foot

pain and numbness of hand” (see Tr. at 211) due to her

diabetes.

The court recognizes that, later in the hypothetical,

the ALJ did note plaintiff’s inability to “perform jobs

requiring frequent near or far acuity.” (See Tr. at 53.) The

court, however, cannot find that the vocational expert’s

testimony provided substantial support for the ultimate

conclusion that plaintiff could perform certain kinds of work,

because it was based on a hypothetical premised on the

unsupported assumption that plaintiff could perform “medium,

light, or sedentary work.” The ALJ should have enforced the

subpoena for medical records and/or informed plaintiff that she

also could request medical records from New York Methodist

Hospital to fully develop the record.

IV. The ALJ’s Evaluation of Ms. Johnson’s Obesity

Plaintiff argues that the ALJ failed to properly

assess the significant effect of Ms. Johnson’s obesity on her

abilities. (Pl. Memo at 11.) Defendant is ordered to consider

whether plaintiff’s claimed obesity affects her abilities.

However, the Court need not address this argument as the action

must be remanded for the reasons set forth above.

CONCLUSION

Federal regulations explicitly authorize a court,

when reviewing decisions of the SSA, to order further

proceedings when appropriate. “The court shall have power to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g). Remand is

particularly appropriate where further findings or explanation

will clarify the rationale for the ALJ’s decision. Pratts, 94

F.3d at 39.

Because the Court finds that the ALJ failed to

enforce the April 18, 2017 subpoena to New York Methodist

Hospital or inform pro se plaintiff of her options as to

requesting the documents or calling her physician to testify,

remand is warranted. Defendant is also ordered to consider

whether plaintiff’s claimed obesity affects her abilities.

Accordingly, plaintiff’s motion for judgment on the pleadings is

GRANTED, defendant’s cross-motion for judgment on the pleadings

is DENIED, and the case is REMANDED for further proceedings

consistent with this Memorandum and Order. The Clerk of Court

is respectfully directed to enter judgment in favor of

plaintiff.

SO ORDERED.

DATED: January 29, 2021

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge