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BARIMAH v. COMMISSIONER

United States District Court, E.D. New York


September 27, 2004.

RAYMOND TWUM BARIMAH, Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

The opinion of the court was delivered by: DAVID TRAGER, District Judge

ORDER

On March 13, 2003, this court issued an order granting plaintiff disability insurance benefits as of March 1, 2000, and remanding to the defendant Commissioner of Social Security ("Commissioner") for a determination of whether the evidence supports an earlier onset date. The Commissioner then brought this motion for reconsideration, alleging the March 13, 2003 opinion overlooked controlling law. Specifically, the Commissioner argues the court's subject matter jurisdiction under the Social Security Act (the "Act") is limited to the time frame of plaintiff's application, and therefore the court cannot declare plaintiff to be disabled as of March 1, 2000.

Procedural History

  On November 16, 1998, plaintiff Raymond T. Barimah ("Barimah"), then 58 years old, applied for Social Security Disability Insurance Benefits ("SSDI"), alleging a disability beginning July 2, 1997. (Tr. 122-126).*fn1 On the Disability Report that accompanied Barimah's application he listed, "failed retina detachment surgery, poor vision in both eyes, high blood pressure." (Tr. 122). Barimah's claim was denied initially (Tr. 106-108), and was again denied on reconsideration. (Tr. 110-111). Barimah then requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 112-113). On August 25, 1999, a hearing was held at which Barimah was represented by counsel. On September 1, 1999, plaintiff's counsel contacted the ALJ to request that the record be kept open in anticipation of another report from Dr. Podhorzer. (Tr. 271-72).

  On September 2, 1999, without waiting for the medical report, the ALJ issued a decision denying benefits. (Tr. 24-32). On August 29, 2001, after considering additional evidence presented by Barimah, the Appeals Council denied his request for review. Barimah then commenced this action. The Commissioner moved for judgment on the pleadings to affirm her decision that plaintiff was not disabled, and plaintiff cross-moved, requesting that the Commissioner's decision be reversed and remanded solely for calculation of benefits or alternatively, be remanded for further administrative proceedings.

  Oral argument on the motion and cross-motion was held on January 24, 2003. At oral argument, the parties were encouraged to settle, as it was clear that Barimah was disabled prior to December 31, 2000, the last date on which he met the insured status requirements of the Act. The plaintiff filed a supplemental letter on February 24, 2003, and the Commissioner filed a supplemental letter in response on February 25, 2003. In the Commissioner's February 25 letter, the Commissioner stated it "could not agree" to a remand because "the only issue before the Court is whether substantial evidence supports the Commissioner's decision that from July 2, 1997, the alleged onset date, through September 2, 1999, the date of the ALJ's hearing decision (the `relevant period')," Barimah was not disabled. The letter further stated the Commissioner had "never considered the issue of whether plaintiff met the criteria for legal blindness as of March 1, 2000."

  On March 13, 2003, this court issued an order granting plaintiff disability insurance benefits as of March 1, 2000, and remanding to the defendant Commissioner of Social Security ("Commissioner") for a determination of whether the evidence supports an earlier onset date. The March 13 opinion explained that although the medical evidence submitted to the Appeals Council "reflects the results of tests performed after the ALJ's decision, the Second Circuit has repeatedly held that diagnoses post-dating the relevant period may reveal that a claimant `had an impairment substantially more severe than was previously diagnosed.'" (quoting Lisa v. Secretary of the Dep't of Health & Human Servs., 940 F.2d 40, 44 (2d Cir. 1991)).

  The Commissioner brought this motion for reconsideration on March 26, 2003.

  Relevant Medical History

  Barimah first experienced problems with his left eye in 1994 and had his first cataract surgery in June 1995. (Tr. 58). He fully recovered in about five months and returned to work in February 1996. (Tr. 59-60). According to Barimah, he stopped working in August 1997 because he was laid off and also because he started to feel dizzy and did not see well. (Tr. 59-60). At that time, he began to collect unemployment benefits. (Tr. 62). In November 1997, he traveled to Ghana and stayed there for about one month because of the death of his mother. (Tr. 62-63). Upon returning to the United States, Barimah unsuccessfully began searching for a new job. (Tr. 63). By May 1998, his left eye retina had detached and he underwent surgery to correct it. (Tr. 64). Between July and September 1998, Barimah underwent three additional left eye surgeries, which, in the long run, did not improve his vision. (Tr. 66).

  Starting in February 1999, Barimah's ophthalmologist, Dr. Podhorzer, began to monitor Barimah's right eye for the possible development of glaucoma because of a finding of a very deep optic nerve cup. (Tr. 217-18, 273). Subsequent reports through June of 1999 indicated that the right eye retained normal vision.

  At the hearing before the ALJ on August 25, 1999, Barimah testified that he could not see anything out of his left eye and that he felt pressure in his right eye. (Tr. 66-67). He asserted that he could only read large numbers or print. However, he also testified that he could read Reader's Digest or the New York Times, although only for about five minutes at a time before his vision blurred. (Tr. 67,70,72-74). He also stated that he tried to read notwithstanding his alleged eye problems. (Tr. 71). Barimah claimed that he had headaches on a regular basis for which he took Tylenol and aspirin. (Tr. 81-82). In addition, he testified that he experienced dizziness once or twice per week. (Tr. 84-85). Barimah testified that since his 1998 surgeries, he could not see anything with his left eye and that he had problems with his right eye. (Tr. 66-67). Barimah also testified that every time he uses prescribed eye drops they make him sleepy and that therefore he must lie or sit down. (Tr. 70).

  Tests conducted by Dr. Podhorzer on September 15, 1999 showed "a significant decrease in parameters throughout the visual field . . . for both eyes," and that Barimah's right eye vision with correction was 20/50. (Tr. 273). On March 1, 2000, Barimah began seeing a neuro-ophthalmologist, Dr. Essuman, who reported that Barimah was partially blind in his right eye. (Tr. 279). The condition evidently continued to worsen, and in April 2001, Dr. Essuman reported that Barimah's right eye vision was 20/400, making him totally blind in both eyes. (Tr. 11-16).

  Discussion

  (1)

  Evidence Submitted to the Appeals Council was New and Material

  The Commissioner claims that the new evidence Barimah submitted to the Appeals Council "was not material because it does not relate to the relevant time period." (Def'ts Mem. of Law in Supp. of Mot. for Reconsideration at 7.) In fact, the new evidence does relate to the relevant time period. Furthermore, the evidence shows the ALJ's findings that (1) Barimah's testimony concerning his right eye lacked credibility, and (2) Barimah had 20/20 vision in his right eye as of September 2, 1999, were contrary to the weight of the evidence before the Appeals Council.

  Where new and material evidence is submitted to the Appeals Council with the request for review, the entire record will be evaluated, and review will be granted where the Appeals Council finds that the ALJ's conclusion is contrary to the weight of the evidence currently in the record. See 20 C.F.R. § 404.970. The Appeals Council considers the additional evidence only if it relates to the period on or before the date of the ALJ's decision. See 20 C.F.R. § 404.970(4)(b). If such evidence is submitted, the Appeals Council grants review if it finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record. See id. When the Appeals Council denies review of the ALJ's decision, the new evidence submitted to the Appeals Council becomes the part of administrative record for judicial review. 42 U.S.C.A. § 405(g). See also Perez v. Chater, 77 F.3d 41 (2d Cir 1996). The court reviews the entire administrative record, including the new evidence, and determines whether there is substantial evidence to support the Commissioner's decision. See id. at 46.

  If a claimant submits evidence that does not relate to the period on or before the date of the ALJ hearing decision, the Appeals Council returns the additional evidence with an explanation as to why it did not accept it and with instructions on the claimant's right to file a new application.*fn2 20 C.F.R. § 404.976(b)(1). If the new application is filed within six months of the Appeals Council notice, the request for Appeals Council review will be used as the filing date for the new application. Id.

  Barimah submitted three documents to the Appeals Council, which were not originally reviewed by the ALJ. Taken together these documents establish that some time after June 14, 1999 (the last date Dr. Podhorzer's records indicate normal vision in Barimah's right eye), but before March 2000, Barimah became partially blind in his right eye. Moreover, by April 2001 he was totally blind in both eyes. Admittedly, all three documents reflect the results of tests conducted after the ALJ's decision. However, the Second Circuit has repeatedly observed that diagnoses post-dating the relevant period may reveal that a claimant "had an impairment substantially more severe than was previously diagnosed." See Lisa v. Secretary of the Dep't of Health & Human Servs., 940 F.2d 40, 44 (2d Cir. 1991); accord Fernandez v. Apfel, 2000 WL 271967 at *9 (E.D.N.Y. Mar. 7, 2000). Such diagnoses can also "identify additional impairments which could reasonably be presumed to have been present and to have imposed limitations as of the [relevant period]." See Lisa, 940 F.2d at 44. These admonitions are especially apt in cases such as this, where the claimant suffers from a degenerative condition that deteriorates progressively. As the course of the condition in Barimah's left eye demonstrates, a diagnosis of near perfect vision on a given date is not necessarily inconsistent with a substantially worse condition a short time later. Compare, e.g., Dr. Podhorzer's examination on July 15, 1998 (Tr. 163) (finding 20/30 vision in the left eye) with Dr. Podhorzer's examination on July 20, 1998 (Tr. 164) (finding 20/400 vision in the left eye, after a sudden retinal detachment).

  The first document submitted to the Appeals Council is a letter dated September 15, 1999 from Barimah's treating ophthalmologist, Dr. Podhorzer, explaining the results of vision testing performed on September 15, 1999, only 13 days after the ALJ's decision. (Tr. 273-74). The letter reiterates the significant problems previously diagnosed in Barimah's left eye. However, in contrast to substantially all of Dr. Podhorzer's prior records, the September 15 letter also indicates vision problems in Barimah's right eye. Dr. Podhorzer reported that (1) there was a significant depression of parameters throughout the visual field, and (2) that Barimah's right eye vision, even with correction, was 20/50. These findings clearly undermine the ALJ's conclusion "that claimant's right eye has normal vision and no medically-determinable condition of functional significance is present in it." (Tr. 29).

  Although Dr. Podhorzer's letter of September 15, 1999 relays the results of tests performed after the ALJ's decision and does not indicate that these tests reflect the condition of Barimah's right eye during the period prior to the ALJ's decision, the tests were performed only 13 days after the ALJ's decision and, in fact, are significantly closer in time to the decision than the contrary evidence upon which the ALJ based his decision that Barimah, notwithstanding his subjective complaints, had normal vision in his right eye as of September 2. These findings, when considered in the context of all the evidence currently in the record, strongly suggest that in the interval between Dr. Podhorzer's examinations in early June and the ALJ's decision on September 2, Barimah developed an impairment in his right eye that was "substantially more severe than was previously diagnosed." Lisa, 940 F.2d at 44.

  Barimah also submitted to the Appeals Council two reports from Dr. Essuman, a neuro-ophthalmologist, who started treating Barimah on March 1, 2000. In a report, dated March 16, 2000, six months after the ALJ's decision, Dr. Essuman reported that in addition to total blindness in his left eye, Barimah was partially blind in the right eye. (Tr. 279). Subsequently, Barimah's right eye vision continued to diminish. In a vision impairment questionnaire completed on April 9, 2001, Dr. Essuman concluded that Barimah was blind in both eyes and was therefore unable to perform any work. (Tr. 16).

  In this case, the record now clearly demonstrates that Barimah's right eye vision is impaired — indeed, that he is blind in the right eye. The question is whether, taking into account the additional evidence submitted to the Appeals Council, the ALJ's determination that as of September 2, 1999 Barimah had normal vision in his right eye, and therefore was not entitled to disability benefits, is supported by substantial evidence in the record. During the hearing, Barimah complained of pain and decreased vision in his right eye. The ALJ found that these subjective complaints were not credible considering that the most recent medical evidence then available (Dr. Podhorzer's reports from June 1999) continued to indicate that Barimah's right eye vision was normal. However, the evidence submitted to the Appeals Council shows that in fact Barimah's complaints of pain and decreased vision in the right eye could have represented the initial onset of a rapidly-progressing significant impairment in the right eye. At the very least, the ALJ's finding that Barimah had "no medically determinable condition of functional significance" in his right eye is now contradicted by Dr. Podhorzer's finding, approximately two weeks after the ALJ's decision, that Barimah had "a significant depression of parameters throughout the visual field," affecting his vision in both eyes, and more specifically that the visual acuity in Barimah's right eye, which had previously been found to be 20/20, had decreased to 20/50 with correction. Based on the evidence available on September 2, 1999, the ALJ found that, despite Barimah's subjective complaints, he had no impairment in his right eye and that "any proposition to the contrary [would] be purely speculative." (Tr. 29). However, Dr. Podhorzer's letter of September 15, 1999 provides tangible medical evidence of visual impairments affecting Barimah's right eye only 13 days after the ALJ's determination that Barimah did not qualify for Social Security benefits because his right eye vision was normal.

  The new evidence submitted to the Appeal Council provided objective medical support for Barimah's subjective complaints at the August 25, 1999 hearing of visual impairments affecting his right eye. Moreover, the ALJ abused his discretion by issuing a decision one day after plaintiff's counsel asked him to wait for an updated report from Dr. Podhorzer.

  (2)

  Barimah is Clearly Entitled to Benefits as of September 2, 1999

  An application for social security benefits only remains in effect through the date of the ALJ's decision after a hearing. 42 U.S. § 402(j)(2); 20 C.F.R. § 404.620(a). The government points to legislative history suggesting the amendment of 42 U.S.C. § 402(j)(2) was intended to foreclose the introduction of new evidence after the hearing and the ALJ's decision. (Def't Mem. of Law in Supp. at 6). The waiver of sovereign immunity created by Congress provides only for review after a "final decision of the Commissioner made after a hearing." 42 U.S.C. § 405(g). Therefore, the government argues, "the Court's reviewing authority is limited by the time frame of plaintiff's application, delineated by the alleged onset of plaintiff's disability and the [Commissioner's] decision regarding the plaintiff's eligibility as a result of that disability." Firpo v. Shalala, No. 94-cv-3368, 1995 WL 92264 at *3 (S.D.N.Y. 1995), aff'd 100 F.3d 943 (2d Cir. 1996) (quoted in Def't Mem. of Law in Supp. at 6).

  "[W]hen the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," remand solely for calculation of benefits is appropriate. Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). The March 2000 report from Dr. Essuman, a specialist and treating physician, provides clear evidence that Barimah met the listings for statutory blindness as of March 1, 2000, and consequently is entitled to SSDI benefits. On reconsideration, it is also clear a remand for determination of the onset date of Barimah's disability would serve no purpose. Barimah's testimony at the hearing, combined with Dr. Podhorzer's September 1999 letter, demonstrate that the deterioration of vision in his right eye began prior to the ALJ's decision. Barimah is entitled to benefits as of September 2, 1999.

  Conclusion

  Accordingly, the motion for reconsideration is granted in part, and the Order and Judgment dated March 13, 2003 are vacated. The Commissioner's decision that the plaintiff is not entitled to disability insurance benefits is reversed, pursuant to sentence four of 42 U.S.C. § 405(g). It is hereby ordered that the plaintiff is granted disability insurance benefits as of September 2, 1999. The case is remanded solely for calculation of benefits. The Clerk of the Court is directed to close the case.

  SO ORDERED.


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