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BARIMAH v. COMMISSIONER

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, ...


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