UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________

JIMMY D.,

Plaintiff, vs. 5:23-CV-626 (MAD/TWD) COMMISSIONER OF SOCIAL SECURITY,

Defendant. ____________________________________________

APPEARANCES: OF COUNSEL:

LAW OFFICES OF STEVEN R. STEVEN R. DOLSON, ESQ. DOLSON, PLLC 6320 Fly Road Ste. 201 Syracuse, New York 13202 Attorney for Plaintiff

SOCIAL SECURITY ADMINISTRATION JASON P. PECK, ESQ. OFFICE OF GENERAL COUNSEL 6401 Security Boulevard Baltimore, Maryland 21235 Attorney for Defendant

Mae A. D'Agostino, U.S. District Judge:

ORDER Plaintiff, Jimmy D., commenced this action pursuant to

(g) seeking review of the decision of the Commissioner of Social Security (the "Commissioner") denying his applications for Social Security Disability Insurance Benefits and Supplemental Security Income. See Dkt. No. 2. In a Report and Recommendation dated September 23, 2024, Magistrate Judge Thérèse Wiley Dancks recommended that (1) Plaintiff's motion for judgment on the pleadings be granted; (2) Defendant's motion for judgment on the pleadings be denied; and (3) the Commissioner's decision be reversed pursuant to sentence four of

(g) for further administrative proceedings. See Dkt. No. 11. Neither party filed objections to the Report and Recommendation. When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear- error review. See Petersen v. Astrue,

(N.D.N.Y. 2012) (citing FED. R. CIV. P. 72(b), Advisory Committee Note: 1983). "When performing such a 'clear error' review, 'the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'"

(citation omitted). After the appropriate review, "the court may

accept, reject or modify, in whole or in part, the findings or recommendation made by the magistrate judge."

(b)(1). The Court does not discern any clear error in the Report and Recommendation. As Magistrate Judge Dancks found, reversal and remand are warranted because the Administrative Law Judge ("ALJ") inappropriately relied on the stale medical opinions of state agency medical consultants J. Randall, M.D., and S. Putcha, M.D., and misconstrued Plaintiff's statements about his activities of daily living ("ADL"). First, the Court agrees that the ALJ's reliance on Drs. Randall and Putcha's medical opinions requires remand because neither state agency physician reviewed medical records or testimony related to Plaintiff's visual limitations. See Dkt. No. 11 at 8-9. "By itself, '[a] gap of

time between when an opinion is rendered and the disability hearing and decision does not automatically invalidate that opinion,' . . ., but a 'meaningful chan[ge]' in the plaintiff's condition during that gap will do so." Maxwell H. v. Comm'r of Soc. Sec., No. 1:19-CV-0148,

, *5 (N.D.N.Y. Mar. 12, 2020) (quoting Majdandzic v. Comm'r of Soc. Sec., No. 17-CV- 1172,

, *3 (W.D.N.Y. Oct. 19, 2018); Lamar v. Comm'r of Soc. Sec., No. 18- CV-829,

, *3 (W.D.N.Y. Feb. 4, 2020)). For example, "[a] medical opinion may become stale 'if the claimant's condition deteriorates after the opinion is rendered and before the ALJ issues his decision.'"

(quoting Clute ex rel. McGuire v. Comm'r of Soc. Sec., No. 18-CV- 30,

, *5 (W.D.N.Y. Dec. 21, 2018)); see also Joyce v. Comm'r of Soc. Sec., No. 1:20-CV-1112,

, *4 (W.D.N.Y. July 11, 2022) ("[T]he record is clear that even though Plaintiff experienced periods of improvement of her neck, back, shoulder, and hand pain following the . . . surgery, such improvement was temporary, and, as such, should not have been solely relied on by the ALJ to determine that Plaintiff was capable of working").

As Magistrate Judge Dancks thoroughly explained, there are medical records indicating that Plaintiff's vision was worsening, which corresponds to his diabetic retinopathy diagnosis. See Dkt. No. 11 at 8-9. Remand is required for further consideration of these records compared to the medical opinions which did not consider them. Second, as to Plaintiff's ADLs, the Court agrees with Magistrate Judge Dancks' analysis and conclusion, stating that although the ALJ appropriately considered Plaintiff's ADLs from prior to his diagnosis of diabetic retinopathy, the ALJ's decision was lacking consideration of Plaintiff's ADLs after his condition seemingly worsened. See Dkt. No. 11 at 10-11; see also Bogdan v. Kijakazi, No. 3:20-CV-01341,

, *7-8 (D. Conn. Aug. 9, 2021) (concluding that the ALJ erred in his interpretation of claimant's function report,

mischaracterizing claimant's capabilities and stating that he continues to enjoy activities that claimant "used to" enjoy, but can no longer do). Finally, the Court agrees that the ALJ's errors are not harmless. See Dkt. No. 11 at 11-13. The purported evidence concerning Plaintiff's visual impairments does not extend beyond Plaintiff's date last insured, it is possible that a medical source has since opined on Plaintiff's visual impairment and related limitations, and such limitations could significantly reduce the jobs available to Plaintiff. As Magistrate Judge Dancks explained, the ALJ did not discuss whether there were any jobs available that Plaintiff could perform because she concluded that he was "not disabled."

. Therefore, Magistrate Judge Dancks correctly concluded that remand is necessary for further consideration of Plaintiff's visual limitations and how, if at all, those limitations impact the availability of jobs. See Clark v. Saul,

, 621 (S.D.N.Y. 2020) ("[F]or these records to provide substantial evidence of a disability during the relevant time period, the records must actually shed light on [claimant's] condition during that period"); Robert

R. v. Comm'r of Soc. Sec., No. 5:19-CV-680,

, *7 (N.D.N.Y. Sept. 15, 2020) ("[T]here was still at least one job existing in significant numbers in the national economy Plaintiff could perform, and the alleged visual limitation would not alter the ultimate disability determination"). Accordingly, after carefully reviewing the Report and Recommendation, the entire record in this matter, and the applicable law, the Court hereby ORDERS that Magistrate Judge Dancks' Report and Recommendation (Dkt. No. 11) is ADOPTED in its entirety for the reasons set forth herein; and the Court further ORDERS that Plaintiff's motion for judgment on the pleadings (Dkt. No. 9) is GRANTED; and the Court further

ORDERS that Defendant's motion for judgment on the pleadings (Dkt. No. 10) is DENIED; and the Court further ORDERS that the Commissioner's decision denying disability benefits is REVERSED and this matter is REMANDED, pursuant to sentence four of

(g) for further proceedings consistent with this Order and Magistrate Judge Dancks' Report and Recommendation; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Plaintiff's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules. IT ISSO ORDERED. Pa Lak Digs U.S. District Judge