1

14-2506-cv 

Michaels v. Colvin 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 

THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER 

MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 

14th day of August, two thousand fifteen. 

PRESENT: AMALYA L. KEARSE, 

ROSEMARY S. POOLER, 

CHRISTOPHER F. DRONEY, 

 Circuit Judges. 

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DAVID M. MICHAELS,

 Plaintiff-Appellant, 

 v. No. 14-2506-cv 

 

CAROLYN W. COLVIN, Acting Commissioner of Social Security,

 Defendant-Appellee.

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FOR APPELLANT: CHRISTOPHER JAMES BOWES, Shoreham, NY. 

FOR APPELLEE: MÓNICA P. FOLCH, Assistant United States Attorney 

(Benjamin H. Torrance, Assistant United States 

Attorney, on the brief), for Preet Bharara, United 

States Attorney for the Southern District of New 

York, New York, NY. 

 Appeal from a judgment of the United States District Court for the Southern District of 

New York (Sullivan, J.). 
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is VACATED and the case is REMANDED 

to the district court for further proceedings consistent with this order. 

 Plaintiff-Appellant David M. Michaels appeals from the district court’s May 20, 2014 

judgment denying his motion for judgment on the pleadings, granting the Commissioner’s crossmotion for judgment on the pleadings, and affirming the Commissioner’s denial of disability 

insurance benefits under the Social Security Act.1 Michaels suffered a head injury on December 

8, 2003, and was diagnosed soon after with a vestibular disorder, which causes him to experience 

episodes of dizziness. According to Michaels, these episodes are often triggered by extended 

computer use. The Administrative Law Judge (“ALJ”) reviewing Michaels’s application for 

benefits concluded, as set forth at Step Four of the Social Security Administration’s sequential 

disability analysis, that Michaels was capable of performing his past relevant work on or before 

the date last insured, December 31, 2007.2

 We assume the parties’ familiarity with the 

underlying facts, to which we refer only as necessary to explain our decision. 

I. Michaels’s Ability to Perform Past Relevant Work

 The vocational expert who testified at Michaels’s hearing—Darren Flomberg—stated 

that Michaels’s past positions as a business analyst, project manager, director of research, and 

development manager each required “heavy computer use,” which Mr. Flomberg defined as at 

least three to five hours of computer use in an eight-hour workday. The ALJ rejected Michaels’s 

claim that his vestibular symptoms prevented him from performing such work, stating that 

January 2009 “was the first time that [Michaels] mentioned that use of a computer can trigger 

[his] symptoms” and that “[t]he treating record does not confirm [Michaels’s] report prior to 

calendar year 2008 relating to ‘computer-use problems.’” Social Security Administration 

Administrative Record (“R.”) 23 n.3, 24 n.4. As the Commissioner concedes on appeal, 

however, “the ALJ was mistaken in asserting that there was no evidence of Michaels’s 

computer-related problems prior to 2008.” Appellee Br. at 33-34 n.9. To the contrary, 

Michaels’s medical records between December 8, 2003, and December 31, 2007, document his 

repeated complaints that using a computer for more than two or three hours at a time left him 

feeling nauseous, dizzy, and fatigued, and required him to refrain from further computer use.3

 

 

1

 In ruling on the motions, the district court adopted the February 19, 2014 Report and Recommendation of United 

States Magistrate Judge Gabriel W. Gorenstein “in its entirety.” Michaels v. Colvin, No. 12 Civ. 9213 RJS GWG, 

2014 WL 2086039, at *2 (S.D.N.Y. May 19, 2014). 

2

 “The Social Security Administration regulations outline the five-step, sequential evaluation process used to 

determine whether a claimant is disabled: (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 residual functional capacity, age, education, and work experience.” 

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). 

3 See, e.g., R. 366 (able to sit at computer for about two hours in August 2004); R. 394 (limited to 2 to 2.5 hours of 

computer use in September 2004); R. 392 (experienced worsening symptoms after working on computer for two 
 3

Thus, the ALJ’s finding “did not comply with the ALJ’s obligation to consider ‘all of the 

relevant medical and other evidence.’” Genier v. Astrue, 606 F.3d 46, 50 (2d Cir. 2010) (quoting 

20 C.F.R. § 404.1545(a)(3)). 

 We cannot accept the Commissioner’s contention that this oversight was immaterial. Mr. 

Flomberg testified that Michaels’s past work required at least three to five hours of computer use 

daily and that the skills he developed in his past positions “are skills that generally are used when 

working in front of a computer.” R. 59-60. By overlooking Michaels’s history of complaints 

prior to 2008, the ALJ disregarded evidence that directly contradicted his conclusion that 

Michaels could perform his past relevant work. 

 Moreover, we find this error was not harmless because, after considering the record as a 

whole, we find that the ALJ’s ultimate conclusion that Michaels was capable of performing his 

past relevant work was not, in fact, supported by substantial evidence. The record is replete with 

uncontradicted evidence that Michaels would not be able to work at a computer for three to five 

hours a day, including his numerous documented complaints regarding the vestibular symptoms 

that he experienced from extended computer use. Dr. Gerald Winkler—the neurologist who 

testified at Michaels’s hearing—found Michaels’s complaints to be “entirely consistent with the 

known characteristics of the effects of head trauma on the balance working of the inner ear” and 

observed that this condition would limit one’s ability to “work[] in situations where the visual 

input would be similar to scrolling computers or moving rows of objects, particularly those in 

close proximity to the eyes.” R. 40. He concluded that Michaels would only be able to perform 

“activit[ies] which involved limited use of the computer such as looking up data from time-totime without having to scroll.” Id. (emphasis added). Because Michaels was unable to perform 

his past work requiring heavy computer use, the ALJ erred in finding that Michaels was not 

disabled at Step Four of the disability analysis.4

 

 

hours in October 2004); R. 391 (limited to two hours on the computer and experienced a “few bad days related to 

[the] computer” in January 2005); R. 390 (unable to continue using the computer after ninety minutes in March 

2005); R. 376 (experienced a “bad episode of nausea and dizziness” that required him to lie down for several hours 

after three hours of scrolling on computer in May 2007); R. 283 (experienced dizziness and tiredness from looking 

between computer screen and desk and from reading on the computer for a prolonged period of time in July 2007). 

4

 We also cannot agree with the ALJ’s alternative finding at Step Five that Michaels was “not disabled” under the 

medical vocational guidelines. 

[A]pplication of the grid guidelines . . . must be determined on a case-by-case basis. If the 

guidelines adequately reflect a claimant’s condition, then their use to determine disability status is 

appropriate. But if a claimant’s nonexertional impairments significantly limit the range of work 

permitted by his exertional limitations then the grids obviously will not accurately determine 

disability status because they fail to take into account claimant’s nonexertional impairments. 

Accordingly, where the claimant’s work capacity is significantly diminished beyond that caused 

by his exertional impairment the application of the grids is inappropriate. 

Bapp v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986) (internal quotation marks and citation omitted). Under the 

facts of this case, Michaels’s limited ability to use a computer for prolonged periods of time without experiencing 

nausea or dizziness is a significant nonexertional limitation that rendered application of the guidelines inappropriate. 
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II. Remand for Further Fact-Finding

Michaels urges this Court to vacate the decision below and remand solely for a 

calculation of benefits. “In . . . situations[] where this Court has had no apparent basis to 

conclude that a more complete record might support the Commissioner’s decision, we have 

opted simply to remand for a calculation of benefits.” Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 

1999). However, “[w]here there are gaps in the administrative record . . . , we have, on 

numerous occasions, remanded to the [Commissioner] for further development of the evidence.” 

Id. at 82-83 (third alteration in original) (internal quotation marks omitted). 

 Although we find that Michaels was unable to perform his past relevant work, the record 

does not foreclose the possibility that there may be “significant numbers of jobs in the national 

economy that [he] can perform given [his] residual functional capacity, age, education, and work 

experience” (Step Five of the disability analysis). McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 

2014). In addition to computer-related skills, Mr. Flomberg testified that someone in Michaels’s 

past positions might develop telephone, record-keeping, and filing skills. This testimony at least 

suggests that there may be other jobs that Michaels could perform that would not require heavy 

computer use. Mr. Flomberg did not testify, though, as to how much computer use or head or 

eye movement such positions would require, so Michaels’s ability to work in these positions 

remains unclear. 

 Furthermore, while both the ALJ and Michaels’s counsel posed hypotheticals to Mr. 

Flomberg regarding Michaels’s ability to perform other work, these hypotheticals are not 

currently sufficient to resolve the Step Five inquiry, because it is not clear that they accurately 

represented Michaels’s limitations. See id. at 151 (“An ALJ may rely on a vocational expert’s 

testimony regarding a hypothetical [at Step Five] as long as there is substantial record evidence 

to support the assumption[s] upon which the vocational expert based his opinion, and [they] 

accurately reflect the limitations and capabilities of the claimant involved . . . .” (second 

alteration in original) (internal quotation marks and citation omitted)). The ALJ’s hypothetical 

assumed an individual whose only limits on computer use would be “rapid movements of the 

head” and “scrolling.” R. 61. However, Dr. Winkler’s testimony and Michaels’s medical 

records show that Michaels’s limitations were far more extensive; the simple acts of moving his 

eyes up and down and looking back and forth between a computer screen and a desk were 

sufficient to trigger his vestibular symptoms. Moreover, although Mr. Flomberg testified that the 

claimant in the ALJ’s hypothetical could work as a receptionist, service representative, or 

telephone operator, he did not indicate the amount of computer use that these positions would 

require. Thus, it is also unclear whether Michaels’s limitations would prevent him from working 

in these capacities as well. 

 Michaels’s hypothetical to Mr. Flomberg was also inapt. Several of his hypothetical 

claimant’s limitations were drawn from Dr. Lawrence Meiteles’s May 21, 2007 Vestibular 

Disorder Medical Assessment of Michaels, including dizziness “on a daily basis that lasts for 

several hours at a time” and dizziness interfering with attention and concentration “34 to 66 

percent of the time.” Compare R. 65-66, with R. 568, 570. The ALJ neglected to explain the 

weight he assigned to this treating source. See Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). 
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However, he appears to have partially discredited Dr. Meiteles’s conclusions on the Assessment 

Form seemingly on the basis that they were unexplained, contradictory, or unsupported by other 

evidence in the record.5 Because the limitations described by Michaels’s counsel may not 

accurately represent Michaels’s limitations, Mr. Flomberg’s conclusion that the hypothetical 

claimant “[would not] be able to do anything” in terms of other work does not resolve the Step 

Five inquiry. R. 66. Accordingly, we remand to the district court with instructions to remand 

the matter to the Commissioner for further fact-finding as to Step Five of the disability analysis. 

See, e.g., Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008) (“We have remanded in . . . cases 

where the ALJ has . . . failed to consider relevant probative evidence.”); Melville v. Apfel, 198 

F.3d 45, 52 (2d Cir. 1999) (“It is not the function of a reviewing court to decide de novo whether 

a claimant was disabled, or to answer in the first instance the inquiries posed by the five-step 

analysis set out in the SSA regulations.” (citation omitted)). 

III. Michaels’s Residual Functioning Capacity

 Because Michaels’s residual functioning capacity is relevant at Step Five of the disability 

analysis, see 20 C.F.R. § 404.1520(e), (g), we also address the ALJ’s finding that Michaels could 

perform light work. We conclude that this finding was not supported by substantial evidence. 

Light work generally requires “a good deal of walking or standing,” 20 C.F.R. § 404.1567(b), 

“for a total of approximately 6 hours of an 8-hour workday.” Titles II & XVI: Determining 

Capability to Do Other Work—The Med.-Vocational Rules of Appendix 2, SSR 83-10, 1983 

WL 31251, at *6 (1983). Michaels testified that in order to stand for a prolonged period of time, 

he would need to “lean on something . . . to add some stability,” R. 88, and Dr. Winkler testified 

that Michaels had been classified as a “medium fall risk.” R. 41. Moreover, although the record 

indicates that Michaels was capable of occasionally walking for some part of each day, it does 

not support a conclusion that he could meet the physical demands of light work. 

 Implicit in the ALJ’s finding that Michaels could perform light work was also a finding 

that Michaels could perform sedentary work, however. See 20 C.F.R. § 404.1567(b) (“If 

someone can do light work, we determine that he or she can also do sedentary work . . . .”). We 

conclude that this finding—that Michaels could perform sedentary work—is supported by 

substantial evidence. In contrast to light work, sedentary work primarily “involves sitting, [with] 

a certain amount of [occasional] walking and standing.” Id. § 404.1567(a). “[P]eriods of 

standing or walking should generally total no more than about 2 hours of an 8-hour workday, and 

sitting should generally total approximately 6 hours of an 8-hour workday.” SSR 83-10, 1983 

 

5 See, e.g., R. 269 (Michaels stating that “my sym[p]toms . . . last up to an hour” after working on the computer); R. 

393 (medical notes stating that Michaels “recovers on 1 h[our] of resting” after activity lasting more than two 

hours); R. 394 (medical notes stating that Michaels needed to lie down for 30 to 40 minutes after working on the 

computer for two or more hours); R. 568 (Dr. Meiteles stating on Vestibular Disorder Medical Assessment Form 

that he “c[ould] not assess” Michaels’s prognosis); R. 570-72 (Dr. Meiteles stating that he did not assess “aspects of 

workplace stress that [Michaels] would be unable to perform” or Michaels’s “functional limitations” in a workplace 

setting); R. 568, 570 (Dr. Meiteles indicating that Michaels’s dizziness interfered with his attention and 

concentration 34% to 66% of an eight-hour work day, while not indicating that “mental confusion/inability to 

concentrate” were symptoms associated with Michaels’s dizziness); R. 570, 578 (Dr. Meiteles stating that he could 

not assess whether “precipitating factors such as stress, exertion, sudden movement, certain kinds of light, computer 

monitors, etc.” triggered Michaels’s dizziness, despite reporting five months earlier that Michaels’s “symptoms are 

motion provoked” and “[w]orking on the computer screen exacerbates his symptoms”). 
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WL 31251, at *5. Here, Michaels testified that sitting is not a problem for him, see R. 87, and 

Dr. Winkler testified that Michaels would be able to sit through an 8-hour workday. The record 

also supports a conclusion that Michaels would be able to tolerate a combination of standing and 

walking for approximately two hours, particularly if those activities were performed 

intermittently throughout the day. See, e.g., R. 40 (Dr. Winkler testifying that Michaels would 

be able to walk “within the context of an office job”); R. 81 (Michaels testifying that he leaves 

home to walk and perform walking exercises at the gym, and that he walks a mile at a time about 

three times a week); R. 88 (Michaels testifying that “[s]tanding is fine . . . as long as I can lean 

on something . . . to add some stability”). In addition, Dr. Winkler concluded that the 

appropriate occupational setting for Michaels would involve a “sedentary level of work.” R. 41. 

Thus, on remand, the ALJ should evaluate Michaels’s ability to perform other sedentary jobs in 

the national economy, considering his computer use limitations. 

IV. Step Five Determination after Remand

 Although we conclude that a remand for further fact-finding at Step Five of the disability 

determination is necessary, we are mindful “of the often painfully slow process by which 

disability determinations are made, and that a remand for further evidentiary proceedings (and 

the possibility of further appeal) could result in substantial, additional delay.” Butts v. Barnhart, 

388 F.3d 377, 387 (2d Cir. 2004) (“Butts I”) (internal quotation marks and citation omitted), 

amended on reh’g in part, 416 F.3d 101 (2d Cir. 2005) (“Butts II”). Here, eight years have 

already passed since Michaels first applied for benefits. This delay was largely occasioned by 

(1) the ALJ’s initial failure to obtain evidence from a medical expert and a vocational expert, 

which required a remand from the Social Security Administration’s Appeals Council, and (2) the 

ALJ’s failure following remand to consider substantial evidence in the record of Michaels’s 

limited ability to use a computer, which now requires a remand from this Court. Accordingly, 

we instruct the district court—as we have done in a similar case requiring a remand for further 

fact-finding as to Step Five—to direct that further proceedings before the ALJ be completed 

within 120 days of the issuance of the district court’s order and, that if the decision is a denial of 

benefits, a final decision of the Commissioner be rendered within 60 days of Michaels’s appeal 

from the ALJ’s decision. See Butts I, 388 F.3d at 387 (finding that a “past delay . . . 

of . . . years” made “a time limit [on further proceedings before the Commissioner] . . . 

imperative”); Butts II, 416 F.3d at 103, 104, 105-06 (imposing 120-day time limit for 

proceedings before the ALJ and 60-day time limit for administrative appeal where the claimant 

“[was] entitled to benefits absent the Commissioner’s providing expert vocational testimony 

about the availability of appropriate jobs” and the delay was unreasonable due to ALJ error). 

“[I]f these deadlines are not observed, a calculation of benefits owed [Michaels] must be made 

immediately.” Butts II, 416 F.3d at 106. 

We have considered the parties’ remaining arguments and find them to be without merit. 

For the foregoing reasons, the judgment of the District Court is VACATED and the case is 

REMANDED to the district court for proceedings consistent with this order. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court