Alford v. Berryhill

Filing 26

ORDER granting 23 Motion to Reverse the Decision of the Commissioner, as corrected by 24 Supplemental Motion; denying 25 Motion to Affirm the Decision of the Commissioner. See attached ruling and order remanding for further proceedings. Signed by Judge Robert N. Chatigny on 9/30/19. (Morgan, Luke)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MELIDA BALVINA ALFORD,
Plaintiff,

:
:
:
:
:
:
:
:
:

v.
ANDREW SAUL,1
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

CASE NO. 3:17-cv-358(RNC)

RULING AND ORDER
Plaintiff brings this action pursuant to section 205(g) of
the Social Security Act, 42 U.S.C. § 405(g), seeking review of
the Commissioner’s final decision denying her application for
disability insurance benefits.

Plaintiff moves for an order

reversing the decision, contending that her waiver of the right
to counsel was not knowingly and intelligently made, the
Administrative Law Judge (“ALJ”) failed to adequately develop the
record, and the ALJ’s findings are not supported by substantial
evidence.

Defendant moves for an order affirming the decision.

After careful consideration of the entire administrative record,
I conclude that the case must be remanded for a number of
reasons, most importantly to enable the Commissioner to more
fully investigate and assess the impact of plaintiff’s chronic
pain on her capacity to work.

1

The Commissioner discounted

Andrew Saul was sworn in as Commissioner of Social Security on
June 17, 2019, and is automatically substituted as the defendant
in this action. See Fed. R. Civ. P. 25(d).

plaintiff’s complaints of chronic pain, even though no medical
provider had ever done so in the lengthy history of plaintiff’s
medical treatment.

And the Commissioner did so in large measure

because plaintiff’s complaints were deemed to be inconsistent
with her attempts to work as a home health aid.

On the existing

record, this appears to be a case in which the Commissioner made
the error of penalizing a claimant for enduring the pain of her
disability in order to earn money to support herself.

See

Woodford v. Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y. 2000).
I. Background
A. Relevant Medical History Prior to Claimed Disability Onset
Plaintiff has an “extremely long and complicated [medical]
history,” R. 371, encompassing numerous ailments.

Primary among

them is an extensive history of back, hip, and leg pain, the
cause of which appears to be a motor vehicle accident in her
youth.2

Stipulation of Facts (ECF No. 23-2) at *1-*2.

The

accident caused a fracture of her right femur, which led to an
inequality in adult leg length of 1-2 centimeters, resulting in
2

On November 17, 2006, plaintiff’s orthopedic surgeon wrote,
“[Sh]e actually had a trauma as a young child with a fracture of
the right femur. . . . She did injure the left hip at the same
time.” R. 375. At a follow-up following her left hip
replacement, the same surgeon wrote, “She had originally injured
the operative left hip as well as the right hip in a [motor
vehicle accident] in the 1970's . . . .” R. 378. Plaintiff was
born on March 31, 1955, and so would have been at least 14 during
the 1970's. Yet another record blames a motor vehicle accident
taking place in 1981. R. 371. The exact genesis of her pain is
therefore unclear.
2

back, hip, and leg joint pain.

R. 378.

At some point following

the accident, plaintiff received an “open reduction internal
fixation with femoral rodding” in her right femur.

R. 371; see

also R. 375 (orthopedic surgeon noting that “[t]he right side is
not arthritic but does have hardware in the femur”), 609
(radiologist noting a “right side fixation plate and femoral
compression screw”).
Plaintiff sought medical attention for her pain on July 24,
2006; a subsequent x-ray was interpreted by a radiologist to show
“severe degenerative disease involving the left hip.”
Stipulation at *1-*2.

As a result, plaintiff underwent a total

left hip replacement on January 16, 2007. Id. at *2.

That

operation “probably exacerbated” her leg length discrepancy to 3
centimeters, leading her orthopedic surgeon, Dr. Peter Boone, to
recommend a lift be added to her right shoe.
had several follow-ups with Dr. Boone in 2007.

R. 378.

Plaintiff

R. 378, 380, 381.

At the last, on July 11, 2007, she reported continued discomfort
while walking.

Stipulation at *2-*3.

Dr. Boone noted that

plaintiff “[wa]s not ready for full time work” but could
“probably do part time clerical work using the cane to help
support her.” Id. at *3.
The next event of note took place in October 2010, when
plaintiff saw Dr. Boone for right hip pain after slipping and
falling while at work in a daycare facility.

3

R. 382.

She

followed up with complaints of pain in December 2010, Stipulation
at *3, and received a cortisone injection at the site of maximum
discomfort in January 2011.

R. 384.

In August 2011, Dr. Boone

noted that plaintiff was continuing to experience discomfort,
particularly “when she is standing for long periods” or when
“lying on her side,” despite her use of extra-strength Vicodin.
R. 385.

At the same time, plaintiff also reported sensitivity

along her right femur.

Stipulation at *3.

Dr. Boone theorized

that she was experiencing “remodeling pain” from the interaction
between her femur and the attached plate, which was “so old that
it has cruciate-headed screws” and “ha[d] remodeled distally to
such an extent that it is almost interosseous.”3

Id.

B. Relevant Medical History After Claimed Disability Onset
On March 5, 2012, plaintiff’s alleged onset date, R. 234,
she fell at work.

She told her surgeon she “slipped on water,

landing on her back” and then fell again, this time landing on
her right knee.

Stipulation at *3-*4.

The surgeon wrote, “She

states that her knee has been buckling. She has been wearing a
knee brace.
problems.”

She has been using a cane and has had a lot of
Id. at *4.

The surgeon ordered an MRI of plaintiff’s

spine, which revealed “L5-S1 degenerative changes[,] . . .
associated central canal stenosis without nerve root
3

An interosseous implant is one that has moved between its host
bone and the adjoining bone–in this case, because the movement
was distal (i.e. away from the center of the body), the knee.
4

compression,” and “[m]oderate facet joint degenerative changes at
L4-5 which have progressed.” Id. at *4.
On June 25, 2012, plaintiff had an initial evaluation with a
pain specialist, Dr. Pardeep Sood.

Id.

Dr. Sood wrote:

She presents with chief complaints of constant low
back pain that radiates down both the legs to the level
of the feet. This is described as sharp pain rated at a
severity of 10/10.
The pain increases with activity,
with bending, twisting as also over the course of the
day. She denies any relieving factors beyond medications.
She denies any associated numbness or weakness.
She also complains of neck pain that goes into both
shoulders and into upper extremities, left more so than
right. This is again described as sharp pain rated at a
severity of 8-9/10. The pain increases with activity and
at other times unpredictably so. She denies any relieving
factors beyond medications that helps her some.
R. 371.
Dr. Sood described Plaintiff’s gait as “antalgic” (i.e.
designed to avoid pain) and noted her limp and use of a cane.
371.

R.

Plaintiff reported a decreased range of motion in her neck,

upper spine, and lower spine, with associated pain in each area.
R. 371.

Because plaintiff “ha[d] failed to respond to

conservative options alone and remain[ed] with high levels of
pain,” Dr. Sood recommended “more aggressive[]” approaches.
371.

R.

On July 16, 2012, plaintiff received a series of

transforaminal injections in her lower back.

Stipulation at *5.

On August 10, 2012, plaintiff had a psychiatric consultation
with a colleague of her orthopedic surgeon, Dr. Isaac Cohen.4
4

Dr. Cohen described plaintiff as having a “history of bilateral
total hip replacement.” R. 390. Based on descriptions from the
5

Stipulation at *5.

He noted that the injections had provided

plaintiff “with a little bit of relief,” but “wore off after
several weeks.”

Plaintiff had “returned to see [the pain

specialist] and he wanted to repeat back injections but she
state[d] that she is not accustomed to having anyone stick a
needle in her body.”

Id.

Dr. Cohen also noted that the pain

specialist had prescribed oxycodone and “ha[d] her out of work.”
R. 449.
On August 24, 2012, noting that the transforaminal
injections had provided a “good response” in the past, Dr. Sood
repeated the procedure in response to “recurrence/increased pain
of late.”

R. 368.

On September 12, 2012, it was noted that

plaintiff again had a “good response” to the injections, which
led to her pain levels being “tolerable for a few weeks.”

He

noted that plaintiff’s prescription medications were “helpful”:
oxycodone (a narcotic “used to relieve moderate to severe
pain”);5 mobic (an anti-inflammatory “used to relieve pain,
tenderness, swelling, and stiffness caused by osteoarthiritis
. . . and rheumatoid arthritis”);6 neurontin (an anti-seizure
radiologist and the doctor who performed plaintiff’s left hip
replacement–both of whom noted surgical implants on the right
femur, but did not mention a total right hip replacement–this
does not appear to be accurate. See R. 375, 609.
5
Oxycodone, Medlineplus.gov, Drugs, Herbs & Supplements,
https://medlineplus.gov/druginfo/meds/a682132.html (last revised
Jan. 15, 2019).
6
Meloxicam, Medlineplus.gov, Drugs, Herbs & Supplements,
https://medlineplus.gov/druginfo/meds/a601242.html (last revised
6

drug often used to treat nerve pain, particularly in people, like
plaintiff, who have diabetes);7 and soma (a muscle relaxant used
to treat pain).8

R. 367.

On November 9, 2012, plaintiff visited

Dr. Sood again, reporting a pain level of 8/10 in her lower back
radiating to her right leg.

Stipulation at *6.

In early-to-mid 2013, plaintiff repeatedly visited an urgent
care facility in Bridgeport, each time seeking help for pain.
Id. at *6-*7.

At the time, she reported that she was seeing a

specialist for a torn rotator cuff, although no records of such a
visit are in the record.

Id. at *7.

The urgent care facility

urged her to visit a primary care physician, rather than rely on
the facility for pain management.

Id. n.8.

The record indicates

that plaintiff had lost her insurance and was thus unable to
continue treatment with Dr. Sood.

R. 410.

On June 27, 2013, plaintiff saw a new pain management
specialist, Dr. Charles Bruce-Tagoe, and was diagnosed with
Chronic Pain Syndrome.

Stipulation at *7.

Dr. Bruce-Tagoe

prescribed various pain medications, and entered into a pain
management contract with plaintiff.9

Id.

Dr. Bruce-Tagoe

July 15, 2016).
7
Gabapentin, Medlineplus.gov, Drugs, Herbs & Supplements,
https://medlineplus.gov/druginfo/meds/a694007.html (last revised
Nov. 15, 2017).
8
Carisoprodol, Medlineplus.gov, Drugs, Herbs & Supplements,
https://medlineplus.gov/druginfo/meds/a682578.html (last revised
Oct. 15, 2018).
9
Pain management contracts are agreements entered into between
patients and doctors prescribing opioid painkillers, given the

7

continued to treat plaintiff for Chronic Pain Syndrome and
continued to provide her with prescriptions for several
Id. at *7-8.10

painkillers while she remained in Connecticut.
Plaintiff moved to Georgia in mid-2014.

R. 93.

2014, a mammogram revealed a “new palpable mass.”
*9.

Id. at *7-8.

In December

Stipulation at

In March 2015, plaintiff went to Grady

Hospital in Atlanta, where she sought primary care as a new
patient.

Id. at 9.

At that time, the following problems were

identified: “symptoms concerning for diabetic neuropathy
including recent onset blurry vision and shoot[ing] pain . . . in
her [lower extremities],” uncontrolled hypertension, and
degenerative joint disease, featuring “chronic complain[t]s of
pain in her lower back.”

R. 507.11

Plaintiff was subsequently

diagnosed with primary open-angle glaucoma in both eyes.

serious potential for addiction. See, e.g., A Standard Pain
Management Contract, N.Y. Times (Mar. 16, 2016),
https://www.nytimes.com/interactive/2016/03/16/health/pain-manage
ment-contract.html.
Plaintiff’s pain management contract does not appear in the
record, which merely states “pain contract to be signed,” R. 471,
although the parties stipulate that the “pain contract was
signed” on June 27, 2013. Stipulation at *7.
10
The record contains no entry by a medical professional
expressing concern about potential abuse of prescribed
medications. See R. 137 (“There is no evidence of any substance
abuse disorder/[drug addiction and alcoholism] issue.”). At one
point, however, plaintiff herself expressed an interest in the
possibility of using medical marijuana in order to discontinue
her reliance on opioids. R. 755.
11
The diagnosis and Stipulation also mention hyperlipidemia, an
abnormally high concentration of fat particles in the blood.

8

Stipulation at *9-*10.

In addition, she was diagnosed with Stage

II breast cancer.
In April 2015, plaintiff began chemotherapy.

Her

oncologist, Dr. Hiba Tamim, sought to refer her to a pain
specialist for “degenerative joint disease with chronic pain
syndrome.”

Id. at *10-*11.

On April 23, 2015, Dr. Tamim noted

that the chemotherapy was aggravating plaintiff’s chronic pain.
Id., at *11.

Plaintiff was unable to afford treatment at the

Emory pain clinic, and could not be seen by the Grady pain clinic
until August.

Id.

In the meantime, Dr. Tamim prescribed a small

number of Percocet tablets for plaintiff “to use sparingly”
during chemotherapy to manage the worst of the pain.

R. 740.

In June 2015, plaintiff was seen by a pain management
specialist, Dr. Justin Ford.12

Stipulation at *12.

He noted

that she reported “low back and right leg pain” rated at a
severity from 5-8 out of 10, which was present about 75% of the
day and night.
oxycodone.

R. 754.

R. 755.

He prescribed a month’s worth of

On June 18, 2015 – the last record available

to the ALJ – Dr. Tamim wrote that plaintiff “reports . . .
12

Dr. Ford noted that plaintiff was first seen by the pain
clinic on May 11, 2015 “for a chief complaint of back pain.” R.
754. The record of that visit is not in the administrative
record. As relayed by Dr. Ford, at that visit, an MRI of the
spine was ordered and plaintiff was directed to begin physical
therapy. R. 754. However, plaintiff informed him that her
insurance provider denied the MRI and directed her to participate
in physical therapy prior to any diagnostics. R. 754.

9

feeling more depressed.
lately.”

R. 760.

She is crying more on a regular basis

Dr. Tamim thought plaintiff’s depression could

be due to “the stress of [breast cancer] treatment” and her
“chronic pain” and referred her to a psychiatrist.

R. 762.

C. Medical History After The ALJ Decision13
On June 25, 2015, Dr. Tamim noted that plaintiff “report[ed]
depression” and “numbness and tingling in her fingers and . . .
toes.”

Stipulation at *13.

At some point between August 26 and

September 30, 2015, plaintiff underwent a lumpectomy to treat her
breast cancer.

Id.

Subsequently, she started a new, six-week

course of radiation therapy.

Id. at *14.

Plaintiff informed Dr.

Tamim that she was experiencing new pain in her right shoulder
and was following up with her pain management clinic and an
orthopedic doctor.

Id.

On March 15, 2016, plaintiff was seen by an eye specialist,
who noted that plaintiff’s glaucoma in both eyes had reached a
“severe stage.”

Id. at *15.

Notes from March 22, 2016 indicate that the pain clinic was
continuing plaintiff’s prescription of 10mgs of Oxycodone three
times a day.

Id.

Dr. Tamim also reported that “she had] been

13

The following medical history was not presented to the ALJ but
was made available to the Appeals Council on Plaintiff’s appeal
of the ALJ decision. See Perez v. Chater, 77 F.3d 41, 45 (2d
Cir. 1996) (“[W]e hold that the new evidence submitted to the
Appeals Council following the ALJ’s decision becomes part of the
administrative record for judicial review when the Appeals
Council denies review of the ALJ’s decision.”).

10

more depressed, crying at times.”

Id.

On July 6, 2016,

Plaintiff reported to Dr. Tamim that she was taking 5 mg of
oxycodone three times a day.

R. 50.

The final medical record

available in the administrative record is from plaintiff’s
follow-up visit with Dr. Tamim on September 6, 2016, at which
time she

reported that she was moving back to Connecticut

following the loss of her son.

Stipulation at *15.

On that

visit, Dr. Tamim recorded a “Pain Score” of 8, marked “HIGH.”

R.

60.
D. Work History
Plaintiff has a Bachelor’s degree in psychology and an
extensive work history in social work and human services.

R. 97.

At the hearing conducted by the ALJ, a vocational expert
testified that plaintiff had worked in the following occupations:
family care worker or case worker (sedentary, skilled); program
director or volunteer services supervisor (light, skilled); child
development center director (sedentary, skilled); case manager
(light, skilled); home health aid (medium, semi-skilled); patient
transporter (medium, unskilled); and dispatcher (sedentary,
skilled).
At the hearing, plaintiff testified that she was currently
working as a home health aid four or five days a week.
She was working either two or four hours a day.

11

R. 97.

R. 96 (“I only

work sometimes.

I would work four hours a day, nine – at $9.”),

R. 97 (“I have to work two hours a day.”).

Plaintiff described

the work in terms of her duties to clients: she had to “dress
them, shave them, go to the store for them . . . ma[k]e sure they
had their medicine. . . . [and] clean their homes.”

R. 92.

She

made clients’ beds daily, R. 105, and bathed them, R. 92, but
could not lift them, R. 105.
pain at night.”

The work left her “in excruciating

R. 106.

E. The ALJ Decision
The ALJ concluded that plaintiff was insured for purposes of
Title II of the Social Security Act through September 30, 2019.
R. 67.

Attempting to parse plaintiff’s employment record, the

ALJ gave her “the benefit of the doubt.”

R. 68.

Thus, although

the ALJ found that plaintiff was engaged in substantial gainful
activity in the third quarter of 2012, the third quarter of 2013,
and the second, third, and fourth quarters of 2014, the ALJ
nonetheless concluded that there was a continuous 12-month period
in which plaintiff did not engage in substantial gainful
activity.

R. 68.

The ALJ concluded that plaintiff suffered from “severe
impairments” of degenerative disc disease and breast cancer grade
II, and non-severe impairments of “hypertension, diabetes
mellitus, glaucoma, osteoporosis, [and] history of reconstructive
hip surgery.”

R.68.

The ALJ also found that plaintiff’s

12

reported depression was “secondary” to the breast cancer
diagnosis, and not a “medically determinable mental impairment.”
R. 69.

The ALJ concluded that none of plaintiff’s impairments,

nor any combination of them, met or equaled in severity a “Listed
Impairment” that would entitle her to a per se finding of
disability.

R. 69-70.

As to whether plaintiff was disabled, the ALJ wrote:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except the claimant is
able to lift and carry up to 20 pounds occasionally and
10 pounds frequently; she is able to stand and walk four
hours, and sit six hours, in an eight-hour workday with
normal breaks; she is able to occasionally climb ramps
and stairs but should never climb ladders, ropes, or
scaffolds; she is able to occasionally balance, stoop,
kneel, crouch, and crawl; she is able to occasionally
operate left foot controls; she is able to frequently
reach overhead with the right arm; and she requires the
use of a cane to ambulate to and from the workstation and
traverse uneven surfaces; and she will be off task up to,
but not more than, 10 percent due to pain.
R. 70.
The ALJ further concluded that plaintiff was “capable of
performing past relevant work as a case manager . . . case worker
. . . program director of volunteer service . . . child
development center director . . . and dispatcher.”

R. 74.

Given

this conclusion, plaintiff could not be considered disabled
within the meaning of the Act and her application for benefits
was therefore denied.

R. 74-75.

13

II. Legal Standard
Under the Social Security Act, a person is disabled if 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).

The Act is a

“remedial statute, to be broadly construed and liberally
applied.”

Gold v. Sec’y of Health, Educ. & Welfare, 463 F.2d 38,

41 (2d Cir. 1972) (quoting Haberman v. Finch, 418 F.2d 664, 667
(2d Cir. 1969)).
A disability determination under the Act proceeds in five
steps.

First, the Commissioner considers whether the claimant is

currently engaged in substantial gainful activity.

If not, the

Commissioner determines whether the claimant has a “severe
medically determinable physical or mental impairment” that limits
the claimant’s ability to do basic work activities.

If so, the

Commissioner asks whether the impairment meets, or equals in
severity, a so-called “listed impairment,” contained in Appendix
1 to Subpart P of 20 C.F.R. § 404.

If so, provided the claimant

meets the Appendix’s durational requirements, the Commissioner
will find that the claimant is disabled.

If not,

the

Commissioner determines whether, despite the impairment, the
claimant retains the “residual functional capacity” (“RFC”) to

14

perform his or her past work.

Finally, if the claimant does not

have the RFC to perform his or her past work, the Commissioner
determines whether there is other work in the national economy
that the claimant is capable of performing.14

Until the final

step, the claimant bears the burden of proof, but if the analysis
reaches the fifth stage, the burden shifts to the Commissioner.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
In reviewing a final decision of the Commissioner, a
district court “perform[s] an appellate function.”
Califano, 651 F.2d 842, 844 (2d Cir. 1981).

Zambrana v.

The court’s role is

limited to determining (1) whether the decision comports with
applicable law and (2) whether it is supported by substantial
evidence.

Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).

If a decision is free of legal error, the findings of the
Commissioner as to any fact, “if supported by substantial
evidence, [are] conclusive.”

42 U.S.C. § 405(g).

The findings

must be supported by “more than a mere scintilla or a touch of
proof here and there in the record,” but require only “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”

Williams v. Bowen, 859 F.2d 255, 258

(2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)).
14

In this case, the ALJ did not make a finding as to step five.
Stipulation at *18.

15

III. Discussion
Plaintiff moves to reverse the Commissioner’s decision on
the grounds that (1) her waiver of the right to representation
was not knowingly and intelligently made; (2) the ALJ failed to
develop the administrative record; (3) her claims of pain were
inadequately evaluated; and (4) the ALJ’s vocational analysis is
flawed.

I agree that plaintiff did not knowingly and

intelligently waive her right to counsel and that prejudice
resulted from her lack of representation.

Wholly apart from the

waiver issue, I conclude that a remand is necessary primarily
because the ALJ did not fully develop the record as to the
severity and impact of plaintiff’s chronic pain and glaucoma,
which may well limit her ability to perform her past work.
A. Waiver of Right to Representation
“Although a claimant does not have a constitutional right to
counsel at a social security disability hearing, she does have a
statutory and regulatory right to be represented should she
choose to obtain counsel.”

Lamay v. Comm’r of Social Sec., 562

F.3d 503, 507 (2d Cir. 2009) (citing 42 U.S.C. § 406; 20 C.F.R.
§ 404.1705).

The statute and regulations require the

Commissioner to “notify the claimant in writing of (1) her
options for obtaining an attorney to represent her at her
hearing, and (2) the availability . . . of . . . organizations
which provide legal services free of charge to qualifying

16

claimants.”

Id. (internal quotations and alterations omitted).

The ALJ must also ensure at the hearing that the claimant is
aware of her right to representation.

Id. (quoting Robinson v.

Sec’y of Health & Human Servs., 733 F.2d 255, 257 (2d Cir.
1984)).

The right to representation is subject to waiver.

Id.

Critically, the law of this Circuit requires the
Commissioner to inform a claimant of the right to be represented
by a lawyer.

Lamay, for instance, speaks of the claimant’s right

to representation by “counsel” and indicates that the Act and
regulations require notification of options “for obtaining an
attorney” as well as the availability of organizations providing
“legal services.”

Id.; see also Robinson, 733 F.2d at 257 (“The

claimant is entitled to be represented by counsel at the hearing
and the ALJ must ensure that the claimant is aware of this
right.”) (emphasis added).

Accordingly, in this Circuit,

notifications that inform claimants of the right to
“representation” or to a “representative” without making clear
that the representative can be a lawyer are deemed inadequate.
E.g., Petrovich v. Colvin, No. 3:15-cv-00575 (AVC), ECF No. 27,
at *50 (D. Conn. Aug. 14, 2017); Sheerinzada v. Colvin, 4 F.
Supp. 3d 481, 495-96 (E.D.N.Y. 2014); Holliday v. Astrue, No. 05cv-1826(DLI)(VVP), 2009 WL 1292707, at *10-*11 (E.D.N.Y. May 5,
2009).

17

1. Factual Background
After filing her initial request for a hearing before an
ALJ, plaintiff received a letter from the Office of Disability
Adjudication and Review in New Haven.

The letter mentioned a

“Right to Representation” but did not mention a right to legal
counsel.

R. 180.

The letter was accompanied by a pamphlet

titled “Your Right to Representation,” R. 183-84, which did
explain the right to representation by a lawyer.

The letter also

contained an “Important Notice About Representation,” which
included contact information for the National Organization of
Social Security Claimant Representatives and a variety of legal
aid organizations in Connecticut (and, for reasons that are not
clear, Ohio).

R. 185-88.

Plaintiff subsequently received a written reminder about her
hearing, which stated she could seek “help” from a
“representative” without mentioning the possibility the
representative could be a lawyer.

R. 194.

This correspondence

also contained the same pamphlet referencing the right to
representation by counsel.

R. 198-99.

It did not contain

contact information for any lawyers or legal services
organizations.
On August 15, 2014, the Covington, Georgia Office of
Disability Adjudication and Review acknowledged the transfer of
plaintiff’s claim.

R. 210.

The Covington office sent plaintiff

18

a letter like the one sent to her initially, which did not
mention the right to a lawyer.

Compare R. 180 with R. 211.

As

before, this letter was accompanied by the pamphlet, “Your Right
to Representation.” R. 214-15.
Of considerable importance to the efficacy of the waiver in
this case, the letter transmitted by the Covington also contained
an “Important Notice About Representation” similar to the one
initially provided in Connecticut.

But there is a key difference

between the two: rather than providing contact information for
national or Georgia-based legal services organizations, this
“Important Notice” contained a series of blanks.

The form

states: “If you want an attorney to help you, you may contact the
organization(s) listed below.”

No organizations are listed.

It

continues: “If you cannot pay for legal representation and you
think you might qualify for free legal help, you may contact the
organization(s) listed below.”
listed.

Again no organizations are

It then states: “If you want someone who is not an

attorney to help you, you may contact the organization(s) listed
below.”

As before, no organizations are listed.

Another reminder letter followed.

R. 216.

The letter did not

mention the right to be represented by a lawyer.

The pamphlet

entitled “Your Right to Representation” was enclosed.

19

R. 217-27.

On the morning of the hearing, plaintiff completed a “Waiver
of Right to Representation,” which at several points mentions the
possibility of representation by an attorney.

R. 231.

Plaintiff

takes issue with the form’s statement that “[s]everal of these
[legal service] organizations were named in the information
previously sent to you after you requested this hearing.”

As

just discussed, no names of organizations had been provided by
the Covington office.
At the hearing, the ALJ sought to confirm that plaintiff was
knowingly waiving her right to representation.

The discussion

proceeded as follows:
ALJ: As you’re not represented, I need to ensure, on the
record, that you understand that you have the right
to representation.

A representative may not charge

you a fee, unless we approve it.
the

hearing

letter

enclosures,

Did you receive
and

did

you

understand the information contained therein?
CLMT: Uh-huh.
ALJ: Okay.

Yes.

I – I — we went through it briefly.

I just have to ensure, on the record, --

CLMT: Uh-huh
ALJ: – and that you understand that you have a right to
representation –
CLMT: Yes.

20

ALJ: – by an attorney or non-attorney.

I also have

here, in front of me, where you have signed a
waiver of representation form, indicating that you
would like to proceed today without representation.
Is that correct?
CLMT: Yes.
HR: (Indicating.)
ALJ: Thank you.

You’ve indicated, on the record, you’d

like to proceed without representation, and we will
do so.
R. 84-85.
Plaintiff alleges that this “passing reference” to an
attorney was inadequate, especially in light of the “Important
Notice About Representation” she had received from the Covington
office, R. 216, which contained no names of legal service
providers.

The Commissioner responds that the ALJ’s colloquy

with plaintiff was sufficient and plaintiff could have contacted
organizations from the list she received in Connecticut or other
providers.
2. Analysis
I. Pre-Hearing Notices
The Commissioner is required to “notify the claimant in
writing of (1) her options for obtaining an attorney to represent

21

her at her hearing, and (2) the availability of organizations
which provide legal services free of charge to qualifying
claimants.”

Lamay, 562 F.3d at 507 (internal quotations and

alterations omitted).

I find that, in sending plaintiff the

“Important Notice About Representation,” the Covington office did
not fulfill the latter step.

Plaintiff could read this

“Important Notice” to mean that no legal service providers were
available to assist her.

The statements, “If you want an

attorney to help you, you may contact the organization(s) listed
below,” and “If you cannot pay for legal representation and you
think you might qualify for free legal help, you may contact the
organization(s) listed below,” followed by blanks in both
instances, certainly give that impression.
The problem created by the blanks in the form was compounded
by the written waiver plaintiff signed on the morning of the
hearing, which referred back to the information provided – or, in
this case, not provided – in the “Important Notice About
Representation.

The waiver reads:

If not represented now, you should understand that you
have the right to seek to be represented, at your own
expense, at your hearing. If you cannot afford an
attorney or other representative, there are some
organizations which may provide representation at no cost
to you. Several of these organizations were named in the
information previously sent to you after you requested
this hearing.
R. 231.

22

The effect of this language was to reinforce the implication
of the “Important Notice” that there were no legal aid
organizations available to help.

A reasonable claimant could

conclude that if legal aid organizations were available, they
would be listed in the “Important Notice.”
The Commissioner’s answer – that plaintiff could have
contacted an organization on the list she received in Connecticut
– is insufficient.

The list of primarily Connecticut- and Ohio-

based organizations provided to plaintiff in Connecticut was sent
on September 27, 2013.

R. 180.

Plaintiff’s hearing took place

more than a year later, on December 23, 2014, approximately 800
miles from Connecticut.
different hearing.

It was, for all intents and purposes, a

The Commissioner should have sent a new list,

as the Covington office seems to have recognized.

The presence

of one or two national organizations on the Connecticut list does
not change this analysis – the names of those organizations
should have been provided by the Covington office prior to the
hearing.
It is no more responsive to suggest that plaintiff could
have contacted a legal organization of her own choosing, based on
her own research.

The Commissioner has the responsibility to

“notify the claimant in writing of . . . the availability . . .
of . . . organizations which provide legal services free of

23

charge to qualifying claimants” prior to her hearing.

Lamay,

562 F.3d at 507 (internal quotations and alterations omitted).
That did not happen here.

See Petrovich, No. 3:15-cv-00575

(AVC), ECF No. 27, at *44 (noting failure of Commissioner to
provide a list of organizations, although deciding on other
grounds).
ii.

Hearing Notice

The hearing transcript provides no assurance that plaintiff
knowingly waived her right to counsel.

When asked whether she

had received “the hearing letter enclosures” and whether she
understood the information they contained, plaintiff responded
“we went through it briefly.”

R. 84-85.

in itself support a valid waiver.

That response does not

Several follow-up questions

were in order: who was the “we” plaintiff referred to, why did
plaintiff respond with the singular “it” when asked about plural
“enclosures,” and how “brief” was her review?

In a typical case,

when a claimant has been given names of legal service providers,
a waiver obtained by an ALJ might withstand judicial review if
the transcript shows that the ALJ confirmed the claimant’s
understanding of the right to representation “by an attorney or
non-attorney,” as happened here.

R. 84-85.

But the “Important

Notice About Representation” plaintiff received from the
Covington office made it appear as if nobody was available to
assist her.

In this circumstance, the ALJ’s colloquy was

24

insufficient to confirm that plaintiff understood the
availability of free legal services.

Compare with Rutkowsky v.

Astrue, 368 Fed. App’x 226, 229 (2d Cir. 2010) (holding that,
where the “ALJ verbally told [claimant] of his right to
representation and the availability of free legal services during
the initial and supplemental hearings,” claimant had knowingly
waived his right to representation).

See also Collado v. Astrue,

No. 05-cv-3337 (KMK)(LMS), 2009 WL 2778664, at *10 (S.D.N.Y. Aug.
31, 2009) (“Under the Lamay standard, an ALJ need[s to] . . .
ensure . . . (2) that the notification provided to the clamant
adequately informed the claimant of the availability of free
legal services to assist him or her with the administrative
review process . . . .”).
Moreover, the transcript provides no assurance that
plaintiff voluntarily waived her right to representation.

The

ALJ did not clearly state that if plaintiff chose to seek
representation, the hearing would be postponed at no penalty to
her.

Compare with Lamay, 562 F.3d at 509 (noting that ALJ told

claimant that “she could ‘either . . . have a postponement of the
hearing and get a lawyer or . . . [go] forward with the hearing
today” and that claimant confirmed twice that “she preferred to
proceed, alone, immediately”) (alteration in original).

This is

a particular problem in this case due to plaintiff’s condition at

25

the hearing.

During the hearing, plaintiff testified that she

was having difficulty maintaining concentration and “f[ound]
herself drifting” occasionally.

R. 110.

She was taking several

medications, one of which she was unable to name until the ALJ
corrected her, and one of which is a high-strength opioid.
99.

R.98-

Under these circumstances, the ALJ’s heightened duty to

“scrupulously and conscientiously probe into, inquire of, and
explore all the relevant facts surrounding” plaintiff’s waiver
required more than the brief exchange that took place.

See Mimms

v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984); see also Petrovich,
No. 15-cv-00575 (AVC), ECF No. 27, at *47-48 (holding that ALJ’s
notice to claimant of right to counsel at hearing was inadequate
in part due to claimant’s educational background, testimony at
hearing, and medications).
In the circumstances presented by this case, I conclude that
the record is insufficient to support a finding that plaintiff
knowingly and voluntarily waived her right to counsel.

It does

not automatically follow that a remand is required, however.
Remand is proper only when lack of counsel results in unfairness
or prejudice to the claimant.
52-53 (S.D.N.Y. 1989).

Alvarez v. Bowen, 704 F. Supp. 49,

In this case, I conclude that plaintiff

was prejudiced by the lack of representation.

Competent counsel

could be expected to assist the ALJ in adequately developing the

26

record with regard to key issues.

As discussed below, the record

is not adequately developed.
B. Failure to Adequately Develop the Record & Lack of Substantial
Evidence for Certain Findings
Whether the administrative record has been adequately
developed is “a threshold question” and, accordingly, before
determining whether the ALJ’s decision is supported by
substantial evidence, “the court must first be satisfied that the
ALJ provided plaintiff with ‘a full hearing under the Secretary’s
regulations’ and also fully and completely developed the
administrative record.”

Craig v. Comm’r of Social Sec., 218 F.

Supp. 3d 249, 261 (S.D.N.Y. 2016) (quoting Scott v. Astrue, No.
09-cv-3999 (KAM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9,
2010)); see also Rodriguez v. Barnhart, No. 09-cv-5782 (FB), 2003
WL 22709204, at *3 (E.D.N.Y. Nov. 7, 2003) (“The responsibility
of an ALJ to fully develop the record is a bedrock principle of
Social Security law.”).

The ALJ’s duty to develop the record is

undertaken “on behalf of” the claimant, “in light of the
essentially non-adversarial nature of a benefits proceeding.”
Craig, 218 F. Supp. 3d at 261.

When the claimant is proceeding

without counsel, the ALJ’s duty is “heightened.”

Moran v.

Astrue, 569 F.3d 108, 113 (2d Cir. 2009) (quoting Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).

27

When evaluating a pro se claimant’s application, an ALJ must
“ensur[e] all of the relevant facts are sufficiently developed
and considered” by “scrupulously and conscientiously prob[ing]
into, inquir[ing] of, and explor[ing] for all the relevant
facts.”

Cruz, 912 F.2d at 11.

It is a reviewing court’s “duty

to make a ‘searching investigation’ of the record” to ensure a
pro se claimant’s rights have been adequately protected.

Gold,

463 F.2d at 43 (quoting Miracle v. Celebrezze, 351 F.2d 361, 383
(6th Cir. 1965)).
The applicable regulations require that the Commissioner
“develop [claimant’s] complete medical history for at least the
12 months preceding the month in which [claimant] files [his or
her] application.”

20 C.F.R. § 404.1512(b)(1).

The Commissioner

must “make every reasonable effort” to obtain medical evidence
from the claimant’s medical sources, including at least an
initial request for medical evidence and a follow-up.
§ 404.1512(b)(1)(I).

Id.

The ALJ’s responsibility also includes “the

duty to question the claimant adequately about any subjective
complaints and the impact of the claimant’s impairments on the
claimant’s functional capacity.”

Craig, 218 F. Supp. 3d at 261

(quoting Pena v. Astrue, No. 07-cv-11099 (GWG), 2008 WL 5111317,
at *8 (S.D.N.Y. Dec. 3, 2008)).

In some circumstances, the duty

to develop the record may include a duty to order that the
claimant undergo additional examinations or diagnostic testing,

28

if doing so is necessary for the ALJ to “resolve a conflict or
ambiguity in the record.”
401 (W.D.N.Y. 2014).

Phelps v. Colvin, 20 F. Supp. 3d 392,

Failure to obtain an examination necessary

to an informed decision is error.

Falcon v. Apfel, 88 F. Supp.

2d 87, 90-91 (W.D.N.Y. 2000).
An ALJ’s ultimate conclusions might not change following
adequate development of the record.

Even so, a plaintiff is

always entitled to a decision based on a fully developed record.
See Lilley v. Berryhill, 307 F. Supp. 3d 157, 159-60 (W.D.N.Y.
2018) (“[W]here the record is not otherwise complete . . . the
ALJ’s duty to further develop the record is triggered, and the
ALJ’s failure to satisfy that duty is reversible error.”); Ubiles
v. Astrue, No. 11-cv-6340T (MAT), 2012 WL 2572772, at *10
(W.D.N.Y. July 2, 2012) (“The failure to develop the record
cannot be harmless error [where] the ALJ relied on perceived gaps
in the medical evidence to find Plaintiff not disabled.”).
Here, the ALJ went to some length to develop the record.
R. 85.

Nonetheless, there remain significant gaps in the record

that need to be addressed.

Moreover, while it is within the

ALJ’s discretion to “determine the best way to resolve [an]
inconsistency or insufficiency,” inconsistencies or
insufficiencies must be resolved in order to ensure the decision
is based on substantial evidence.

29

Hunter v. Berryhill, 373 F.

Supp. 3d 393, 398 (E.D.N.Y. 2019).

In this case, insufficiencies

in the record prejudiced plaintiff’s claim.
1. Plaintiff’s Chronic Pain
The crux of plaintiff’s claim is that she has “chronic,
intractable pain in part resulting from her back, shoulder,
bilateral hip and knee conditions, conditions so severe as to
require her to take Oxycodone three times a day.”
at *15-16.

Plf.’s Mem.,

Giving full and fair consideration to a claimant’s

pain remains a challenge in disability benefits cases because
pain does not necessarily manifest in objectively measurable
ways.

To avoid unwarranted awards of disability benefits,

“statements about [a claimant’s] pain or other symptoms will not
alone establish that [the claimant is] disabled.” 20 C.F.R.
§ 404.1529.

Instead, “there must be objective medical evidence”

indicating the existence of “a medical impairment[] which could
reasonably be expected to produce the pain.”

Id.

The regulation’s requirement of “objective medical evidence”
to establish the source of a claimant’s pain does not mean that
subjective complaints of pain cannot support a finding of
disability.

The Second Circuit, interpreting essentially

identical regulatory language in 2003, cautioned that, “[a]s a
general matter, ‘objective’ findings are not required in order to
show that an applicant is disabled.”
335 F.3d 99, 108 (2d Cir. 2003).

30

Green-Younger v. Barnhart,

Thus, a claimant may be

disabled within the meaning of the Act by pain alone, but
objective evidence must establish a cause for the pain.

See

Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991)
(“[Congress] recognized that pain may be disabling and that
individuals truly suffering from disabling pain are entitled to
disability benefits.”); cf. 20 C.F.R. § 404.1529(c)(3)
(“[S]ymptoms sometimes suggest a greater severity of impairment
than can be shown by objective medical evidence alone. . . .”).
The Commissioner has assured claimants that in making a
determination about the effect of pain on the individual’s
ability to work, the agency
will consider your statements about the intensity,
persistence, and limiting effects of your symptoms, and
we will evaluate your statements in relation to the
objective medical evidence and other evidence, in
reaching a conclusion as to whether you are disabled. We
will consider whether there are any inconsistencies in
the evidence and the extent to which there are any
conflicts between your statements and the rest of the
evidence, including your history, the signs and
laboratory findings, and statements by your medical
sources or other persons about how your symptoms affect
you. Your symptoms, including pain, will be determined to
diminish your capacity for basic work activities to the
extent that your alleged functional limitations and
restrictions due to symptoms, such as pain, can
reasonably be accepted as consistent with the objective
medical evidence and other evidence.
Id. at (c)(4).
I conclude that in this case, despite the ALJ’s efforts, the
record has not been adequately developed with regard to
plaintiff’s chronic pain and, consequently, the ALJ’s findings as

31

to the credibility of plaintiff’s subjective complaints are not
supported by substantial evidence.
I. Inadequacies In The Record
The record shows that plaintiff suffered a torn rotator cuff
at some point in 2012 or 2013.

Stipulation at *7.

Plaintiff

testified that she was involved in litigation regarding her
shoulders, R. 95, had an operation on her left shoulder, R. 101,
and was newly experiencing right shoulder pain.

R. 101.

She

rated the pain in her right shoulder at six, and testified that
medication had no effect on the level of pain.

R. 103.15

pain in her left shoulder was “about a three.”

R. 103.

The
The

record shows that plaintiff reported her right shoulder pain to
her oncologist, who reported that plaintiff was following up with
a pain clinic and orthopedic doctor.

R. 36.

Apart from the foregoing, there is no evidence relating to
plaintiff’s torn rotator cuff or the pain in her shoulders.

The

record is therefore insufficiently developed with regard to these
matters, and the ALJ did not remedy this insufficiency at the
hearing.

See Craig, 218 F. Supp. 3d at 261 (noting that ALJ’s

duty to develop the record includes the duty to adequately
question the claimant at the hearing).
15

The lack of adequate

Plaintiff started to say something else about her right
shoulder pain but was interrupted. R. 103. See Losco v.
Heckler,604 F. Supp. 1014, 1020 (S.D.N.Y. 1985) (remanding where
ALJ’s questioning was cursory and lacked necessary follow-ups and
where ALJ appeared to deliberately avoid a line of questioning).

32

development of the record in this regard is potentially
significant to the disability determination.

Plaintiff’s ability

to use her shoulders and arms goes directly to the ALJ’s residual
functional capacity assessment.

See R. 70.

The ALJ discounted a

treating physician’s opinion that plaintiff could lift no more
than five pounds based on plaintiff’s subsequent medium-exertion
work, R.72, and determined that plaintiff could lift 20 pounds
occasionally.

R. 70.

But the ALJ did so without mentioning

plaintiff’s shoulder impairments.

A remand is therefore

necessary to permit the record to be adequately developed.
Also absent from the record is a medical source statement
concerning plaintiff’s physical limitations.

The ALJ examined

the opinions of treating physicians from “at or around the time
the claimant was injured at work and when she was beginning
chemotherapy,” R. 73, as well as an April 2015 opinion from
plaintiff’s oncologist, R. 74.

Those statements indicated that

plaintiff should remain out of work or engage in only sedentary
work.

R. 73-74.16

The statements were discounted because

16

Dr. Tamim suggested that Plaintiff was able to perform light
or sedentary work. R. 16, 19, 22, 28, 34, 37, 40, 43, 46, 49.
The ALJ at one point appears to acknowledge that Dr. Tamim’s
opinion is only probative of the effect of Plaintiff’s cancer and
cancer treatment on her ability to work, not her overall ability
to work. See R. 72-73 (“The claimant’s attending oncologist
noted the claimant was capable of performing sedentary to light
work. As such, it does not appear that the claimant is
significantly limited by her breast cancer or required
treatment.”).
I agree with the Commissioner that the medical evidence does

33

plaintiff engaged in medium-exertion employment after they were
made.

R. 73-74.

However, without further development of the

record, plaintiff’s attempts to maintain employment do not
provide substantial evidence to support the ALJ’s decision.
Plaintiff suffers from degenerative disc disease.

R. 68.

Her

treating physicians repeatedly held her out of work or said she
could engage only in sedentary work.

It is entirely plausible

that her medium-exertion work – i.e. physical activity well
outside the range recommended by her physicians – exacerbated her
impairments.

She testified, after all, that they caused her

excruciating pain.

R. 106.

That she managed to endure this pain

does not support a finding that she is capable of doing a greater
range of work than her treating physicians thought she was
capable of doing.

The record as it stands does not provide “the

overwhelmingly compelling type of critique that would permit the
Commissioner to overcome an otherwise valid medical opinion.”
Burgess v. Astrue, 537 F.3d 117, 130 (2d Cir. 2008) (quoting Shaw
v. Chater, 221 F.3d 126, 135 (2d Cir. 2000)).

not indicate that Plaintiff’s breast cancer or the treatment
thereof pose a significant restriction on her ability to work,
but I do not read Dr. Tamim to offer any opinion as to the effect
of Plaintiff’s degenerative disc disease, chronic pain, glaucoma,
or various back, hip, and leg ailments on her ability to work.
See R. 51 (statement of Dr. Tamim suggesting that Plaintiff’s
performance status was “fully active” and that Plaintiff was
“able to carry on all predisease activities without
restrictions”).

34

Degenerative disc disease, for the most part, only gets
worse, and treatment revolves around the management of pain
rather than “curing” the natural and inevitable underlying
cause.17

The treating physicians’ opinions as to the severity of

plaintiff’s disease and its impact on her ability to work are
from 2012 and 2013.

R. 73-74.

The record indicates that

plaintiff’s treating pain management specialist in 2015 believed
it was necessary to obtain an MRI of plaintiff’s spine and
therefore ordered one, but her insurance provider refused to
cover it.

R. 754.

As a result, it appears that the last MRI

plaintiff had of her back was in mid-2012, Stipulation at *4, or
at least that this MRI is the last one on which a medical opinion
in the record was formed.
In light of the nature of plaintiff’s impairment, her
testimony as to the severity of her lower back pain, and the lack
of medical evidence in the record covering the entirety of her
claimed disability period, the Commissioner is required to
request: (1) additional diagnostic testing of plaintiff’s lower
back, and (2) a medical source opinion from a treating physician
who has examined plaintiff’s back more recently than 2012-2013,
preferably one who has the benefit of diagnostic imaging.

See

Parker v. Callahan, 31 F. Supp. 2d 74, 78 n.10 (D. Conn. 1998)
17

See Osteoarthritis, Merck Manual of Diagnosis & Therapy (20th
ed. 2018), at 302.

35

(“Courts have required ALJs to order x-rays to ensure development
of a full and fair administrative record, but only when x-rays
are entirely absent or have not been taken for a long period of
time.”), id. (collecting cases where courts have faulted the
Commissioner for failing to order diagnostic testing).

Without

this medical evidence, the ALJ’s findings as to the credibility
of plaintiff’s complaints of pain are based on an inadequate
record.

See Rivera-Cruz v. Berryhill, No. 16-cv-2060 (RNC), 2018

WL 4693953, at *8 (D. Conn. Sept. 30, 2018) (“[B]ecause the ALJ
failed to properly apply the treating physician rule, ‘the
credibility evaluation is necessarily flawed.’”) (quoting Mortise
v. Astrue, 713 F. Supp. 2d 111, 124) (N.D.N.Y. 2010)).
ii. Lack of Substantial Evidence To Support Adverse
Credibility Findings
Plaintiff has testified that her daily life is complicated
by significant and sometimes excruciating pain.

The ALJ

discredited this claim on the basis of various pieces of
evidence.

Taken collectively, these pieces of evidence are

insufficient to support the ALJ’s adverse credibility finding.
While an ALJ “is not required to explicitly analyze every piece
of conflicting evidence in the record,” she may not “‘pick and
choose’ evidence in the record that supports [her] conclusions.”
Stacy D. v. Comm’r of Soc. Security, 358 F. Supp. 3d 197, 202

36

(N.D.N.Y. 2019) (quoting Cruz v. Barnhart, 343 F. Supp. 2d 218,
224 (S.D.N.Y. 2004)).18
The pieces of evidence cited by the ALJ do not impeach
plaintiff’s testimony.

For instance, the ALJ notes that

“[plaintiff] was noted to be asymptomatic in March 2014,” R. 72,
referring to a report by Dr. Bruce-Tagoe.

Dr. Bruce-Tagoe’s

report does state that, with respect to plaintiff’s “Chronic
Pain,” she was “currently asymptomatic.”

R. 459.

But, in the

same visit, Dr. Bruce-Tagoe’s analysis of plaintiff’s
musculoskeletal system notes that “[j]oints, bones, and muscles”
were “[a]bnormal,” and specifically mentions “[t]enderness over
lower back.”

R. 461.

Moreover, Dr. Bruce-Tagoe’s assessment

reiterated the diagnosis of Chronic Pain Syndrome, contained a
“Plan” for the treatment of “Lower Back Pain,” and wrote
plaintiff a new prescription for Metaxalone, a painkiller.19
461.

R.

The record also indicates that plaintiff’s oxycodone

18

In a case like this one, involving an “extremely long and
complicated [medical] history,” as Dr. Sood put it in June 2012
(prior to plaintiff’s diagnoses for breast cancer, glaucoma,
chronic pain syndrome, and her treatment for depression), R. 371,
anyone looking through the record is likely to be able to find
some evidence that could be used, when taken out of context, to
try to impeach a claimant’s subjective complaints of pain. Given
the non-adversarial nature of an administrative proceeding under
the Act, and the Act’s remedial purpose, an adjudicator must
avoid giving too much weight to pieces of evidence that do not
support an adverse credibility determination in light of the
record viewed as a whole.
19
Metaxalone, Medlineplus.gov, Drugs, Herbs & Supplements,
https://medlineplus.gov/druginfo/meds/a682010.html (last revised
Oct. 15, 2018).

37

prescription had been re-issued just ten days before.

R.460.

In

light of these much more specific descriptions of plaintiff’s
pain, and the decision by her treating physician to prescribe
additional painkillers, there is not substantial evidence to find
that plaintiff was actually pain-free.
The ALJ also found that “[t]he evidence demonstrates that
claimant sought no more than conservative care to manage her
reported back pain, which tends to undermine the claimant’s
assertion that pain is significantly limiting.”

R. 72.

The ALJ

cited Exhibit 1F, the records from plaintiff’s first pain
specialist in Connecticut.

The same exhibit states: “[Plaintiff]

has failed to respond to conservative options alone and remains
with high levels of pain.

Under the circumstances, further

options were discussed. . . I would consider interventional
approaches potentially starting with lumbar transforaminal
injections first.

In the interim, medical management options

were discussed and would be pursued a bit more aggressively.”
373.

Plaintiff subsequently received at least two rounds of

R.

transforaminal injections, even though she expressed discomfort
with the procedure.

Stipulation at *5, 6.

She was unable to

continue seeing the doctor due to insurance issues, R. 410, and
the injections provided only temporary relief.
*5,6.

Stipulation at

Accordingly, there is not substantial evidence in the

38

record to support the finding that “claimant sought no more than
conservative care to manage her reported back pain.”
No factor seems to have influenced the ALJ’s decision more
than plaintiff’s ongoing attempts to maintain employment, which
the ALJ repeatedly described as undermining her credibility as to
her pain.

R. 71-74.

I think the ALJ erred in this regard.

For instance, the ALJ concluded that plaintiff’s work
pushing wheelchairs in an airport “undermines her assertion that
she is unable to walk for more than 10 minutes or that she
requires the use of an assistive device for ambulation.”20
73.

R.

But plaintiff’s express testimony to the ALJ was that she

“did wheelchair, and it was too much for me.”

R. 91.

The ALJ

then asked whether the wheelchair job required walking “most of
the time,” to which plaintiff responded, “I was walking, and I
had two hip replacements,” presumably to indicate that the
walking presented a difficulty.

R. 91-92.

Later, when asked how

long she could “stand to walk,” plaintiff responded, “I can walk
maybe . . . a good 10 minutes and then I have to sit down.
was a problem . . . with the wheelchair thing.”

R. 106-07.

That
On

this record, plaintiff’s assertion that she is capable of about
ten minutes of walking (with the aid of her cane) seems wholly
credible.
20

Plaintiff correctly notes that a wheelchair, like a shopping
cart, effectively functions as an assistive device for ambulation
to the one pushing it. Plf.’s Mem., at *18.

39

Similarly, both the ALJ and the Commissioner’s brief rely
heavily on the fact that the claimant “alleges that she is
limited in her daily activities due to pain” yet “testified that
she works as a home health aide and performs cleaning and other
chores for her clients.”

R. 73; see also Def.’s Mem., at *5.

As

the ALJ put it, “[t]he inconsistency between what [plaintiff]
alleges she is able to do for herself and what she does for her
clients undermines her credibility with regard to the level of
limitations she experiences.”
finding is not well-supported.

R. 73.

This adverse credibility

Yes, plaintiff did testify that

she performs a variety of household chores for her clients as a
home health worker.

R. 90, 92.

But she also testified that

“it’s painful for me to do these things,” and that “once I leave
my clients, I’m in excruciating pain at night.”

R. 106.

As far

as the record shows, no treating physician has ever expressed
doubts about the reality or severity of plaintiff’s pain.
Plaintiff testified that she is “trying to survive.”
106.

R.

To that end, she performed work that caused her intense

pain throughout the day, requiring an around-the-clock dosage of
oxycodone, and left her in a state of excruciating pain at night.
See R. 106 (“I find myself in positions that I have to put myself
in . . . because, I’m trying to survive right now.
painful for me to do these things.

But it’s

And . . . once I leave my

clients, I’m in excruciating pain at night, when I put my body

40

down.”), 114 (“I’m working for a healthcare [sic] that is causing
me even more pain, because I have to help girls that are older
than me, that – even a more worse situation.
help myself right now.

So I just need to

And I’m not in a position to do that.”),

R. 123 (“I, myself, prefer to do something, because I could never
get paid enough; but I cannot continue the way that I’m going,
just to maintain, when I know that I can’t do it any longer.”).
An ALJ can “discount a plaintiff’s testimony [as to
subjective pain] to the extent that it is inconsistent with
medical evidence . . . and her own activities during the relevant
period.”

Morris v. Comm’r of Soc. Sec., No. 12-cv-1795

(MAD/CFH), 2014 WL 1451996, at *6 (N.D.N.Y. Apr. 14, 2014).

The

medical evidence in the record indicates that multiple pain
specialists over the course of nearly a decade found it necessary
and proper to prescribe plaintiff an around-the-clock dose of
oxycodone, along with an array of other painkillers.
Occasionally, over this nearly ten-year history of pain
treatment, chart notes will indicate that plaintiff was “doing
well,” or was “asymptomatic.”

These evidentiary “scintilla,”

viewed collectively in light of all the evidence, do not
constitute substantial evidence.

See Williams, 859 F.2d at 258.

And plaintiff’s own activities, including her work history, are
not inconsistent with her claims of pain so much as they are

41

entirely consistent with a claimant trying – and frequently
failing – to work through her chronic pain.21
2. Severity and Effect of Glaucoma and Eye Impairments
The ALJ concluded that plaintiff suffered from two severe
disabilities – breast cancer grade II and degenerative disc
disease – and several non-severe impairments – hypertension,
diabetes mellitus, glaucoma, osteoporosis, and history of
reconstructive hip surgery.

R. 68.

As to the non-severe

impairments, the ALJ concluded that “the evidence does not
demonstrate that these conditions are severe within the meaning
21

One final example is also illustrative, although relatively
minor. Plaintiff testified to the ALJ that she was capable of
sitting “a good half an hour” before she has to get up, and that
“sitting too long” was “a problem,” noting that she was “leaning
more to my right” as she was talking to the ALJ because she was
in pain. R. 106-07. The ALJ did not inquire further, instead
moving on to ask about plaintiff’s ability to bend and stoop. R.
107.
Just moments later, when asking the vocational expert a
standard hypothetical question about the job prospects of a
claimant with plaintiff’s characteristics as the ALJ saw them,
the ALJ asked: “If the person, after sitting for 45 minutes,
would need to stand up to, but no more than five minutes, before
resuming a seated position . . . would that change those jobs
[available]?” R. 122 (emphasis added). The ALJ never explained
from what evidence she determined that plaintiff could sit
considerably longer than plaintiff claimed. To the extent the
ALJ made that determination based on her own observation of
plaintiff, it is unpersuasive. See Soto v. Barnhart, 242 F.
Supp. 2d 251, 257 (W.D.N.Y. 2003) (“An ‘ALJ’s observation that [a
claimant] sat through the hearing without apparent pain, being
that of a lay person, is entitled to but limited weight.’”
(quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638,
645 (2d Cir. 1983)). “Where it is well documented that the
plaintiff has endured this pain for many years, and has as a
result learned to tolerate such pain, I find it of very limited
value that the ALJ observed no apparent signs of distress.” Id.

42

of the statute.”

R. 68.

Plaintiff argues that the ALJ’s

classification of some of her impairments as non-severe is “based
in part on the paucity of medical evidence and in part on the
complete absence of any meaningful Medical Source Statement.

Had

the ALJ developed the record it is quite possible or likely that
some or all of these conditions would have been deemed to be
severe.”

Plf.’s Mem., at *7.

The Commissioner responds that it

was plaintiff’s burden to provide evidence,22 and asserts that
“the record contained enough information for the ALJ to make an
informed decision.”

Def.’s Mem., at *4-*5.

I conclude that, at

least with regard to plaintiff’s glaucoma, the ALJ’s
determination is not supported by substantial evidence.
A non-severe impairment is “only a slight abnormality” that
“would have no more than a minimal effect on an individual’s
ability to work.”

Cardoza v. Comm’r of Social Sec., 353 F. Supp.

3d 267, 280 (S.D.N.Y. 2019) (quoting Rosario v. Apfel, No. 97-cv5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19,1999)).

A “severe”

impairment is one that “impose[s] more than a minimal restriction
on a person’s ability to engage in basic work activities.”
Torres v. Shalala, 938 F. Supp. 211, 215 n.8 (S.D.N.Y. 1996).

22

In

As both the regulations and Second Circuit case law make
clear, see supra, the Commissioner retains an affirmative duty to
fill out the administrative record on the claimant’s behalf,
especially but not exclusively when the claimant proceeds pro se.

43

other words, in the context of a disability benefits hearing,
severity is not a high bar.
I agree with plaintiff that the ALJ’s classification of her
glaucoma as a non-severe impairment is based on an inadequate
record and against the substantial weight of the record evidence.
The ALJ’s discussion of the plaintiff’s glaucoma is, in its
entirety, as follows:
As for the claimant’s reported diagnosis of glaucoma,
treatment records in February 2015 document that the
claimant’s vision was 20/20 for near vision bilaterally
and 20/70 for distance vision bilaterally (Exhibit 84).
However, the examination notes that the claimant’s vision
was tested without correction and she was given a
prescription and referral to indigent care for low cost
prescription glasses (Exhibit 8F). As such, it appears
the claimant’s vision is not significantly limiting with
correction and the evidence does not contain a definitive
diagnosis of glaucoma (Exhibit 8F).
R. 69.
As the Commissioner acknowledges, Def.’s Mem., at *6, the
ALJ’s statement that the record does not contain a definitive
diagnosis of glaucoma is incorrect.

The record contains two

diagnoses of glaucoma: the first on March 6, 2015, R. 522; the
second on March 15, 2015.

R. 55.

On the second occasion, the

the treating physician diagnosed “primary open-angle glaucoma” in
a “severe stage” in “both eyes.”

R. 55.

The Commissioner’s

rejoinder is to repeat the ALJ’s assertion that “this did not
affect Ms. Alford’s ability to see well enough to work.”
Mem., at *6.

44

Def.’s

Glaucoma can cause a deterioration of both visual acuity
–how sharp one’s vision is – and visual field – how much one can
see.23

While the ALJ seems to have focused on visual acuity,

deterioration of the visual field may also impact a claimant’s
ability to work, and it appears from the record that plaintiff
was experiencing deterioration of her visual field.24

Moreover,

plaintiff told her ophthalmologist that she was experiencing a
number of visual artifacts, including a “mercury like arc
temporally” appearing intermittently, “1 black spot that has now
become multiple” and “a shower down affect [sic] of several black
spots last week.”

R. 53.

Her discussion of her vision with the

ALJ is also instructive:
A: . . . I was told that I have cataracts – I mean,
glaucoma, in my right eye.
Q: Uh-huh.
A: And -Q: What’s your vision in your right eye. Do you know?
A: –not that much in any – I haven’t been to the eye
doctor.
I haven’t been able to go.
But it’s gotten

23

See Glaucoma, Merck Manual of Diagnosis & Therapy (20th ed.
2018), at 934-35.
24
I am not in a position to attempt to interpret the
ophthalmologist’s shorthand on page 55 of the record. But I take
judicial notice of the fact that the diagnostic criteria of
“severe-stage” glaucoma requires (1) “optic nerve abnormalities
consistent with glaucoma,” and one of (2a) “glaucomatous visual
field abnormalities in BOTH hemifields,” or (2b) “loss within 5
degrees of fixation in at least one hemifield.” ICD-10 Glaucoma
Reference Guide, Am. Acad. of Ophthalmology (Feb. 2015),
available at:
https://www.aao.org/Assets/5adb14a6-7e5d-42ea-af51-3db772c4b0c2/6
36396205914600000/glaucoma-quick-reference-guide-update-8-29-17-p
df?inline=1.
45

worse. I can hardly see at nighttime through my right
eye.
Q: Does it bother you during the day, or is it -A: Yes. I have -Q: – just at night?
A:– no. I have to keep blinking to focus out of this
right eye. And it’s not as clear as it used to be. I
see -ALJ: I’m going to turn now to the vocational expert.
R. 114-115.
More is required to adequately develop the record with
regard to plaintiff’s glaucoma.

“The ALJ’s duty to develop the

administrative record encompasses not only the duty to obtain a
claimant’s medical records and reports, but also the duty to
question the claimant adequately about any subjective complaints
and the impact of the claimant’s impairments on the claimant’s
functional capacity.”

Will ex rel. C.M.K. v. Comm’r of Social

Sec., 366 F. Supp. 3d 419, 424 (W.D.N.Y. 2019) (quoting Puckett
v. Berryhill, No. 17-cv-5392 (GBD)(KHP), 2018 WL 6061206, at *2
(S.D.N.Y. Nov. 20, 2018)).

The ALJ’s brief questioning of

plaintiff fell short, especially because plaintiff’s treating
physician described her glaucoma as “severe.”

R. 55.

See Losco,

604 F. Supp. at 1020 (S.D.N.Y. 1985) (“[D]espite [medical
evidence from an eye doctor] and plaintiff’s testimony that
plaintiff suffered blurred vision . . . the ALJ inquired only
briefly about the condition of plaintiff’s eyes and the effect of
his impairment on his general functional capacity.”).

46

The ALJ also erred in failing to obtain a medical source
opinion from plaintiff’s treating ophthalmologist.

The general

rule, derived from the regulations, is that the ALJ should
request and consider “a medical source statement about what you
can still do despite your impairment(s).”

See Tankisi v. Comm’r

of Social Sec., 521 F. App’x 29, 33 (2d Cir. 2013).

However, if

“the record contains sufficient evidence from which an ALJ can
assess the petitioner’s residual functional capacity,” then
“remand is not . . . required.”

Id. at 34.

In Tankisi, the

Second Circuit held that remand was not necessary because,
although the record did not contain a formal opinion on the
claimant’s residual functional capacity from her treating
physicians, it did “include an assessment of [the claimant]’s
limitations from a treating physician.”

Id.

There is no such assessment here regarding plaintiff’s eye
impairments, and the objective evidence only supports plaintiff’s
subjective complaints of blurriness and visual artifacts.
Accordingly, while the record “contains a fair amount of entries
as to” other impairments, it is insufficient as to her eye
impairments, particularly glaucoma.

See Sanchez v. Colvin, No.

13-cv-6303 (PAE), 2015 WL 736102, at *7 (S.D.N.Y. Feb. 20, 2015).
The ALJ’s decision also contains no discussion of
plaintiff’s documented difficulty with her glaucoma medication.
The Commissioner must take into account “[t]he type, dosage,

47

effectiveness, and side effects of any medication you take or
have taken to alleviate your pain or other symptoms.”
§ 404.1529(c)(3)(iv).

20 C.F.R.

Plaintiff was prescribed “MZM,” or

methazolamide, to treat her glaucoma because her intraocular
pressure (“IOP”) in the “mid-teens [was] likely too high for [her
optic] nerve.”25

R. 55.

However, at the visit on March 15,

2016, plaintiff reported discontinuing the MZM because of
frequent urination.

R. 53.

Her IOP was measured twice for each

eye, and each measurement reported further elevations in her
IOP–values of 19 and 20 for her right eye and 19 and 19 for her
left eye.

R. 54.

The ophthalmologist ordered her to restart the

MZM, noting that her IOP was “too high.”
her to consult with Dr. Tamim.

R. 53.

He also advised

R. 55.

On April 19, 2016, after a series of visits in which Dr.
Tamim reported that plaintiff was suffering from depression,
plaintiff informed Dr. Tamim that she had “stopped the medication
for her glaucoma and . . . her mood had] been much more stable.”
R. 48.

She was “advised to follow up with her ophthalmologist

for an alternative treatment for her glaucoma as soon as
possible.”

R. 49.

There are no follow-up records with the

25

Loss of vision from glaucoma occurs when a build-up of
pressure within the eye damages the optic nerve. Methazolamide
treats glaucoma by reducing pressure in the eye. Methazolamide,
Medlineplus.gov, Drugs, Herbs & Supplements,
https://medlineplus.gov/druginfo/meds/a613034.html (last revised
Feb. 15, 2017).
48

ophthalmologist.

As a result, we do not know whether plaintiff

resumed taking medication for her glaucoma and, if so, its impact
on her ability to work.
Finally, as to both the issue of the plaintiff’s pain and
her eye impairments, the Commissioner’s argument that gaps in the
medical record should be excused because “the Defendant asked Ms.
Alford on more than one occasion whether there were missing or
outstanding medical records,” Def.’s Mem., at *4, is clearly
foreclosed by well-settled law.

See Losco, 604 F. Supp. at 1020

n.4 (“[T]his court holds as a matter of law that the ALJ cannot
satisfy his ‘heightened duty to scrupulously and conscientiously
probe into, inquire of, and explore for all relevant facts’
merely by extending to a pro se claimant the opportunity to
present relevant evidence.”) (citation omitted).

Particularly

“in view of [P]laintiff’s pro se status” as well as “her actual
performance at the administrative hearing, it is both unrealistic
and unfair to expect that” simply offering plaintiff the
opportunity to provide further evidence “will in practice yield a
fully developed administrative record.”

49

Id.

IV. Conclusion
Accordingly, the decision is reversed and the case is
remanded for further proceedings consistent with this ruling.
So ordered this 30th day of September 2019.

/s/ RNC
Robert N. Chatigny
United States District Judge

50