Soderstrom v. Berryhill

Filing 23

ORDER. For the reasons set forth herein, plaintiff's motion for judgment on the pleadings is denied. The Commissioner's cross-motion for judgment on the pleadings is also denied. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/9/2019. (Clarke, Molly)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 17-CV-0982 (JFB)

_____________________

JEAN SODERSTROM,
Plaintiff,
VERSUS

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
___________________
MEMORANDUM AND ORDER
May 9, 2019
______________
JOSEPH F. BIANCO, District Judge:
Plaintiff Jean Soderstrom brings this
action under 42 U.S.C. § 405(g) of the Social
Security Act (“SSA”) to challenge a final
decision of the Commissioner of Social
Security
(the
“Commissioner”).
Administrative Law Judge Patrick Kilgannon
(“ALJ Kilgannon” or “the ALJ”) determined
that plaintiff was not disabled from
September 19, 2011 to November 30, 2014
(“the Relevant Period”), but was disabled as
of December 1, 2014.
Plaintiff moves for judgment on the
pleadings under Federal Rule of Civil
Procedure 12(c). Plaintiff argues that the
ALJ failed to adequately develop the
administrative record and that, given the
evidence that plaintiff cannot drive or use

public transportation, the Commissioner’s
finding that she was not disabled before
December 1, 2014 was not based on
substantial evidence. Plaintiff requests that
the Commissioner’s decision be vacated and
that the Court remand the case with
instructions to award benefits. Alternatively,
plaintiff requests that the Commissioner’s
decision be vacated and that the Court
remand the case for additional administrative
proceedings. The Commissioner opposes
plaintiff’s motion and cross-moves for
judgment on the pleadings.
For the reasons set forth below, the Court
denies plaintiff’s motion for judgment on the
pleadings, denies the Commissioner’s crossmotion for judgment on the pleadings, and

remands the case to the ALJ for further
proceedings
consistent
with
this
Memorandum and Order.

evidence of lower cervical spine discogenic
disease
and
uncontrovertebral
joint
arthopathy with associated mild bilateral
neuroforaminal narrowing. (Id.)

I. BACKGROUND

Plaintiff returned to Dr. Belostocki on
November 30, 2011. (AR 344.) Dr.
Belostocki’s treatment notes describe
plaintiff as a “woman with anxiety, detached
retina right eye, several years of fatigue and
polyarthralgia, positive [Rheumatoid Factor]
and positive [Anti-Nuclear Antibody]
screen.” (Id.) The notes indicate that
plaintiff reported taking Xanax and Advil for
these conditions. (Id.) After examining
plaintiff, Dr. Belostocki concluded that
plaintiff had bilateral crepitus of the first
carpometacarpal joints; bilateral patellar
hypermobility; tenderness of the left lateral
epicondyle; bilateral spasm of her trapezius
muscles; and lumbar paraspinal spasm. (Id.)
Dr.
Belostocki
ordered
bloodwork,
prescribed Mobic, and suggested a follow-up
in eight weeks. (Id.)

A. Personal and Work History
Plaintiff was born in January 1960. (AR
183.)1 She attended two years of college in
2003, and has a degree in radiologic
technology. (AR 36, 256.) From 2003 to
September 19, 2011, plaintiff worked as an xray technician. (AR 257, 276.) Plaintiff’s
employment ended when the doctors she
worked for closed their practice. (AR 37.)
Although, according to plaintiff, she
attempted to find new employment, her
attempts were unsuccessful. (Id.) At some
point in early 2012, plaintiff moved to
Florida. (Id.; see also AR 354.) She returned
to New York in October 2013. (AR 354.)
B. Medical Evidence
Although plaintiff alleged a disability
onset date of September 19, 2011, the ALJ
determined that she became disabled on
December 1, 2014. The Court will briefly
discuss the medical evidence before and after
the ALJ’s determined onset date.

From October 18, 2011 to February 7,
2012, plaintiff attended numerous mental
health counseling sessions at South Nassau
Communities Hospital. (AR 354.) A report
prepared by chief psychologist Rosemary
O’Regan and psychology intern Jaime
Holtzer indicates that plaintiff complained of
feeling anxious when driving or in crowds.
(Id.) She further reported that she had
experienced several panic attacks, and felt
depressed. (Id.) The report notes that
plaintiff was diagnosed with panic disorder
with agoraphobia, dysthymia, and dependent
personality disorder. (Id.)

1. Medical Evidence before December 1,
2014
On January 29, 2010, plaintiff saw Dr.
Kristina Belostocki for “several year[s] of
fatigue
and
polyarthralgia,
positive
[Rheumatoid Factor] and positive [AntiNuclear Antibody] screen.” (AR 345.)
Plaintiff complained of pain and stiffness in
her hands, wrists, neck, lower back, knees,
and feet. (Id.) Dr. Belostocki noted that xrays of plaintiff’s hands showed evidence
suggestive of intraosseous ganglion and
scapholunate interval ligamentous laxity.
(AR 349.)
The x-rays also contained

Over the next several months, plaintiff
saw Dr. Randolph Nunag for treatment on
various occasions. On June 5, 2012, plaintiff
saw Dr. Nunag for anxiety. (AR 365-66.)
She reported a history of depression, anxiety,

Citations to “AR” are references to the
Administrative Record.
1

2

and epicondylitis. (AR 365.) Dr. Nunag
prescribed Xanax. (Id.) On December 27,
2012, plaintiff saw Dr. Nunag for chest pains,
anxiety, twitching, and dizziness that had
lasted for two days. (Id.) On January 16,
2013, plaintiff returned to Dr. Nunag. (AR
361.) The notes from that appointment
indicate that plaintiff complained of pain in
her right ankle, and cysts in her right hand
and on the bottom of her feet. (Id.) Dr.
Nunag referred plaintiff to a podiatrist. (Id.)
Finally, on April 10, 2013, plaintiff visited
Dr. Nunag for epicondylitis. (AR 360.) Dr.
Nunag’s treatment notes indicate that
plaintiff had been taking Mobic prescribed to
her by a rheumatologist. (Id.)

undergo a psychological and a physical
consultative examination. On December 1,
2014, Dr. Paul Herman conducted a
psychiatric examination. (AR 468-72.) Dr.
Herman’s notes reflect that plaintiff reported
long-time treatment for panic attacks. (AR
468.) Plaintiff also reported “substantial
difficulty
[with]
being
on
public
transportation, such as buses or trains.” (AR
469.) She told Dr. Herman that she could
“walk places and take taxis places, but that
those other forms of transportation provide
her with a great deal of anxiety.” (Id.) Aside
from her issues with public transportation,
plaintiff reported no significant difficulties
with activities of daily living related to
psychological or psychiatric issues. (AR
470.) Dr. Herman concluded that, if plaintiff
“is provided with a work site that she can
walk to or take a taxi to, she appears capable
[of] following and understanding simple
directions and instructions, performing
simple tasks, maintaining attention and
concentration, maintaining a regular
schedule, learning new tasks, making
appropriate decisions, relating adequately
with others, and appropriately dealing with
stress.” (AR 470-71.) In sum, he stated that
the results of plaintiff’s psychiatric
examination were consistent with psychiatric
problems, “but, in and of themselves, do not
appear to be significant enough to interfere
with the claimant’s ability to function on a
daily basis as long as the claimant’s
transportation difficulties can be addressed.”
(AR 471.) Dr. Herman diagnosed plaintiff
with agoraphobia and panic disorder. (Id.)

On March 17, 2014, plaintiff returned to
the South Nassau Mental Health Counseling
Center. (AR 453-58.)
Plaintiff again
reported a history of anxiety and panic
attacks. (AR 453.) Plaintiff was diagnosed
with anxiety and depression and was
assigned to a therapist and psychiatrist for
treatment. (AR 454-55.) Two days later, on
March 19, 2014, plaintiff began therapy with
Marta Laurette, and attended regular sessions
until August 2014. (AR 421-22, 426-27,
431-51.)
Plaintiff was also assessed by psychiatrist
Dr. Nnamdi Odiah on April 15, May 13, and
June 10, 2014. (AR 432-34, 439-41, 446.)
Over the course of that treatment, Dr. Odiah
diagnosed anxiety, depression, and panic
disorder with agoraphobia. (AR 433, 440,
447.) Dr. Odiah recommended that plaintiff
continue to take Xanax for her symptoms.
(AR 432-33, 439-40, 446-47.)

Also on December 1, 2014, Dr. Linell
Skeene conducted a physical examination.
(AR 482-91.) Dr. Skeene’s report indicates
that plaintiff’s primary complaint was that
she had pain in both hands, which she said
began in 2013. (AR 482.) Plaintiff rated the
pain in her hands at a five out of ten. (Id.)
Dr. Skeene’s report further noted that
plaintiff had never had injections or received

Plaintiff was also treated by psychiatrist
Dr. Paul Agnelli on July 8 and August 5,
2014. (AR 428-30.)
2. Medical Evidence on and after
December 1, 2014
After the administrative hearing in this
case, ALJ Kilgannon requested that plaintiff
3

physical therapy. (Id.) Dr. Skeene noted
scattered nodular formations in plaintiff’s
palms (id.), and diagnosed plaintiff with
Dupuytren’s contracture of both hands,
plantar fasciitis of the right leg, and legal
blindness in the right eye (AR 485). Dr.
Skeene concluded that plaintiff’s prognosis
was fair, and opined that plaintiff had
“moderate limitation for grasping, writing,
and heavy lifting due to painful nodules of
both hands.” (Id.)2

(AR 494.) Dr. Brown diagnosed plaintiff
with De Quervain’s Disease. (Id.)
On February 26, 2015, plaintiff’s primary
care physician, Dr. John Bedell, completed a
medical report and functional assessment of
plaintiff. (AR 495-500.) The report indicates
that Dr. Bedell had been treating plaintiff
approximately once a month since October
30, 2014. (AR 497.) Dr. Bedell diagnosed
plaintiff with panic disorder with
agoraphobia, arthritis in the hands, and
blindness in the right eye. (AR 495.) He
reported that plaintiff’s ability to grasp,
release, handle, and finger objects was
abnormal due to bilateral arthritis in her
hands. (AR 496.) He also noted that
plaintiff’s ability to operate a motor vehicle
was abnormal, because she experienced
panic attacks and anxiety while driving. (Id.)
With respect to activities of daily living, Dr.
Bedell opined that plaintiff was restricted in
her ability to shop, use public transportation,
and plan daily activities. (AR 496-97.)

Dr. Skeene also completed a medical
source statement of ability to do physical
work-related activities based on her
consultative examination. (AR 486-92.) In
her statement, Dr. Skeene opined that
plaintiff was limited to (1) lifting and
carrying no more than ten pounds, (2) sitting
for one hour at a time and for four hours total
in an eight-hour workday, and (3) standing
and walking for one hour at a time and for
two hours total in an eight-hour workday.
(AR 487.) She further opined that plaintiff
was limited to occasional reaching, handling,
fingering, feeling, pushing, and pulling, and
occasional operation of foot controls. (AR
488.) With respect to postural activities, Dr.
Skeene opined that plaintiff could never
climb ladders or scaffolds, and could
occasionally climb stairs and ramps, balance,
stoop, kneel, crouch, and crawl. (AR 489.)
Dr. Skeene noted that plaintiff had visual
impairments, but could avoid ordinary
hazards in the workplace. (Id.)

C. Procedural History
Plaintiff applied for social security
disability benefits on May 29, 2013, alleging
disability due to shoulder, neck, and elbow
pain, joint and back muscle spasms,
depression and anxiety, as of September 19,
2011.
(AR 183-96.)
After plaintiff’s
application was denied, she requested a
hearing before an Administrative Law Judge.
(AR 121.) The ALJ held a hearing on
October 31, 2014, at which plaintiff testified
by telephone. (AR 29-48.)

On February 6, 2015, plaintiff saw Dr.
Bennett H. Brown, an orthopedist, for left
elbow, wrist, and hand pain, which she
reported had been ongoing for six months.
(AR 493-94.) Plaintiff rated her pain at an
eight out of ten. (AR 493.) Dr. Brown’s
report indicates that he observed moderate
tenderness over the left first dorsal
compartment with positive Finkelstein’s test.

The ALJ held the record open following
the hearing. As noted above, the ALJ
requested that plaintiff undergo a physical
and a psychological examination. He also
“made every reasonable effort to obtain
pertinent medical evidence from treating

2

Plaintiff contends that Dr. Skeene diagnosed her with
fibromyalgia. (Pl. Br. 12.) However, Dr. Skeene’s

report notes only that plaintiff had been diagnosed
with fibromyalgia in the past. (AR 482, 485.)

4

sources identified by [plaintiff].” (AR 12.)

“even if [the court] might justifiably have
reached a different result upon a de novo
review.” Jones v. Sullivan, 949 F.2d 57, 59
(2d Cir. 1991) (citation omitted); see also
Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir.
1998) (“Where an administrative decision
rests on adequate findings sustained by
evidence having rational probative force, the
court should not substitute its judgment for
that of the Commissioner.”).

After receiving additional medical
information, the ALJ issued a May 22, 2015,
partially favorable decision finding plaintiff
not disabled from September 19, 2011 to
November 30, 2014, and disabled as of
December 1, 2014. (AR 9-28.) Plaintiff
requested a review of the ALJ’s decision by
the Appeals Council (AR 7), which was
denied (AR 1-6). Accordingly, the ALJ’s
determination became the final decision of
the Commissioner.

III. DISCUSSION
A. The Disability Determination

Plaintiff commenced this lawsuit on
February 21, 2017. (ECF No. 1.) On
November 22, 2017, plaintiff moved for
judgment on the pleadings. (ECF No. 12.)
The Commissioner submitted a cross-motion
for judgment on the pleadings on March 22,
2017. (ECF No. 18.) Neither party submitted
a reply. The Court has fully considered the
parties’ submissions.

A claimant is entitled to disability
benefits if the claimant 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 not
less than twelve months.”
42 U.S.C.
§ 1382c(a)(3)(A). An individual’s physical
or mental impairment is not disabling under
the SSA unless it is “of such severity that he
is not only unable to do his previous work but
cannot, considering his age, education, and
work experience, engage in any other kind of
substantial gainful work which exists in the
national economy.” Id. § 1382c(a)(3)(B).

II. STANDARD OF REVIEW
A district court may set aside a
determination by an ALJ “only if it is based
upon legal error or if the factual findings are
not supported by substantial evidence in the
record as a whole.” Greek v. Colvin, 802
F.3d 370, 374-75 (2d Cir. 2015) (citing
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.
2008); 42 U.S.C. § 405(g)). The Supreme
Court has defined “substantial evidence” in
Social Security cases to mean “more than a
mere scintilla” and that which “a reasonable
mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). Furthermore, “it is up to the agency,
and not [the] court, to weigh the conflicting
evidence in the record.” Clark v. Comm’r of
Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
If the court finds that there is substantial
evidence to support the Commissioner’s
determination, the decision must be upheld,

The Social Security Regulations establish
a five-step procedure for determining
whether a claimant is entitled to social
security benefits. See 20 C.F.R. §§ 404.1520,
416.920.
The Second Circuit has
summarized this procedure as follows:
The first step of this process requires
the [Commissioner] to determine
whether the claimant is presently
employed. If the claimant is not
employed, the [Commissioner] then
determines whether the claimant has
a “severe impairment” that limits her
capacity to work. If the claimant has
such
an
impairment,
the
[Commissioner]
next considers
5

whether the claimant has an
impairment listed in Appendix 1 of
the regulations. When the claimant
has such an impairment, the
[Commissioner] will find the
claimant disabled. However, if the
claimant does not have a listed
impairment, the [Commissioner]
must determine, under the fourth step,
whether the claimant possesses the
residual functional capacity to
perform her past relevant work.
Finally, if the claimant is unable to
perform her past relevant work, the
[Commissioner] determines whether
the claimant is capable of performing
any other work.

fasciitis in the right leg. (AR 14-17.)
However, after considering plaintiff’s history
of psychological treatment, and the opinions
from Dr. Herman and Dr. Bedell regarding
plaintiff’s mental health, the ALJ determined
that plaintiff did not have a severe mental
impairment. (AR 16-17.) In reaching this
conclusion, the ALJ explained that “[t]he
only limitation reported by Drs. Bedell and
Herman is the claimant’s desire not to take
public transportation and her problems
driving, but alternative means of travel are
available and this factor is not generally
considered to be disabling.” (AR 17.) The
ALJ further explained that both doctors
found that plaintiff was capable of
remembering and carrying out job
instructions, performing complex tasks,
making judgments and decisions, dealing
with stress, and relating appropriately with
others. (AR 16.)

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.
1999) (quoting Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996)). The claimant bears the
burden of proof with respect to the first four
steps; the Commissioner bears the burden of
proving the last step. Id.

At step three, the ALJ determined that
plaintiff did not have an impairment or
combination of impairments that met or
medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, and 404.1526).
(AR 17-18.)
Accordingly, the ALJ
proceeded to determine plaintiff’s residual
functional capacity (“RFC”).

In making these determinations, the
Commissioner “must consider four factors:
‘(1)
the
objective
medical
facts;
(2) diagnoses or medical opinions based on
such facts; (3) subjective evidence of pain or
disability testified to by the claimant or
others; and (4) the claimant’s educational
background, age, and work experience.’” Id.
(quoting Mongeur v. Heckler, 722 F.2d 1033,
1037 (2d Cir. 1983) (per curiam)).

The ALJ found that, prior to December 1,
2014, plaintiff had the RFC to perform light
work, with several limitations. (AR 18.) In
particular, the ALJ concluded that, during
that time period, plaintiff could (1) only
occasionally climb ladders, ropes, scaffolds,
ramps or stairs; (2) only occasionally
balance, stoop, crouch, kneel, or crawl; and
(3) could not work around dangerous
machinery or automotive equipment due to
limited peripheral vision. (AR 18-20.) In
reaching this conclusion, the ALJ found that
plaintiff’s
medically
determinable
impairments could reasonably be expected to

B. The ALJ’s Ruling
At the first step in the five-step process,
the ALJ determined that plaintiff had not
engaged in substantial gainful activity since
September 19, 2011, the alleged onset date of
her disability. (AR 14.)
At the second step, the ALJ determined
that, since September 19, 2011, plaintiff had
suffered from “severe impairments,”
including mild degenerative joint disease,
contracture of both hands, and plantar
6

cause her symptoms, but that plaintiff’s
statements about the intensity, persistence,
and limiting effects of these symptoms were
not entirely credible prior to December 1,
2014. (AR 20.) In particular, the ALJ
concluded that plaintiff’s statements were not
consistent with her treatment records or her
activities of daily living. (AR 20.) He further
noted that “no medical opinions state that the
claimant was unable to work in any capacity”
prior to December 1, 2014. (Id.) The ALJ
acknowledged that Dr. Belostocki had
reported, on January 29, 2010, that plaintiff
“had several years of complaints of fatigue
and polyarthralgia, and could have
underlying connective tissue disease or,
alternatively fibromyalgia, thyroid disease or
a regional musculoskeletal syndrome,” but
noted that “no definite diagnosis was made.”
(AR 19.) The ALJ made no mention of Dr.
Nunag or his treatment notes. In short, the
ALJ found that that there “are no medical
records that indicate significant symptoms,
signs, or limitations until December 1, 2014.”
(Id.)

The ALJ also based this finding on the
February 26, 2015 report from Dr. Bedell, in
which Dr. Bedell indicated that plaintiff “has
bilateral arthritis of the hands.” (Id.) The
ALJ gave “great weight” to “Dr. Bedell’s
opinion because he is a treating source and
therefore had an excellent opportunity to
become familiar with [plaintiff’s] physical
and mental status.” (Id.) In this analysis, the
ALJ stated that “[m]edical records support
the alleged severity of the claimed
impairments, and the characterization of pain
and other symptoms is consistent with the
objective evidence, as of December 1, 2014,
which lends credence to [plaintiff’s]
allegations.” (Id.)
At the final step of the five-step process,
the ALJ determined that, considering
plaintiff’s age, education, work experience,
and residual functional capacity before
December 1, 2014, there were jobs that
existed in significant numbers in the national
economy that plaintiff could perform. (AR
22.) In contrast, the ALJ found that, as of
December 1, 2014, considering plaintiff’s
age, education, work experience, and residual
functional capacity, there were no jobs in the
national economy that plaintiff could
perform. (AR 22-23.) Consequently, the
ALJ determined that plaintiff was disabled as
of December 1, 2014, and did not qualify for
disability benefits before that date.

As of December 1, 2014, the ALJ found
that plaintiff had the RFC to perform the full
range of sedentary work, with the same
limitations that existed before that date. (AR
20-21.) In reaching this conclusion, the ALJ
found that plaintiff’s allegations about her
symptoms and limitations after December 1,
2014 were generally credible. (AR 20.) The
ALJ based this conclusion primarily on the
December 1, 2014 consultative examination
by Dr. Skeene. (See AR 20-21.) He noted
that Dr. Skeene diagnosed plaintiff with
Dupuytren’s contracture of both hands, as
well as plantar fasciitis in her right leg. (AR
20.) He also detailed Dr. Skeene’s findings
as to plaintiff’s exertional limitations. (Id.)
The ALJ gave “significant weight” to “Dr.
Skeene’s opinion, which is the first indication
of a significant limitation of use of the
hands.” (AR 21.)

C. Analysis
Plaintiff challenges the Commissioner’s
decision that she was not disabled during the
Relevant Period—September 19, 2011 to
November 30, 2014.
She asserts two
arguments: first, that the ALJ failed to
adequately develop the record and, second,
that plaintiff’s inability to use public
transportation during that period mandates a
finding that she was disabled. As set forth
below, the Court concludes that a remand is
required because the ALJ failed to adequately
develop the record. Moreover, once the
7

record is adequately developed, the ALJ
should analyze the plaintiff’s inability to use
public transportation in the context of the
entire record.

Under this legal framework, several
courts have held that the Commissioner “may
not rely on the first date of diagnosis as the
onset date simply because an earlier
diagnosis date is unavailable.” McCall, 2008
WL 5378121, at *18.
Similarly, the
Commissioner may not “adopt[] some other
equally arbitrary onset date, such as the date
on which the claimant applied for SSI
benefits,
received
a
consultative
examination, or appeared before an ALJ at an
administrative hearing.”
Id. (collecting
cases). “The Commissioner’s failure to
adhere to the guidelines set forth in SSR 83–
20 when determining a claimant’s disability
onset date constitutes grounds for remand
when the Commissioner’s determination of
disability onset date is not otherwise
supported
by substantial
evidence.”
Cataneo, 2013 WL 1122626, at *17.

1. Failure to Develop the Record
Social Security Regulation (“SSR”) 83–
20 establishes guidelines for determining a
disability onset date. Under this regulation,
“[t]he starting point in determining the date
of onset of disability is the individual’s
statement as to when disability began.” SSR
83–20. The alleged onset date “must be
accepted if it is consistent with all available
evidence.”
McCall v. Astrue, No. 05
Civ.2042(GEL), 2008 WL 5378121, at *18
(S.D.N.Y. Dec. 23, 2008) (collecting cases).
“Where the alleged onset date is not
consistent with the available evidence,
further development of the record to
reconcile the discrepancy is appropriate.” Id.
If “the medical evidence is insufficient to
establish a precise date, the date can be
inferred.” Id. (quoting Felicie v. Apfel, No.
95 Civ. 2832, 1998 WL 171460, at *4
(S.D.N.Y. Apr. 13, 1998)).
In that
circumstance, however, it is “essential” that
the ALJ consult a medical advisor to aid in
determining the onset date.
Cataneo v.
Astrue, No. 11-CV-2671 (KAM), 2013 WL
1122626, at *16 (E.D.N.Y. Mar. 17, 2013)
(“[C]ourts have found it ‘essential’ for the
Commissioner to consult a medical advisor
where, as here, a claimant does not have
contemporaneous medical evidence from the
period around his alleged disability onset
date; the record is ambiguous with respect to
onset date; and claimant’s disability onset
date must therefore be inferred from present
medical evidence.”). Overall, SSR 83–20
mandates that “the established onset date
must be fixed based on the facts and can
never be inconsistent with the medical
evidence of record,” and that the ALJ must
provide a “convincing rationale” for the date
selected. SSR 83–20.

To support her contention that the ALJ
failed to adequately develop the record,
plaintiff points to the fact that the ALJ did not
obtain treatment records from Dr. Bedell. As
noted above, plaintiff identified Dr. Bedell as
her primary care physician at the
administrative hearing. Plaintiff testified that
Dr. Bedell had been treating her since she had
returned from Florida in October 2013, but
that he was also her primary care doctor
before she moved. (AR 40.) At the end of
the administrative hearing, the ALJ told
plaintiff that he would “try to obtain” records
from Dr. Bedell. As described above, the
ALJ did receive a February 26, 2015 medical
report and functional assessment from Dr.
Bedell. (AR 495-500.) However, the ALJ
did not receive treatment records from Dr.
Bedell. Plaintiff argues that the absence of
treatment records from Dr. Bedell
disadvantaged plaintiff because those records
could have contained evidence of plaintiff’s
significant limitations in the use of her hands
earlier than December 1, 2014.
The Court concludes that the ALJ failed
8

functional limitations as of an earlier date”
insofar as it did not conclude greater
restrictions on plaintiff’s ability than the
examining physicians and, presumably, was
based on Dr. Bedell’s prior experiences with
plaintiff, the failure to obtain the treatment
records is harmless. (Def.’s Mem. at 16.)
Although it may be unlikely that the preDecember 1, 2014 records from Dr. Bedell
would establish greater restrictions than his
medical source statement from February 26,
2015, the Court is not persuaded that the
failure to obtain those records would
necessarily be harmless. Notwithstanding
the level of limitations in Dr. Bedell’s
February 26, 2015 medical source statement,
those earlier records could still contradict the
ALJ’s findings that “[t]here are no medical
reports or records that indicate significant
symptoms, signs, or limitations until
December 1, 2014” (AR 19), and that Dr.
Skeene’s December 1, 2014 medical source
statement “is the first indication of a
significant limitation of the use of the hands”
(AR 21), which were critical for the ALJ’s
determination of the onset date. In other
words, if there were significant symptoms or
limitations in Dr. Bedell’s treatment records
prior to December 1, 2014, those records may
have caused the ALJ to develop the record
even further, including by seeking medical
opinions from Dr. Belostocki or Dr. Nunag
(who also treated plaintiff during the
Relevant Period), or consulting a medical
advisor to aid in determining the onset date.

to adequately develop the record with respect
to the alleged onset date. Plaintiff’s alleged
onset date was September 19, 2011, the date
on which her employment as an x-ray
technician ended. The ALJ then failed both
to develop the record generally with regard to
the Relevant Period or to seek “consult[ation]
[with]
a
medical
advisor,”
if
contemporaneous evidence could not be
obtained. Cataneo, 2013 WL 1122636, at
*16. The ALJ’s determination states that
“[t]here are no medical reports or records that
indicate significant symptoms, signs, or
limitations until December 1, 2014” (AR 19),
and concludes that Dr. Skeene’s December 1,
2014 medical source statement “is the first
indication of a significant limitation of use of
the hands” (AR 21). In other words, the ALJ
used Dr. Skeene’s December 1, 2014
consultative examination and diagnosis as the
date on which plaintiff’s disability began.
However, the ALJ did not receive the
treatment records from Dr. Bedell which
could have provided evidence that the
significant limitations on the use of her hands
began earlier than December 1, 2014.
The Commissioner argues that the Court
should infer from the ALJ’s stated intention
to obtain treatment records from Dr. Bedell
and the ALJ’s statement that “this office
contacted Dr. John Bedell, D.O.,” (AR 16)
that it indeed did so in a fashion sufficient to
meet the “every reasonable effort” standard
of 42 U.S.C. § 423(d)(5)(B). However, the
Court is unable to conclude that the contact
that was made concerned an initial request for
treatment records (as opposed to a request for
the medical report provided in February
2015), or that, if it did, a follow-up request
was made as required by 20 C.F.R. §§
404.1512(d), 416.912(d).

Accordingly, the Court concludes that the
ALJ failed to adequately develop the record
before making a determination of disability
onset date and that remand on that ground is
warranted.
2. Inability to Use Public Transportation

The Commissioner further argues that,
because Dr. Bedell’s medical source
statement “demonstrates that the treatment
records would not have established

Plaintiff also argues that her inability to
drive or use public transportation due to her
mental impairments should compel a finding
of disability. However, as the Commissioner
9