Wilcox v. Berryhill
Filing
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DECISION and ORDER: that Plaintiff's Motion for Judgment on the Pleadings (Dkt. No. 11 ) is Granted; that Defendant's Motion for Judgment on the Pleadings (Dkt. No. 14 ) is Denied; that Defendant's decision denying Plaintiff benefits is Vacated and Remanded pursuant to Sentence Four of section 405(g) for further proceedings; and that the Clerk of the Court serve a copy of this Decision and Order upon the parties to this action. Signed by Magistrate Judge Daniel J. Stewart on 12/19/2018. (hmr)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PENNY ANN W.,
Plaintiff,
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Civ. No. 5:17-CV-1122
(DJS)
NANCY A. BERRYHILL, Acting
Comm’r of Soc. Sec.,
Defendant.
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OF COUNSEL:
OLINSKY LAW GROUP
Counsel for Plaintiff
300 S. State Street
Suite 420
Syracuse, NY 13202
HOWARD D. OLINSKY, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GENERAL COUNSEL
- REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278
JAMES DESIR, ESQ.
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APPEARANCES:
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DANIEL J. STEWART
United States Magistrate Judge
DECISION and ORDER1
Currently before the Court, in this Social Security action filed by Penny Ann W.
against the Commissioner of Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
are Plaintiff’s Motion for Judgment on the Pleadings and Defendant’s Motion for Judgment
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Upon Plaintiff’s consent, the United States’s general consent, and in accordance with this District’s General
Order 18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. § 636(c)
and Federal Rule of Civil Procedure 73. See Dkt. No. 6 & General Order 18.
on the Pleadings. Dkt. Nos. 11 & 14. For the reasons set forth below, Plaintiff’s Motion for
Judgment on the Pleadings is granted, Defendant’s Motion for Judgment on the Pleadings
is denied, and the matter is remanded for further proceedings.
I. RELEVANT BACKGROUND
A. Background
Plaintiff was born on October 20, 1977. Dkt. Nos. 8 & 8-1, Admin. Tr. (“Tr.”), p. 52.2
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She completed high school, and has past work as an assembler, office manager, and property
manager. Tr. at pp. 54, 57, & 78. Plaintiff alleges a disability onset date of June 11, 2013.
Tr. at p. 270.
Plaintiff originally filed her claim for Supplemental Security Disability and Disability
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Insurance Benefits on September 8, 2014, alleging schizophrenia, bipolar disorder, border
line personality disorder, anxiety, depression, eating disorder, asthma, diabetes, and
pacreatitis. Tr. at pp. 270 & 301. Plaintiff’s application was denied on October 20, 2014,
and Plaintiff requested a hearing, which was held before Administrative Law Judge (“ALJ”)
David J. Begley on October 21, 2016. Tr. at pp. 84-85; Tr. at pp. 47-83. Plaintiff was
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represented by counsel and testified at the hearing. Tr. at pp. 47-83. On February 16, 2017,
ALJ Begley issued an unfavorable decision finding Plaintiff not disabled. Tr. at pp.12-36.
On August 14, 2017, the Appeals Council concluded there was no basis to review the ALJ’s
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Due to the length of the administrative transcript, it is contained in two docket entries, with consecutive bates
stamp page numbering that continues between the two entries. As they contain consecutive page numbering, they will
both be referred to as “Tr.” herein, along with the corresponding bates stamped page number.
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decision, thus rendering the ALJ’s decision the final decision of the Commissioner. Tr. at
pp. 1-6. This action followed.
B. The ALJ’s Decision
In his determination, ALJ Begley found that Plaintiff met the insured status
requirements of the Social Security Act through June 30, 2016, and had not engaged in
substantial gainful activity since June 11, 2013, the alleged onset date. Tr. at p. 18. He
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found that Plaintiff had the following severe impairments: diabetes mellitus, pancreatitis,
alcohol dependence, bipolar disorder, asthma, and neuropathy. Tr. at p. 18. The ALJ found
that Plaintiff’s mild degenerative disc disease, history of Guillain-Barre syndrome (“GBS”),
gastroesophageal reflux disease, hypokalemia, gastritis, acute hemorrhagic shock, acute
appendicitis status post appendectomy, and a history of an eating disorder were nonsevere,
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because they did not impose more than a minimal restriction on Plaintiff’s ability to perform
basic work activities or because they did not persist at a severe level for a continuous period
of twelve months. Tr. at pp. 18-19. The ALJ considered any effect that these non-severe
impairments might have on Plaintiff’s ability to function when formulating her residual
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functional capacity (“RFC”). Tr. at p. 19. He next found that Plaintiff does not have an
impairment or combination of impairments that meets or medically equals an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, specifically considering Listings 3.02,
3.03, 11.14, 12.04, 12.06, and 9.00B5. Tr. at pp. 19-22.
The ALJ next found that, based on all of Plaintiff’s impairments, she had the RFC to
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perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except the claimant may never climb; may occasionally balance, stoop, kneel,
crouch, and crawl; requires a hand held assistive device to stand and ambulate;
must avoid concentrated exposure to irritants such as fumes, odors, dust, gases
and poorly ventilated areas; must avoid slippery and uneven surfaces as well
as hazardous machinery, unprotected heights and open flames; is limited to
simple, routine, and repetitive tasks in a work environment free of fast-paced
production requirements involving only simple, work-related decisions and
few, if any, work place changes; and may have occasional interaction with
coworkers, supervisors and the general public.
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Tr. at pp. 22-30. The ALJ next found that Plaintiff is unable to perform any past relevant
work, pursuant to the testimony of a vocational expert (“VE”). Tr. at p. 30. The ALJ
recounted that Plaintiff was 35 years old, which is defined as a younger individual age 18-44
on the alleged disability onset date, that she has at least a high school education and is able
to communicate in English, and that transferability of job skills is not an issue because using
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the Medical-Vocational Rules as a framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job skills. Tr. at pp. 30-31. The ALJ
then found that, considering Plaintiff’s age, education, work experience, and RFC, there are
jobs that exist in significant numbers in the national economy that Plaintiff could perform,
based on the testimony of a VE. Tr. at p. 31.
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C. The Parties’ Briefings on Their Cross-Motions
In her brief, Plaintiff first contends that the RFC is not supported by substantial
evidence because the ALJ failed to rely on a medical opinion when assessing Plaintiff’s
physical limitations. Dkt. No. 11, Pl.’s Mem. of Law, pp. 8-11. Plaintiff contends that there
is no medical opinion in the record on Plaintiff’s physical limitations from an acceptable
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source, and that without such an opinion or treatment notes containing assessments of
Plaintiff’s RFC, it was improper for the ALJ to form an RFC as to Plaintiff’s physical
limitations. Id. Plaintiff also contends that the ALJ failed to develop the record in regards
to Plaintiff’s GBS. Id. at pp. 11-14. Plaintiff argues that the ALJ erroneously found
Plaintiff’s GBS to be nonsevere, and ignored relevant evidence regarding the impairment;
Plaintiff contends the ALJ failed to obtain further information from a physician, although the
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record was highly ambiguous regarding Plaintiff’s neurological impairments. Id. Plaintiff
therefore contends that the ALJ failed to develop the record regarding this impairment, and
further, that the ALJ mischaracterized evidence and arbitrarily determined that Plaintiff’s
symptoms were attributable to peripheral neuropathy. Id.
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In response, Defendant contends that the record is devoid of evidence showing that
Plaintiff’s GBS caused more than a minimal impact on Plaintiff’s functioning during the
relevant period, and that the ALJ considered evidence of Plaintiff’s neurological functioning
throughout his decision in any event. Dkt. No. 14, Def.’s Mem. of Law, pp. 5-6. Defendant
contends that Plaintiff was represented by an attorney and should have identified or
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submitted any relevant documentation demonstrating severity, and that, in any event, because
the ALJ proceeded past step two of the sequential analysis, any error at step two would be
harmless. Id. at p. 6. In response to Plaintiff’s claim that the ALJ’s RFC is not supported
by substantial evidence, Defendant contends that the RFC was appropriate without a medical
opinion because the record contained sufficient evidence for the ALJ to assess Plaintiff’s
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RFC, including diagnostic, clinical and examination findings, and Plaintiff’s daily activities.
Id. at pp. 7-9.
II. RELEVANT LEGAL STANDARD
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs.,
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906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be
reversed only if the correct legal standards were not applied, or it was not supported by
substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there
is a reasonable basis for doubt whether the ALJ applied correct legal principles, application
of the substantial evidence standard to uphold a finding of no disability creates an
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unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to the correct legal principles.”); accord Grey v. Heckler, 721
F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Substantial
evidence” is evidence that amounts to “more than a mere scintilla,” and has been defined as
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“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed
susceptible to more than one rational interpretation, the Commissioner’s conclusion must be
upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
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“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner’s finding must be sustained “even where substantial
evidence may support the plaintiff’s position and despite that the court’s independent analysis
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of the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp.
147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s
determination considerable deference, and may not substitute “its own judgment for that of
the [Commissioner], even if it might justifiably have reached a different result upon a de
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novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984).
B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§
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404.1520 & 416.920. The Supreme Court has recognized the validity of this sequential
evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process
is as follows:
First, the [Commissioner] considers whether the claimant is currently engaged
in substantial gainful activity. If he is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which significantly limits his
physical or mental ability to do basic work activities. If the claimant suffers
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such an impairment, the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the [Commissioner] will
consider him disabled without considering vocational factors such as age,
education, and work experience; the [Commissioner] presumes that a claimant
who is afflicted with a “listed” impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant’s severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the claimant
is unable to perform his past work, the [Commissioner] then determines
whether there is other work which the claimant could perform. Under the
cases previously discussed, the claimant bears the burden of the proof as to the
first four steps, while the [Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d
146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made,
the SSA will not review the claim further.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
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III. ANALYSIS
A. Whether the RFC is Supported by Substantial Evidence
Plaintiff first contends that the RFC is not supported by substantial evidence because
the ALJ failed to rely on a medical opinion when assessing Plaintiff’s physical limitations
that result from her lower extremity impairments. Pl.’s Mem. of Law at pp. 8-11. Plaintiff
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contends that there is no medical opinion in the record regarding Plaintiff’s physical
limitations from an acceptable source, and that without such an opinion or treatment notes
containing assessments of Plaintiff’s RFC, it was improper for the ALJ to form an RFC. Id.
A claimant’s RFC is “the most [she] can still do despite [her] limitations.” 20 C.F.R.
§§ 404.1545(a)(1) & 416.945(a)(1).
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Although “[t]he RFC determination is reserved for the commissioner . . . an
ALJ’s RFC assessment is a medical determination that must be based on
probative evidence of record. . . . Accordingly, an ALJ may not substitute h[is]
own judgment for competent medical opinion.” Walker v. Astrue, No.
1:08CV00828(RJA)(JJM), 2010 WL 2629832, at *6 (W.D.N.Y. June 11,
2010) (internal citations and quotation marks omitted) (quoting Lewis v.
Comm’r of Soc. Sec., No. 6:00CV1225(GLS), 2005 WL 1899399, at *3
(N.D.N.Y. Aug. 2, 2005)). In that regard, “[t]he record must have more than
mere medical findings: [A]n ALJ is not qualified to assess a claimant’s RFC
on the basis of bare medical findings, and as a result an ALJ’s determination
of RFC without a medical advisor’s assessment is not supported by substantial
evidence.”
Barnes v. Berryhill, 2018 WL 1225542, at *4 (D. Conn. Mar. 9, 2018). As such, “[w]here
the medical findings in the record merely diagnose [the] claimant’s exertional impairments
and do not relate these diagnoses to specific residual functional capacities such as those set
out in 20 C.F.R. § 404.1567(a) . . . [the Commissioner may not] make the connection
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himself.” Walker v. Astrue, 2010 WL 2629832, at *6 (W.D.N.Y. June 11, 2010) (internal
quotation marks omitted) (citation omitted); see also Hilsdorf v. Comm’r of Soc. Sec., 724
F. Supp. 2d 330, 347 (E.D.N.Y. 2010) (“Because an RFC determination is a medical
determination, an ALJ who makes an RFC determination in the absence of a supporting
medical opinion has improperly substituted his own opinion for that of a physician. . .”).
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There are limited circumstances in which it may be proper for an ALJ to make an RFC
determination without a functional assessment from an acceptable medical source. First,
“where the medical evidence shows relatively little physical impairment, an ALJ permissibly
can render a common sense judgment about functional capacity even without a physician’s
assessment.” Walker v. Astrue, 2010 WL 2629832, at *7 (quoting Manso-Pizarro v. Sec. of
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Health and Human Servs., 76 F.3d 15, 17 (1st Cir. 1996)); see also Lewis v. Colvin, 2014
WL 6609637, at *6 (W.D.N.Y. Nov. 20, 2014). In addition, where “the record contains
sufficient evidence from which an ALJ can assess the [claimant’s] residual functional
capacity, a medical source statement or formal medical opinion is not necessarily required[.]”
Monroe v. Comm’r of Soc. Sec., 676 Fed. Appx. 5, 8-9 (2d Cir. 2017) (internal quotation
marks and internal citation omitted) (summary order); see also Pellam v. Astrue, 508 Fed.
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Appx. 87, 90 (2d Cir. 2013) (summary order) (finding ALJ’s RFC was supported by
substantial evidence where ALJ had all of the claimant’s treating physician’s treatment notes
and consulting examining physician’s opinion, which largely supported ALJ’s assessment
of RFC). Thus, if there is either extensive evidence demonstrating a claimant’s functional
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capacity, or if the evidence demonstrates that the resulting functional impairment is very
limited, it may be proper for an ALJ to draw his or her own functional assessment.
This is not a case where the evidence shows that Plaintiff’s physical impairments
would have a very limited impact on her functional abilities. See Hernandez v. Comm’r of
Soc. Sec., 2015 WL 275819, at *2 (N.D.N.Y. Jan. 22, 2015). Rather, there is evidence of
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Plaintiff attending the hospital in February and March of 2015 due to sudden onset of
weakness in the lower extremities (Tr. at p. 1325-29) and receiving four days of hospital
treatment for weakness and numbness in her lower extremities in May of 2015, with
followup at a neuromuscular clinic (Tr. at pp. 1087-1114); other treatment notes indicate
weakness and problems with her lower extremities in April of 2015 (Tr. at p. 1355); and
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Plaintiff’s medical records often indicate weakness or other limitations in her lower
extremities (Tr. at pp. 1354-55, 1125, 1223, & 1429). As such, there was medical evidence
in the record demonstrating that Plaintiff may have significant physical impairments due to
her weakness in her lower extremities; the ALJ therefore was not at liberty to make a
determination as to her RFC on the basis that the raw medical records clearly demonstrate
that Plaintiff’s physical impairments are not limiting.
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In addition, the evidence of record does not contain analysis demonstrating the
functional implication of Plaintiff’s conditions, from which the ALJ may have been able to
determine Plaintiff’s functional abilities. Rather, it is unclear on what the ALJ based the
conclusion that Plaintiff is able to, for example, occasionally balance, stoop, kneel, crouch,
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and crawl. Tr. at p. 22. The treatment notes in the record are bare medical findings, which
do not indicate Plaintiff’s physical limitations or functional capacity. “The record [ ]
contains neither a physical RFC assessment nor a medical source statement pertaining to
plaintiff’s physical capabilities, let alone one from a treating source.” Lawton v. Astrue, 2009
WL 2867905, at *16 (N.D.N.Y. Sept. 2, 2009). “Indeed, the only opinion as to [Plaintiff’s]
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physical limitations was provided by [ ] a non-treating, non-examining agency employee who
does not qualify as an acceptable medical source.” Gross v. Astrue, 2014 WL 1806779, at
*18-19 (W.D.N.Y. May 7, 2014) (collecting cases finding that agency consultants are not
acceptable medical sources and that RFC assessments by such individuals are not entitled to
weight); see also Lawton v. Astrue, 2009 WL 2867905, at *17. Indeed, the ALJ notes that
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Plaintiff’s treatment notes are “somewhat ambiguous regarding her functional status.” Tr.
at p. 24. These potential conflicts or inconsistencies in the medical record provide even more
reason that the ALJ should have obtained an opinion from a treating physician or consultative
examiner as to Plaintiff’s physical functional abilities.
Here, the ALJ “ma[de] a residual functional capacity determination based on medical
reports that do not specifically explain the scope of claimant’s work-related capabilities.”
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Woodford v. Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y. 2000). “Because there is no medical
source opinion supporting the ALJ’s finding that [Plaintiff] can perform sedentary work, the
court concludes that the ALJ’s RFC determination is without substantial support in the
record[.]” House v. Astrue, 2013 WL 422058, at *4 (N.D.N.Y. Feb. 1, 2013) (remanding for
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further proceedings).
B. Whether the ALJ Failed to Develop the Record in Regard to Plaintiff’s
Neurological Impairments
Plaintiff contends that the ALJ failed to develop the record in regards to Plaintiff’s
GBS, which Plaintiff alleges rendered her paralyzed from the waist down, and caused her to
have decreased strength in the lower extremities. Pl.’s Mem. of Law at pp. 11-14. Plaintiff
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argues that the ALJ erroneously found Plaintiff’s GBS to be nonsevere, and ignored relevant
evidence regarding the impairment, and failed to obtain further information from a physician;
Plaintiff additionally contends that the ALJ mischaracterized evidence and arbitrarily
determined that Plaintiff’s symptoms were attributable to peripheral neuropathy. Id.
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As discussed above, the Court is remanding this matter because the record is
underdeveloped regarding the functional implications of Plaintiff’s weakness in her lower
extremities. “As a general rule, where the transcript contains only diagnostic evidence and
no opinion from a medical source about functional limitations . . . , to fulfill the responsibility
to develop a complete record, the ALJ must recontact the treating source, order a consultative
examination, or have a medical expert testify at the hearing.” Gross v. Astrue, 2014 WL
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1806779, at *19 (quotation marks omitted) (citation omitted); see also Lawton v. Astrue,
2009 WL 2867905, at *16. As such, in failing to obtain a medical opinion as to Plaintiff’s
RFC, the ALJ failed to fully develop the record. In analyzing Plaintiff’s physical limitations
due to her impairments in her lower extremities and in developing the record regarding this
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on remand, the ALJ should consider evidence regarding the severity of Plaintiff’s GBS.
IV. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings (Dkt. No. 11) is
GRANTED; and it is further
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ORDERED, that Defendant’s Motion for Judgment on the Pleadings (Dkt. No. 14)
is DENIED; and it is further
ORDERED, that Defendant’s decision denying Plaintiff benefits is VACATED and
REMANDED pursuant to Sentence Four of section 405(g) for further proceedings; and it
is further
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ORDERED, that the Clerk of the Court serve a copy of this Decision and Order upon
the parties to this action.
Date: December 19, 2018
Albany, New York
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