Oldham v. Colvin

Filing 13

DECISION AND ORDER granting 8 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 10 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/20/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CHENETA L. OLDHAM,
Plaintiff,
-vs-

No. 1:16-CV-00320 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Cheneta L. Oldham (“plaintiff”) brings

this action pursuant to Title II of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying her application for
disability insurance benefits (“DIB”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, plaintiff’s motion is
granted

to

the

extent

that

this

case

is

remanded

to

the

Commissioner for further administrative proceedings consistent with
this Decision and Order.
II.

Procedural History
The record reveals that in December 2012, plaintiff (d/o/b

July 26, 1961) applied for DIB, alleging disability as of January
2010. After her application was denied, plaintiff requested a
hearing, which was held before administrative law judge Robert T.
Harvey (“the ALJ”) on July 17, 2014. The ALJ issued an unfavorable

decision on October 7, 2014. The Appeals Council denied review of
that decision and this timely action followed.
III. The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Social Security Act through December 31, 2016.
At step one of the five-step sequential evaluation, see 20 C.F.R.
§ 404.1520, the ALJ determined that plaintiff had not engaged in
substantial gainful activity since January 1, 2010, the alleged
onset date. At step two, the ALJ found that plaintiff suffered from
bilateral carpal tunnel syndrome and hypertension, impairments
which the ALJ considered severe. At step three, the ALJ found that
plaintiff did not have an impairment or combination of impairments
that

met

or

medically

equaled

the

severity

of

any

listed

impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
RFC to perform light work as defined in 20 C.F.R. § 404.1567(b)
except that she could not work in an area with unprotected heights;
she could not work around heavy, moving, or dangerous machinery;
she

could

occasional

not

climb

limitations

ropes,
in

ladders,

the

ability

or
to

scaffolds;
handle,

she

via

had

gross

manipulation; and she had occasional limitations in the repetitive
use of her hands. At step four, the ALJ found that plaintiff could
not perform any past relevant work. At step five, the ALJ found
that considering plaintiff’s age, education, work experience, and
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RFC, jobs existed in the national economy which plaintiff could
perform. Accordingly, he found that plaintiff was not disabled.
IV.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Plaintiff contends that the ALJ erred in determining her RFC
without first fully developing the record by obtaining complete
medical records and obtaining a treating source opinion regarding
her physical work-related limitations. As the ALJ acknowledged in
his decision, “the record does not contain any opinions from
treating or examining physicians indicating that [plaintiff] [was]
disabled or even [had] limitations greater than those determined in
[the ALJ’s decision].” T. 16. For the reasons discussed below, the
Court concludes that the ALJ failed to fully develop the record in
this case.
Plaintiff first contends that the ALJ failed to obtain a
complete record of plaintiff’s medical treatment. In her counseled
brief,

plaintiff

refers

to

“[p]ages

from

treatment

notes,

examination records, and crucial studies . . ., including an upper
3

extremity EMG and NCV [nerve conduction velocity test], which
[p]laintiff’s hand specialist stated had shown severe pathology,
years before.” Doc. 8-1 at 21. In a November 2013 treatment note,
plaintiff’s treating hand specialist Dr. Dale Miller noted that an
electrodiagnostic test was performed in 2009. Dr. Wheeler’s note
makes it clear that this testing indicated to him that plaintiff
should undergo

surgery,

and

“[n]ow

4

years

later

[he]

would

strongly suggest that she consider surgical intervention . . .
rather than continuing injection.” T. 269. In his consulting
examination, state agency physician Dr. Samuel Balderman noted
that, based on his examination, plaintiff had mild limitation in
repetitive motor work with the hands, but stated that plaintiff’s
“nerve

conduction

studies

should

be

reviewed

for

clinical

correlation.” T. 241. As it does appear that those studies are
missing from the record, the Court agrees with plaintiff that the
medical record was not complete for purposes of evaluation of
plaintiff’s carpal tunnel syndrome.
As plaintiff points out, an ALJ has a heightened duty to
develop the record in the case of a pro se plaintiff. See Marshall
v. Colvin, 2013 WL 5878112, *10 (W.D.N.Y. Oct. 30, 2013). This
heightened

duty

requires

an

ALJ

to

“advise[]

[p]laintiff

to

supplement her medical records with a treating physician’s opinion
on her functional capabilities or have contacted her treating
sources personally to obtain an RFC assessment.” Id. (“The ALJ’s
failure

to

develop

the

record

4

with

medical

opinions

from

Plaintiff's treating sources undercut his ability to adequately
determine Plaintiff's RFC adequately.”); see also Echevarria v.
Sec’y of Health & Human Servs., 685 F.2d 751, 755 (2d. Cir. 1982)
(stating that the ALJ has a heightened duty “to scrupulously and
conscientiously probe into, inquire of, and explore for all the
relevant facts” with pro se claimants) (internal quotation marks
omitted); Myers v. Astrue, 2009 WL 2162541, *3 (N.D.N.Y. July 17,
2009)(stating that “it was incumbent upon the ALJ to encourage
plaintiff to obtain an opinion from her treating physicians. In the
alternative, the ALJ should have attempted to obtain an opinion
directly from [her treating physicians]”).
Here, although the ALJ advised plaintiff of her right to have
an attorney or representative present, and gave her an opportunity
to do so, he did not explain to plaintiff the importance of
obtaining an opinion from a treating physician. In formulating
plaintiff’s RFC, the ALJ relied solely on an opinion from one-time
consulting examiner Dr. Balderman, instead of obtaining an opinion
from plaintiff’s treating hand specialist, Dr. Wheeler. Treatment
notes from Dr. Wheeler indicate that he treated plaintiff regularly
during the relevant time period and that he believed plaintiff’s
carpal tunnel syndrome required surgery. The ALJ should have
explained to plaintiff the importance of obtaining a functional
report from Dr. Wheeler, or in the alternative attempted to obtain
the opinion directly from Dr. Wheeler.

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Accordingly, this case is reversed and remanded for full
development of the record. On remand, the ALJ is directed to ensure
that

the

administrative

record

is

complete

with

regard

to

plaintiff’s treating medical records. The ALJ is also directed to
obtain

a

treating

source

opinion

from

Dr.

Wheeler

regarding

plaintiff’s functional limitations during the relevant time period.
The Court declines to address plaintiff’s remaining arguments
regarding RFC and credibility, because further development of the
record may affect the ALJ’s determinations regarding these issues.
V.

Conclusion
For the foregoing reasons, the Commissioner’s motion for

judgment on the pleadings (Doc. 10) is denied and plaintiff’s
motion (Doc. 8) is granted to the extent that this matter is
remanded to the Commissioner for further administrative proceedings
consistent with this Decision and Order.

The Clerk of the Court is

directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 20, 2017
Rochester, New York.

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