Dodd v. Colvin

Filing 20

DECISION AND ORDER granting 11 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 15 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/8/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LOIS DODD,
Plaintiff,
-vs-

No. 1:16-CV-00826 (MAT)
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented by counsel, plaintiff Lois Dodd (“Plaintiff”)

brings this action pursuant to Title II of the Social Security Act
(the “Act”), seeking review of the final decision of defendant the
Acting Commissioner of Social Security1 (the “Commissioner” or
“Defendant”) denying her application for disabled widow’s benefits
(“DWB”). 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, and the
Commissioner’s motion is denied.

1
Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

II.

Procedural History
Plaintiff

protectively

filed

an

application

for

DWB

on

November 5, 2012, alleging disability as of March 1, 2010 due to
high blood pressure, carpal tunnel syndrome, arthritis, hepatitis
C, and vertigo.
Plaintiff’s

Administrative Transcript (“T.”) 161-62, 186.

application

was

initially

denied.

T.

75.

At

Plaintiff’s request, a hearing was held before administrative law
judge (“ALJ”) William M. Weir on August 11, 2014.

T. 26-54.

On

March 27, 2015, the ALJ issued a partially favorable decision in
which he found that Plaintiff had not been disabled from the
alleged onset date through February 28, 2015, but had become
disabled on March 1, 2015.

T. 12-21.

On August 24, 2016, the

Appeals Council denied Plaintiff’s request for review, rendering
the ALJ’s determination the Commissioner’s final decision. T. 1-3.
This action followed.
III. The ALJ’s Decision
“To prevail on her widow’s benefits claim, [Plaintiff] had to
show that (1) she is the widow of a wage earner who died fully
insured; (2) she is at least 50, but less than 60 years old;
(3) she is disabled; and (4) her disability commenced within seven
years of the month in which the wage earner died.”

Miller v.

Comm’r of Soc. Sec. Admin., 988 F. Supp. 2d 347, 357 (E.D.N.Y.
2013).

In determining whether Plaintiff was disabled, the ALJ

applied the five-step sequential evaluation set forth in 20 C.F.R.
§§ 404.1520, 416.920.

2

Initially, the ALJ determined that Plaintiff was the unmarried
widow of a deceased insured worker, had attained the age of 50, and
met the non-disability requirements for DWB.

T. 14.

The ALJ

further found that the prescribed period in which Plaintiff was
required to establish that her disability began would end on
February 29, 2020.

Id.

At step one of the five-step sequential evaluation, the ALJ
determined that Plaintiff had not engaged in substantial gainful
activity since March 1, 2010, the alleged onset date.
two,

the

ALJ

found

that

Plaintiff

suffered

Id.

from

At step

the

severe

impairments of osteoarthritis, obesity, vertigo, degenerative disc
disease of the lumbar spine, and carpal tunnel syndrome.

T. 15.

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.

Id. The ALJ

particularly considered Listings 1.02 (major dysfunction of a joint
due to any cause) and 1.04 (disorders of the spine) in reaching
this determination.

T. 15-16.

Before proceeding to step four, the ALJ determined that since
March 1, 2010, Plaintiff retained the RFC to perform the full range
of light work as defined in 20 C.F.R. § 404.1567(b), with the
following
unprotected

non-exertional
heights

or

limitations:
around

occasionally use her hands.

should

dangerous

T. 16.

3

not

machinery;

work

at

and

can

At step four, the ALJ found that Plaintiff had no past
relevant work.

T. 19.

At step five, the ALJ relied on the

Medical-Vocational Guidelines to conclude that, prior to March 1,
2015, considering Plaintiff’s age, education, work experience, and
RFC, there were jobs that exist in significant numbers in the
national economy that Plaintiff could perform.

T. 20.

The ALJ

further relied on the Medical-Vocational Guidelines to find that as
of March 1, 2015, when Plaintiff became an “individual of advanced
age,” considering Plaintiff’s age, education, work experience, and
RFC, there were no jobs that exist in significant numbers in the
national economy that Plaintiff could perform.

Id.

Accordingly,

the ALJ found that Plaintiff was not disabled prior to March 1,
2015, but that she became disabled on that date and continued to be
disabled through the date of the ALJ’s decision.
IV.

Id.

Discussion
A.
A

Scope of Review
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) (internal quotation
omitted).

Although the reviewing court must scrutinize the whole

4

record and examine evidence that supports or detracts from both
sides, Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted), “[i]f there is substantial evidence to support the
[Commissioner’s] determination, it must be upheld.” Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013). “The deferential standard
of

review

for

substantial

evidence

Commissioner’s conclusions of law.”

does

not

apply

to

the

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003).
Here, Plaintiff contends that the ALJ erred in finding that
she was not disabled prior to March 1, 2015.

In particular,

Plaintiff argues the ALJ improperly evaluated her carpal tunnel
syndrome, including by relying on a stale medical opinion and by
failing to develop the record.
the

Court

finds

that

For the reasons set forth below,

remand

of

this

matter

for

further

administrative proceedings is necessary.
B.

Consideration of Plaintiff’s Carpal Tunnel Syndrome

Plaintiff argues that remand of this matter for further
administrative proceedings is required because the ALJ did not
properly consider

the

scope and

impact

of her

carpal tunnel

syndrome, resulting in an RFC finding not supported by substantial
evidence.

The

Court

agrees

with

Plaintiff

that

the

ALJ’s

consideration of her carpal tunnel syndrome was inadequate and that
further development of the record and additional administrative
proceedings are necessary.

5

Consultative physician Dr. Donna Miller examined Plaintiff on
February 15, 2013.

T. 277-81.

Plaintiff reported a history of

bilateral carpal tunnel syndrome, and told Dr. Miller that her
doctor had recommended surgery, but she wanted to proceed with more
conservative
Dr.

Miller

treatment.
found

that

T.

277.

Plaintiff

On
had

physical

intact

examination,

hand

and

finger

dexterity and full grip strength bilaterally, as well as a full
range of motion in her wrists and forearms.

T. 280.

Dr. Miller

assessed Plaintiff with bilateral carpal tunnel syndrome and opined
that she had a mild limitation in performing repetitive motion with
her hands and wrists.

Id.

On July 21, 2013, more than five months after her examination
by Dr. Miller, Plaintiff reported to the emergency room due to pain
and swelling in her right hand.

T. 299-307.

Plaintiff was in a

moderate amount of pain and had a limited range of motion in the
right hand and wrist.

T. 300-301.

She was discharged in stable

condition with instructions to follow-up with her primary care
physician.

T. 301.

Dr. Nyathappa Anand examined Plaintiff on March 11, 2014, and
assessed her with moderate to severe bilateral carpal tunnel
syndrome.

T. 396.

Plaintiff had a positive Tinel sign in both

hands and her finger grip was 4+/5 bilaterally.

Id.

Dr. Anand

ordered an EMG nerve conduction study to assess the severity of the
carpal tunnel syndrom (id); however, no EMG study results appear in
the record.

6

At the hearing, Plaintiff testified that her carpal tunnel
syndrome had worsened about one year prior (roughly around the time
she reported to the emergency room) and that her fingers had
started to become numb.

T. 44.

Plaintiff further testified that

she had undergone surgery for her carpal tunnel syndrome, that her
dominant right hand was worse than her left hand, and that she was
unable to do things such as open bottles, use a can opener, use
buttons or zippers, or hold a cup or silverware.

T. 45-46.

Plaintiff also reported that she had recently started physical
therapy.

T. 47.

On August 7, 2014, prior to the administrative hearing,
Plaintiff’s counsel sent a letter to the ALJ in which she stated
that her office had been unable, despite multiple attempts, to
obtain medical records from treating source Community Health Center
of Niagara.

T. 223.

Plaintiff’s counsel requested the ALJ’s

assistance in obtaining these records, including issuance of a
subpoena if necessary. Id.

At the hearing, Plaintiff’s attorney

raised this issue with the ALJ, noting that Plaintiff had requested
assistance in obtaining these records and specifically informing
the ALJ that Plaintiff had undergone surgery for her carpal tunnel
syndrome.

T. 36.

The ALJ stated that he would be “happy to do

that to make sure the record is complete as possible.”

Id.

However, the record does not contain any indication that the ALJ in
fact made any attempts to obtain these records, such as issuing a
subpoena.

7

In his decision, in considering Plaintiff’s carpal tunnel
syndrome, the ALJ recited Dr. Miller’s findings and opinion.
T. 17.

The ALJ further noted that Plaintiff’s carpal tunnel

syndrom had “flare[d] up” in July 2013 and that a March 2014
examination had revealed moderate to severe bilateral carpal tunnel
syndrome. Id.

Without any mention of the Plaintiff’s testimony

that she had undergone surgery for her carpal tunnel syndrome, the
ALJ then asserted that “nothing in the record shows [an EMG study]
was ever done or that corrective surgery was appropriate.”

Id.

The ALJ ultimately assigned “significant weight” to Dr. Miller’s
opinion and, as set forth above, found that Plaintiff was capable
of occasionally using her hands. T. 16, 19.
The Court agrees with Plaintiff that the ALJ’s consideration
of her carpal tunnel syndrome was wholly inadequate.

“It is well

settled that the ALJ has an affirmative duty to develop the record
in a disability benefits case, and that remand is appropriate where
this duty is not discharged. . . .

Encompassed in this duty is the

requirement that an ALJ assemble the claimant’s complete medical
history and re-contact treating physicians or obtain consultative
examinations

where

the

information

received

is

inadequate

to

determine whether the claimant is disabled.” Weed Covey v. Colvin,
96

F.

Supp.

3d

14,

29

(W.D.N.Y.

2015)

(internal

quotations

omitted); see also Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)
(“where there are deficiencies in the record, an ALJ is under an
affirmative obligation to develop a claimant’s medical history even

8

when the claimant is represented by counsel”) (internal quotation
omitted).
In this case, the record was clearly incomplete with respect
to Plaintiff’s carpal tunnel syndrome.

The record did not contain

any EMG study results despite the fact that such a study had been
ordered, nor did it have any information related to the surgery
that Plaintiff testified to having undergone or to her physical
therapy treatments. Significantly, Plaintiff’s counsel expressly
identified this issue for the ALJ, and requested assistance in
obtaining additional records.

Inexplicably, the ALJ does not

appear to have made any effort to provide such assistance, despite
having stated at the hearing that he would be happy to do so.

As

such,

in

the

Court

finds

that

there

existed

an

obvious

gap

Plaintiff’s medical history and that the ALJ’s failure to take
reasonable steps to fill in this gap was error and necessitates
remand.
The Court further agrees with Plaintiff that Dr. Miller’s
opinion did not constitute substantial evidence in support of the
ALJ’s conclusion that Plaintiff could occasionally use her hands.
The evidence of record in this case demonstrated that Plaintiff’s
carpal

tunnel

syndrome

Dr. Miller’s examination.

had

significantly

worsened

after

Indeed, by March 2014, Plaintiff’s

physician had rated her carpal tunnel syndrome as moderate to
severe. “[M]edical source opinions that are . . . stale[ ] and
based on an incomplete medical record may not be substantial
evidence to support an ALJ finding.”
9

Camille v. Colvin, 104 F.

Supp. 3d 329, 343-44 (W.D.N.Y. 2015), aff’d, 652 F. App’x 25 (2d
Cir.

2016)

(quotation

marks

and

citation

omitted);

see

also

Girolamo v. Colvin, 2014 WL 2207993, at *7-8 (W.D.N.Y. May 28,
2014) (ALJ

should

not

have

afforded

great

weight

to

medical

opinions rendered before plaintiff’s second surgery); Jones v.
Comm’r of Soc. Sec., 2012 WL 3637450, at *2 (E.D.N.Y. Aug. 22,
2012) (ALJ should not have relied on a medical opinion in part
because it was 1.5 years stale as of the plaintiff’s hearing date
and did not account for her deteriorating condition).

In this

case, Dr. Miller’s opinion was issued over a year before the
hearing, prior to the worsening of Plaintiff’s carpal tunnel
syndrome and her subsequent surgery.

As such, it was stale and

could not constituted substantial evidence for the ALJ’s RFC
finding. Remand for further administrative proceedings is further
warranted on this basis.
V.

Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on

the pleadings (Docket No. 11) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings

consistent

with

this

Decision

and

Order.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 15)
is denied. 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 8, 2018
Rochester, New York.
10