Gipps v. Commissioner of Social Security

Filing 29

RULING granting 19 Motion for Judgment on the Pleadings; denying 27 Motion for Judgment on the Pleadings. This matter is remanded to the Commissioner for further administrative proceedings consistent with this opinion. On remand, the Commissioner shall address the other claims of error not discussed herein. Signed by Holly B. Fitzsimmons on 5/4/19. (AGE)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
------------------------------x
:
CHESSARAE D. GIPPS
:
:
v.
:
:
NANCY A. BERRYHILL, ACTING
:
COMMISSIONER, SOCIAL SECURITY :
ADMINISTRATION
:
:
------------------------------x

Civil No. 1:17CV01171 (HBF)

RULING ON CROSS MOTIONS
Plaintiff Chessarae D. Gipps brings this action pursuant to
42 U.S.C. §405(g), seeking review of a final decision of the
Commissioner of Social Security denying her application for
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Titles II

and XVI of the Social Security,

42 U.S.C. §401 et seq. (“the Act”). Plaintiff has moved to
reverse or remand the case for a rehearing. The Commissioner has
moved to affirm.
For the reasons set forth below, plaintiff’s Motion for
Judgment on the Pleadings [Doc. #19] is GRANTED. Defendant’s
Motion for Judgment on the Pleadings [Doc. #27] is DENIED.
I. ADMINISTRATIVE PROCEEDINGS
The procedural history of this case is not disputed.
Plaintiff protectively filed an application for DIB and SSI on

1

October 29, 2013, alleging disability as of July 28, 2012.1
[Certified Transcript of the Record, Compiled on March 10, 2018,
Doc. #7 (hereinafter “Tr.”) 19, 102-03; 190-91; 192-97].
Plaintiff alleged disability due to injury to her back and neck,
constant headaches and anxiety [Tr. 216]. Her claims were denied
on February 5, 2014. [Tr. 19, 102-03]. Plaintiff filed a timely
request for a hearing before an Administrative Law Judge (“ALJ”)
on February 25, 2014. [Tr. 118-20].
On March 24, 2016, Administrative Law Judge (“ALJ”) Bryce
Baird held a hearing, at which plaintiff appeared with counsel
and testified. [Tr. 46-101]. Vocational Expert Michele Erbacher
also testified at the hearing. [Tr. 91-99]. On September 1,
2016, the ALJ found that plaintiff was not disabled, and denied
her claim. [Tr. 16-40]. Plaintiff filed a timely request for
review of the hearing decision on October 24, 2016. [Tr. 14-15;
189]. On October 25, 2017, the Appeals Council denied review,
thereby rendering ALJ Baird’s decision the final decision of the
Commissioner. [Tr. 1-5]. The case is now ripe for review under
42 U.S.C. §405(g).
Plaintiff, represented by counsel, timely filed this action
for review and moves to reverse and/or remand the Commissioner’s
decision.

Plaintiff’s date last insured for Title II benefits is June 30,
2013. [Tr. 21].
1

2

II.

STANDARD OF REVIEW
The review of a social security disability determination

involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
the determination is supported by substantial evidence. Balsamo
v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted).
Substantial evidence is evidence that a reasonable mind would
accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The reviewing court’s responsibility is to ensure
that a claim has been fairly evaluated by the ALJ. Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation omitted).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.”). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
3

the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made
according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alteration added) (citation omitted). The ALJ is free to accept
or reject the testimony of any witness, but a “finding that the
witness is not credible must nevertheless be set forth with
sufficient specificity to permit intelligible plenary review of
the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988) (citation omitted). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, Civil Action No. 3:13-CV00073(JCH), 2014 WL 1304715, at *6 (D. Conn. Mar. 31, 2014)
(internal citations omitted).
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
4

determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (citations and internal quotation marks omitted).
“[W]hether there is substantial evidence supporting the
appellant’s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ’s
decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d
Cir. 2013)(citations omitted).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
To be considered disabled under the Act and therefore
entitled to benefits, Ms. Gipps must demonstrate that she is
unable to work after a date specified “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). Such impairment or impairments
must be “of such severity that [s]he is not only unable to do
h[er] previous work but cannot, considering h[er] age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.”
42 U.S.C. §423(d)(2)(A); see also 20 C.F.R. §404.1520(c)
5

(requiring that the impairment “significantly limit[ ] ...
physical or mental ability to do basic work activities” to be
considered “severe”).2
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §404.1520(a)(4). In the
Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary 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 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 Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
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
Secretary then determines whether there is other work
DIB and SSI regulations cited herein are virtually identical.
The parallel SSI regulations are found at 20 C.F.R. §416.901 et
seq., corresponding to the last two digits of the DIB cites
(e.g., 20 C.F.R. §404.1520 corresponds with 20 C.F.R. §416.920).
2

6

which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given his residual functional capacity.” Gonzalez ex rel. Guzman
v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243 (2d
Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)).
“Residual functional capacity” is what a person is still capable
of doing despite limitations resulting from her physical and
mental impairments. See 20 C.F.R. §§404.1545(a), 416.945(a)(1).
“In assessing disability, factors to be considered are (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.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978) (citation
omitted). “[E]ligibility for benefits is to be determined in
light of the fact that the Social Security Act is a remedial

7

statute to be broadly construed and liberally applied.” Id.
(citation and internal quotation marks omitted).
IV.

THE ALJ’S DECISION
Following the above-described five step evaluation process,

ALJ Baird concluded that plaintiff was not disabled under the
Social Security Act. [Tr. 16-45]. At step one, the ALJ found
that plaintiff had not engaged in substantial gainful activity
since July 28, 2012, the alleged onset date. [Tr. 21].
At step two, the ALJ found that plaintiff had cervicalgia,
lumbago, headaches/migraines, and depression with anxiety, all
of which are severe impairments under the Act and regulations.
[Tr. 22-23].
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
the severity of one of the listed impairments in 20 C.F.R. Pt.
404, Subpart P, Appendix 1. [Tr. 23]. The ALJ specifically
considered Listing 1.04 (disorders of the spine); 14.09
(inflammatory arthritis); 1.00 (musculoskeletal impairments;
11.00 (neurological disorders); 14.00 (impairments of the immune
system); 12.02 (organic mental disorders); 12.04 (affective
disorders); and 12.06 (anxiety related disorders). [Tr. 23-25].
The ALJ also conducted a psychiatric review technique and found
that plaintiff had a mild restriction in activities of daily
living or social functioning, and a moderate restriction in
8

concentration, persistence or pace. [Tr. 24]. The ALJ found no
episodes of decompensation. [Tr. 24].
Before moving on to step four, the ALJ found plaintiff had
the RFC
to perform the full range of light work, as defined
in 20 C.F.R. §404.1567(b) and 416.967(b) with
additional limitations. Specifically, the claimant
can occasionally lift and carry 20 pounds; can
frequently lift and carry 10 pounds; can sit for up
to 6 hours total in an 8-hour workday; and can stand
and/or walk for up to 6 hours total in an 8-hour
workday. She requires a sit/stand option that allows
her to stand, walk or stretch for up to 5 minutes
after sitting for 30 minutes, or sit for up to 5
minutes after standing or walking for 20, all while
remaining on task. She can frequently stoop, kneel,
or crouch; is unable to crawl or climb ladders,
ropes, scaffolds; can perform simple, routine tasks
that can be learned after a short demonstration or
within 30 days; and can perform work [that] would not
be of a repetitive nature, such as on a production
line.
[Tr. 25].
At step four, the ALJ found plaintiff was unable to
perform any past relevant work. [Tr. 37]. At step five,
after considering plaintiff’s age, education, work
experience and RFC, the ALJ found that jobs existed in
significant numbers in the national economy that plaintiff
could perform.3 [Tr. 37-40].

Plaintiff was born on March 13, 1983, and was 29 years old as
of the alleged onset date of July 28, 2012. [Tr. 190]. She is
currently 36 years old. She is right-handed. [Tr. 230].
Plaintiff completed 11th grade in high school and has not
obtained a GED. [Tr. 37]. She has past relevant work in
3

9

The ALJ concluded that plaintiff had not been under a
disability from July 28, 2012, the alleged onset date of
disability, through September 1, 2016, the date of the
ALJ’s decision.4 [Tr. 39].
V.

DISCUSSION
Plaintiff first argues that the “Commissioner erred in

substituting her own ‘medical’ judgment for that of any
physician.” [Doc. #19-1 at 16-20]. She contends that “the ALJ
erred by interpreting the raw medical data and objective
diagnostic and clinical findings to formulate Ms. Gipps’
function-by-function physical RFC without any medical
authority.” [Doc. #19-1 at 17].
She next argues that the ALJ erred in failing to provide
good reasons to discount the favorable opinion of the treating
pain management specialist Dr. Matteliano and in failing to
develop the record. [Doc. #19-1 at 20-28].
A.

Residual Functional Capacity
An ALJ has the responsibility to determine a claimant’s RFC

based on all the evidence of record. 20 C.F.R. §§404.1545(a)(1),
416.945(a)(1). The RFC is an assessment of “the most [the

housekeeping and as a certified nurses assistant (“CNA”). [Tr.
37].
4 SSI benefits are not payable for any period prior to the month
after the application is filed. See 42 U.S.C. §1382(c)(7); 20
C.F.R. §§416.335, 416.501. Plaintiff’s date last insured for
Title II benefits is June 30, 2013. [Tr. 21].
10

disability claimant] can still do despite [his or her]
limitations.” 20 C.F.R. §404.1545(a)(1), 416.945(a)(1). 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 his own judgment for competent medical
opinion.” Walker v. Astrue, No. 08-CV-0828(A)(M), 2010 WL
2629832, at *6 (W.D.N.Y. June 11, 2010)(quoting Lewis v. Comm’r
of Soc. Sec., No. 6:00CV1225(GLS), 2005 WL 1899, at *3 (N.D.N.Y.
Aug. 2, 2005)(internal citations omitted)). Nevertheless,
plaintiff has the burden to demonstrate functional limitations
that would preclude any substantial gainful activity. See 20
C.F.R. §§§404.1545(a)(3), 416.945(a)(3) (“In general, you are
responsible for providing the evidence we will use to make a
finding about your residual functional capacity.”); 42 U.S.C.
§423(d)(5)(A)(“An individual shall not be considered to be under
a disability unless he furnishes such medical and other evidence
of the existence thereof as the Commissioner of Social Security
may require.”).
Pursuant to 20 C.F.R. §§404.1527(c)(2) and 416.927(c)(2), a
treating source’s opinion will usually be given more weight than
a non-treating source. If it is determined that a treating
source’s opinion on the nature and severity of a plaintiff’s
impairment is “well-supported by medically acceptable clinical
11

and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [the] case record,” the
opinion is given controlling weight. 20 C.F.R. §§404.1527(c)(2),
416.927(c)(2). If the opinion, however, is not “well-supported”
by “medically acceptable” clinical and laboratory diagnostic
techniques, then the opinion cannot be entitled to controlling
weight. Id. If the treating source’s opinion is not given
controlling weight, the ALJ considers the following factors in
weighing the opinion: length of treatment relationship,
frequency of examination, nature and extent of the treatment
relationship, relevant evidence used to support the opinion,
consistency of the opinion with the entire record, and the
expertise and specialized knowledge of the source. See 20 C.F.R.
§§404.1527(c)(2)-(6), 416.927(c)(2)-(6); Social Security Ruling
(“SSR”) 96-2P, 1996 WL 374188, at *2 (S.S.A. July 2, 1996).
“While an ALJ may discount a treating physician's opinion if it
does not meet this standard, the ALJ must ‘comprehensively set
forth [his] reasons for the weight assigned to a treating
physician's opinion.’” Pilarski v. Comm'r of Soc. Sec., No. 13CV-6385-FPG, 2014 WL 4923994, at *2 (W.D.N.Y. Sept. 30,
2014)(quoting Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.
2004)).
Here, the ALJ found that plaintiff had the RFC
to perform the full range of light work, as defined
12

in 20 C.F.R. §404.1567(b) and 416.967(b) with
additional limitations. Specifically, the claimant
can occasionally lift and carry 20 pounds; can
frequently lift and carry 10 pounds; can sit for up
to 6 hours total in an 8-hour workday; and can stand
and/or walk for up to 6 hours total in an 8-hour
workday. She requires a sit/stand option that allows
her to stand, walk or stretch for up to 5 minutes
after sitting for 30 minutes, or sit for up to 5
minutes after standing or walking for 20, all while
remaining on task. She can frequently stoop, kneel,
or crouch; is unable to crawl or climb ladders,
ropes, scaffolds; can perform simple, routine tasks
that can be learned after a short demonstration or
within 30 days; and can perform work [that] would not
be of a repetitive nature, such as on a production
line.
[Tr. 25].
The regulations dictate the physical exertion
requirements of light work:
Light work involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight
lifted may be very little, a job is in this category
when it requires a good deal of walking or standing,
or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range
of light work, you must have the ability to do
substantially all of these activities. If someone can
do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to
sit for long periods of time.
20 C.F.R. §404.1567.
The administrative record in this case contains numerous
detailed treatment records, and medical opinions from treating
and other examining sources that relate the medical evidence to

13

what plaintiff can and cannot do functionally. Plaintiff
accurately points out that there are numerous disability
assessments, supported by functional limitation, by her treating
providers in the record and there is no dispute that plaintiff
was disabled from returning to her work as a Housekeeper and/or
CNA. [Tr. 37]. It is also undisputed that plaintiff did not work
after the first motor vehicle accident on July 28, 2012, that
the injuries sustained were due to the accident, and that
conservative treatment did not relieve her symptoms. After a
second motor vehicle accident on November 6, 2015, it is also
undisputed that plaintiff received medical attention and this
accident was an aggravating/activating event to a pre-existing
cervical and lumbar condition.
Notably, the ALJ did not rely on a treating doctor’s
opinion regarding plaintiff’s functional limitations in making
his RFC determination, as conceded by defendant. [Doc. #27-1 at
17-22; 33-34]. Our Circuit Court holds that “[i]n the absence of
supporting expert medical opinion, the ALJ should not engage in
his own evaluations of the medical findings.” Balsamo, 142 F.3d
at 81 (quoting Filocomo v. Chater, 944 F. Supp. 165, 170
(E.D.N.Y. 1996)).
During the relevant period under review, there is no
opinion of record by a treating physician or other medical
provider that plaintiff was able to work and/or was ready to
14

return to work or was capable of doing light work with the
limitations found by the ALJ.5 Rather, the ALJ’s decision in
large part indicates that he impermissibly assessed plaintiff’s
RFC on the basis of bare medical findings, and substituted his
own judgment for competent medical opinion. See Walker, 2010 WL
2629832, at *6.
This is not a case where plaintiff suffers relatively
little physical impairment, such that the ALJ may render a
common sense judgment about plaintiff’s functional capacity. The
ALJ acknowledged as much by designating plaintiff’s cervicalgia,
lumbago, headaches/migraines and depression with anxiety
“severe.” [Tr. 22].
Moreover, throughout the treating relationship with Dr.
Matteliano, the doctor opined that plaintiff was temporarily
totally disabled as a result of the motor vehicle accident in
July 2012 and was unable to return to her job. The treatment
notes contained detailed physical examination findings.
Thereafter, plaintiff was a passenger in a second motor vehicle
accident in November 2015. By then, plaintiff was no longer a

Plaintiff correctly points out that the ALJ gave Dr.
Balderman’s consultative evaluation “greater weight,” although
the ALJ admitted that “Dr. Balderman did not otherwise identify
limitations in plaintiff’s ability to sit, stand, walk, or use
her upper extremities.” [Tr. 29]. Moreover, Dr. Balderman did
not review any medical records, [Tr. 384], and evaluated
plaintiff on one occasion in January 2014.
5

15

patient of Dr. Matteliano due to a change in insurance coverage.
Plaintiff also treated with a primary care provider but was seen
by a nurse practitioner from September 2012 through March 2016.
[Tr. 640-70 (Treatment records Kathleen Ventry, ANP)]. These
treatment records also contain detailed examination findings. In
March 2016, a second set of cervical and lumbar MRIs were taken.
There is no assessment from a treating physician or specialist
in the record to compare the diagnostic imaging after the first
and second motor vehicle accidents. After the second motor
vehicle accident, plaintiff started pain management treatment
with Dr. Siddiqui. [Tr.100]. These treatment records are not
part of the administrative record.
Dr. Matteliano’s treatment notes include detailed notations
of physical examination of plaintiff’s musckuloskeletal system
(including gait, physical inspection, range of motion, cervical
rotation, lumbar flexion, side bending, trunk turning, strength,
straight leg raises, grip strength), observations, reports of
electronic diagnostic testing and psychiatric status. [Tr. 32562; 458-97; 489-505]. Similarly, Nurse Practitioner Ventry’s
treatment notes include physical examination notes including
musculoskeletal, neurologic findings and psychiatric status.
[Tr. 640-70]. After the second MVA, in January and February
2016, NP Ventry noted plaintiff was experiencing aggravated back
and neck pain and had developed increased nerve pain down her
16

right leg. [Tr. 642, 645]. However, the ALJ’s RFC determination
makes no mention of any additional functional limitations due to
the second MVA and there is no opinion or interpretation of the
2016 diagnostic imaging from a medical source. “When the record
contains medical findings merely diagnosing the claimant’s
impairments without relating that diagnosis to functional
capabilities, “the general rule is that the Commissioner may not
make the connection himself.’”
Kain v. Colvin, No. 14-CV-650S, 2017 WL 2059806, at *3 (W.D.N.Y.
May 15, 2017)(quoting Englert v. Colvin, 15-CV-564-FPG, 2016 WL
3745854, at *4 (W.D.N.Y. July 8, 2016)).
“Because the ALJ failed to cite to any medical opinion to
support his RFC findings, the Court is unable to determine if
the ALJ improperly selected separate findings from different
sources, without relying on any specific medical opinion.” Hogan
v. Astrue, 491 F. Supp. 2d 347, 354 (W.D.N.Y. 2007).
Where, as here, the medical findings and reports
merely diagnose the claimant's impairments without
relating the diagnoses to specific physical, mental,
and other work-related capacities, the administrative
law judge's “determination of residual functional
capacity without a medical advisor's assessment of
those capacities is not supported by substantial
evidence.” Given Plaintiff's multiple physical and
mental impairments, this is not a case where the
medical evidence shows “relatively little physical
impairment” such that the ALJ “can render a common
sense judgment about functional capacity.”

17

Palascak v. Colvin, No. 1:11-CV-0592 MAT, 2014 WL 1920510, at *9
(W.D.N.Y. May 14, 2014): see also Kain, 2017 WL 2059806, at *3
(“An 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.”)(quoting Englert, 2016
WL 3745854, at *4 )); House v. Astrue, No. 5:11-CV-915 GLS, 2013
WL 422058, at *4 (N.D.N.Y. Feb. 1, 2013)(“[A]lthough the RFC
determination is an issue reserved for the commissioner, an 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.”)(internal citation and quotation marks
omitted).
Because the ALJ did not give controlling weight to Dr.
Matteliano’s opinion and dismissed the opinions from other
treating medical sources, there is no medical opinion regarding
Gipps’ functional capacity to complete the activities for light
work with limitations as set forth in the RFC. [Tr. 33]; Martin
v. Berryhill, No. 16-CV-6184-FPG, 2017 WL 1313837, at *3
(W.D.N.Y. Apr. 10, 2017)(“Because the ALJ rejected Dr.
Finkbeiner’s opinion, the record lacks any medical opinion as to
Martin’s physical ability to engage in work at any exertional
level on a regular and continuous basis in an ordinary work
18

setting. There is no medical opinion regarding her capacity to
sit, stand, walk, or lift, which are necessary activities for
sedentary work. See 20 C.F.R. §§404.1567(a), 416.967(a).”).
While the Commissioner is free to decide that the opinions
of acceptable medical sources and other sources are entitled to
no weight or little weight, those decisions should be thoroughly
explained. Sears v. Astrue, Civil Action No. 2:11-CV-138, 2012
WL 1758843, at *3 (D. Vt. May 15, 2012). Indeed, when an ALJ
rejects all physician opinion evidence, an evidentiary deficit
exists. “[E]ven though the Commissioner is empowered to make the
RFC determination, ‘[w]here the medical findings in the record
merely diagnose [the] claimant’s exertional impairments and do
not relate those diagnoses to specific residual functional
capabilities,’ the general rule is that the Commissioner ‘may
not make the connection himself.’” Martin, 2017 WL 1313837, at
*3 (quoting Wilson v. Colvin, No. 13-CV-6286P, 2015 WL 1003933,
at *21 (W.D.N.Y. Mar. 6, 2015)).
“In light of the ALJ's affirmative duty to develop the
administrative record, an ALJ cannot reject [or ignore] a
treating physician's [opinion] without first attempting to fill
any clear gaps in the administrative record.” Burgess v. Astrue,
537 F.3d 117, 129 (2d Cir. 2008)(quoting Rosa v. Callahan, 168
F.3d 72, 79 (2d Cir. 1999)); see Schaal v. Apfel, 134 F.3d 496,
505 (2d Cir. 1998)(“Even if the clinical findings were
19

inadequate, it was the ALJ's duty to seek additional information
from [the treating physician] sua sponte.”)).
The proceedings before an ALJ are not supposed to be
adversarial. Where there are deficiencies in the
record, an ALJ is under an affirmative obligation to
develop a claimant's medical history “even when the
claimant is represented by counsel or ... by a
paralegal.” Perez v. Chater, 77 F.3d 41, 47 (2d
Cir.1996); see also Pratts v. Chater, 94 F.3d 34, 37
(2d Cir. 1996) (“It is the rule in our circuit that
‘the ALJ, unlike a judge in a trial, must herself
affirmatively develop the record’ in light of ‘the
essentially non-adversarial nature of a benefits
proceeding.’ This duty ... exists even when ... the
claimant is represented by counsel.” (quoting
Echevarria v. Secretary of Health & Human Servs., 685
F.2d 751, 755 (2d Cir. 1982))).
Richardson v. Barnhart, 443 F. Supp. 2d 411, 423 (W.D.N.Y.
2006).
Because there is no medical source opinion or
functional assessment supporting the ALJ’s finding that Ms.
Gipps can perform light work with limitations, the Court
concludes that the RFC determination is without substantial
support in the record and a remand for further
administrative proceedings is appropriate. See House, 2013
WL 422058, at *4 (citing Suide v. Astrue, 371 F. App’x 684,
689-90 (7th Cir. 2010) (holding that “the evidentiary
deficit left by the ALJ’s rejection” of a physician’s
reports, but not the weight afforded to the reports,
required remand.)).

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On remand, the ALJ should develop the record as
necessary to obtain opinions as to plaintiff’s functional
limitations from treating and/or examining sources, obtain
a consultative physical examination and/or a medical expert
review, obtain a functional capacity evaluation, and obtain
treatment records from the pain management treater, Dr.
Siddiqui [Tr. 100].
The Commissioner on remand should thoroughly explain
her findings in accordance with the regulations. See
Martin, 2017 WL 1313837, at *4 (“There were many avenues
available to the ALJ to fill the gap in the
record....”)(citing Covey v. Colvin, 204 F. Supp. 3d 497,
507 (W.D.N.Y. 2016)). The Commissioner on remand, “should
employ whichever of these methods are appropriate to fully
develop the record as to [Gipps’] RFC.” Id.
As noted earlier, the Court’s role in reviewing a
disability determination is not to make its own assessment
of the plaintiff’s functional capabilities; it is to review
the ALJ’s decision for reversible error. Because the Court
has found the ALJ erred in failing to develop the record,
it need not reach the merits of plaintiff’s remaining
arguments. Therefore, this matter is remanded to the
Commissioner for further administrative proceedings
consistent with this ruling. On remand, the Commissioner
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will address the other claims of error not discussed
herein.
The Court offers no opinion on whether the ALJ should
or will find plaintiff disabled on remand. Rather the Court
finds remand appropriate to permit the ALJ to develop the
record accordingly.
VI.

CONCLUSION
For the reasons stated, plaintiff’s Motion for Judgment on

the Pleadings [Doc. #19] is GRANTED. Defendant’s Motion for
Judgment on the Pleadings [Doc. #27] is DENIED.
In light of the Court’s findings above, it need not reach
the merits of plaintiff’s other arguments. Therefore, this
matter is remanded to the Commissioner for further
administrative proceedings consistent with this opinion. On
remand, the Commissioner shall address the other claims of error
not discussed herein.
This is not a Recommended Ruling.

The parties consented to

proceed before a United States Magistrate Judge [doc. #15] on
September 25, 2018, with appeal to the Court of Appeals. Fed.
R. Civ. P. 73(b)-(c).
SO, ORDERED at Bridgeport, Connecticut this 4th day of May
2019.
____/s/___________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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