Martin v. Colvin

Filing 13

DECISION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings 9 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 10 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 4/7/2017. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ALTHEA MARTIN,
Plaintiff,
Case # 16-CV-6184-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

Althea Martin (“Martin” or “Plaintiff”) brings this action pursuant to the Social Security
Act (“the Act”) seeking review of the final decision of the Acting Commissioner of Social
Security (“the Commissioner”) that denied her applications for disability insurance benefits
(“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act. ECF
No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 9, 10. For the reasons that follow, Plaintiff’s motion is GRANTED,
the Commissioner’s motion is DENIED, and this matter is REMANDED to the Commissioner
for further administrative proceedings.
BACKGROUND
On December 19, 2011, Martin applied for DIB and SSI with the Social Security
Administration (“the SSA”). Tr.2 168-80. She alleged that she had been disabled since June 1,
2010 due to knee and hip pain. Tr. 212. On January 3, 2014, a hearing was held before
Administrative Law Judge Brian Kane (“the ALJ”), in which Martin and a vocational expert

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Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
2
References to “Tr.” are to the administrative record in this matter.

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(“VE”) appeared and testified. Tr. 26-67. On April 9, 2014, the ALJ issued a decision finding
that Martin was not disabled within the meaning of the Act. Tr. 11-21. On January 20, 2016, the
Appeals Council denied Martin’s request for review. Tr. 1-7. Thereafter, Martin commenced
this action seeking review of the Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the SSA, this Court is limited to 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) (internal quotation
marks omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner
is “conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (internal quotation marks omitted). It is not the Court’s function to “determine de
novo whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)
(internal quotation marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary’s decision is not de novo and
that the Secretary’s findings are conclusive if supported by substantial evidence).
II.

Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial
gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,

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the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

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DISCUSSION
I.

The ALJ’s Decision
The ALJ’s decision analyzed Martin’s claim for benefits under the process described

above. At step one, the ALJ found that Martin had not engaged in substantial gainful activity
since her alleged onset date. Tr. 13. At step two, the ALJ found that Martin has the following
severe impairments: left knee osteoarthritis, left hip bursitis, and anxiety and depressive
disorders. Tr. 13. At step three, the ALJ found that such impairments, alone or in combination,
did not meet or medically equal an impairment in the Listings. Tr. 13-15.
Next, the ALJ determined that Martin retained the RFC to perform sedentary work3 with
additional limitations. Tr. 15-19. Specifically, the ALJ found that Martin can sit up to six hours
and stand and/or walk up to two hours in an eight-hour workday; can lift and/or carry up to 10
pounds frequently and 20 pounds occasionally; must be able to change leg positions at will; and
can only perform work with “Specific Vocational Preparation” (“SVP”) levels that do not exceed
three or four due to her mental impairments. Tr. 15.
At step four, the ALJ relied on the VE’s testimony found that this RFC prevents Martin
from performing her past relevant work. Tr. 19-20. At step five, the ALJ relied on the VE’s
testimony and found that Martin can adjust to other work that exists in significant numbers in the
national economy given her RFC, age, education, and work experience. Tr. 20-21. Specifically,
the VE testified that Martin could work as a small parts assembler, a telephone quote clerk, and
an order clerk. Tr. 20. Accordingly, the ALJ concluded that Martin was not “disabled” under
the Act. Tr. 21.

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“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).

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II.

Analysis
Martin argues that remand is required because the ALJ created a gap in the record that he

was obligated to develop when he rejected the only medical opinion as to her physical functional
capacity.4 ECF No. 9-1, at 14-17. The Court agrees.
The ALJ has an affirmative duty to develop the administrative record due to the
“essentially non-adversarial nature of a benefits proceeding.” Pratts v. Chater, 94 F.3d 34, 37
(2d Cir. 1996). Specifically, the ALJ must develop a claimant’s “complete medical history” for
at least the 12 months preceding the month in which the claimant filed his or her application. 20
C.F.R. §§ 404.1512(b), 416.912(b). The ALJ must “make every reasonable effort” to help the
claimant get medical reports from his or her medical sources as long as the claimant has
permitted the ALJ to do so. Id. Remand is warranted if the ALJ fails to fulfill his or her duty to
develop the record. Pratts, 94 F.3d at 39. On the other hand, where there are no “obvious gaps”
in the record and a “complete medical history” exists, the ALJ is not obligated to seek additional
evidence. Rosa, 168 F.3d at 79 n.5.
Here, the ALJ gave “little weight” to the opinion of Martin’s treating orthopedic surgeon
Gregory Finkbeiner, M.D. (“Dr. Finkbeiner”). Tr. 18-19. The ALJ concluded that this opinion
was entitled to little weight because it was not supported by the record as a whole or certain
physical therapy records and was inconsistent with Martin’s daily activities. Tr. 19. Regardless
of whether the ALJ properly discounted this opinion, his rejection of the only medical opinion as
to Martin’s physical functional capabilities left a significant gap in the record. See Covey v.
Colvin, 204 F. Supp. 3d 497, 507 (W.D.N.Y. 2016) (noting that the ALJ’s rejection of the
treating physician’s opinion created a “significant and obvious gap in the evidentiary record”

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Martin advances another argument that she believes requires reversal of the Commissioner’s decision. ECF
No. 9-1, at 10-14. However, because the Court disposes of this matter based on the ALJ’s failure to develop the
record, that argument need not be reached.

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because “the record contained no competent medical opinion regarding Plaintiff’s RFC during
the relevant time period”) (emphasis in original).
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 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). Yet the ALJ, who is not a medical professional, somehow determined
that Martin could perform sedentary work with specific additional limitations. Tr. 15; see
Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“[J]udges, including administrative law
judges of the [SSA], must be careful not to succumb to the temptation to play doctor.”).
Although the Commissioner argues that there was no error because “the ALJ relied on the
totality of the evidence to assess Plaintiff’s RFC,” ECF No. 10-1, at 22-25, it is well-settled that
“[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.” Wilson v. Colvin, No. 13-CV-6286P, 2015 WL 1003933, at
*21 (W.D.N.Y. Mar. 6, 2015) (citation omitted). Thus, even 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.” Id. (citation omitted). Depending on the circumstances, like when the
medical evidence shows only minor physical impairments, “an ALJ permissibly can render a
common sense judgment about functional capacity even without a physician’s assessment.” Id.
(citation omitted).

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Here, the ALJ was not permitted to render a common sense judgment about Martin’s
functional capacity because the treatment notes that the ALJ relied on contain complex medical
findings (see, e.g., Tr. 321-22, 325, 342-43, 345-46, 351-52, 355-64, 388-91, 400, 402-04, 419)
and the ALJ found that Martin had two severe physical impairments (i.e. left knee osteoarthritis
and left hip bursitis). See, e.g., Palascak v. Colvin, No. 1:11-CV-0592 (MAT), 2014 WL
1920510, at *9 (W.D.N.Y. May 14, 2014) (“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.’”) (citation omitted).
Moreover, the Court is not persuaded by the Commissioner’s argument that Martin’s
counsel should have submitted additional evidence to complete the record. ECF No. 10-1, at 2324. First, it is well-established that the ALJ’s affirmative duty to develop the record exists even
when the claimant is represented by counsel. Pratts, 94 F.3d at 37. Second, Martin submitted
Dr. Finkbeiner’s medical opinion, but the ALJ rejected that opinion and then improperly based
his RFC determination solely on bare medical evidence. There were many avenues available to
the ALJ to fill the gap in the record: he could have requested additional information from Dr.
Finkbeiner, obtained a consultative examination, or sought a medical expert opinion. Covey, 204
F. Supp. 3d at 507 (citation omitted). On remand, the Commissioner should employ whichever
of these methods are appropriate to fully develop the record as to Martin’s RFC.
CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 9) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 10) is DENIED, and this
matter is REMANDED to the Commissioner for further administrative proceedings consistent

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with this opinion, pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d
117, 124 (2d Cir. 2000); 42 U.S.C. § 1383(c)(3). The Clerk of Court is directed to enter
judgment and close this case.
IT IS SO ORDERED.
Dated: April 7, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court 

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