Rogers v. Colvin
DECISION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings 11 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 12 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 8/14/2017. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEADRIA MICHELLE ROGERS,
Case # 16-CV-6349-FPG
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Deadria Michelle Rogers (“Rogers” 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. 11, 12. 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.
On September 18 and October 15, 2012, Rogers applied for SSI and DIB with the Social
Security Administration (“the SSA”). Tr.2 151-58. She alleged disability since June 7, 2012 due
to malignant essential hypertension, migraines, back pain, and shoulder and hand arthritis. Tr.
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).
References to “Tr.” are to the administrative record in this matter.
192. On July 22, 2014, Rogers and a vocational expert (“VE”) testified at a hearing before
Administrative Law Judge Michael W. Devlin (“the ALJ”). Tr. 46-70. On October 20, 2014, the
ALJ issued a decision finding that Rogers was not disabled within the meaning of the Act. Tr. 2840. On March 31, 2016, the Appeals Council denied Rogers’s request for review. Tr. 1-7.
Thereafter, Rogers commenced this action seeking review of the Commissioner’s final decision.
ECF No. 1.
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) (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)
(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) (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).
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, 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).
The ALJ’s Decision
The ALJ’s decision analyzed Rogers’s claim for benefits under the process described
above. At step one, the ALJ found that Rogers had not engaged in substantial gainful activity since
July of 2013. Tr. 31. At step two, the ALJ found that Rogers has the following severe
impairments: spinal derangement with lower back pain, left shoulder impairment, hypertension,
migraine headaches, and obesity. Tr. 31-33. At step three, the ALJ found that these impairments,
alone or in combination, did not meet or medically equal any Listings impairment. Tr. 34.
Next, the ALJ determined that Rogers retained the RFC to perform sedentary work3 with
additional limitations. Tr. 34-39. Specifically, the ALJ found that Rogers can frequently reach,
handle, and finger bilaterally; can occasionally push and pull 10 pounds, climb ramps and stairs,
balance, stoop, kneel, crouch, and crawl; and cannot climb ladders, ropes, or scaffolds. Tr. 34.
At step four, the ALJ relied on the VE’s testimony and concluded that Rogers is unable to
perform her past relevant work. Tr. 39. At step five, the ALJ relied on the VE’s testimony and
found that Rogers can adjust to other work that exists in significant numbers in the national
economy given her RFC, age, education, and work experience. Tr. 39-40. Specifically, the VE
testified that Rogers could work as a preparer and order clerk. Tr. 40. Accordingly, the ALJ
concluded that Rogers was not “disabled” under the Act. Tr. 40.
“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).
Rogers argues that remand is required because the ALJ failed to develop the record.4 ECF
No. 11-1, at 15-22. Specifically, Rogers asserts that there was a gap in the record as to her mental
impairments and that the ALJ used his lay opinion to determine that her mental impairments did
not affect her ability to work. Id. The Court agrees.
Medical Evidence Related to Rogers’s Mental Impairments
The subjective and objective evidence demonstrates that Rogers had mental health
impairments. Rogers testified at her hearing, for example, that she had been “having a lot of
anxiety” that made it “hard to concentrate.” Tr. 58. A May 21, 2012 treatment note indicated that
Rogers was “stressed” and “having difficulty with work.” Tr. 374.
On July 17, 2014, Rogers reported to Licensed Medical Social Worker Natalie
McLarenneil (“LMSW McLarenneil”) that she was “overwhelmed, anxious, and depressed.” Tr.
655. LMSW McLarenneil noted that Rogers had a history of abuse and domestic violence, suicide
attempts, overdosing on muscle relaxers, and cutting her wrists. Id. Rogers’s symptoms included
crying spells, feeling on edge, a sense of impending doom, racing thoughts, depressed mood,
uncontrolled worry, paranoia, and negative rumination. Id. Rogers was paranoid that “people are
talking about her, which results in her getting into altercations.” Id. Rogers also reported that her
depressive and anxious episodes were circumstantial and stress-related. Id. LMSW McLarenneil
noted that she thought Rogers’s partner “may be emotionally abusive” but that Rogers “does not
identify him this way [and] would benefit from education on different types of abuse.” Tr. 657.
Rogers advances another argument that she believes warrants reversal of the Commissioner’s decision. ECF
No. 11-1, at 22-27. However, the Court will not address that argument because it disposes of this matter based on the
ALJ’s failure to develop the record.
LMSW McLarenneil performed a mental status examination and reported that Rogers was
malodorous; had indirect eye contact; displayed anxious mood; had circumstantial and tangential
thought processes and negative and preoccupied thought content; and displayed only “fair”
concentration and impulse control, “limited” insight,” and “impaired” to “moderate” judgment.
Tr. 658. LMSW McLarenneil noted that Rogers had major depressive symptoms and deteriorated
coping and problem-solving skills, displayed impulsivity and recklessness, and felt trapped,
hopeless, and helpless. Id. LMSW McLarenneil diagnosed Rogers with chronic adjustment
disorder with mixed anxiety and depressed mood. Tr. 659. She noted that Rogers was to follow
up for individual therapy. Tr. 660.
On August 13, 2014, Rogers’s treating physician Pricilla Martin, M.D. (“Dr. Martin”)
opined that Rogers was unable to meet competitive standards in maintaining regular attendance,
being punctual within customary tolerances, and performing at a consistent pace without an
unreasonable number and length of rest periods. Tr. 1259. Dr. Martin indicated that Rogers would
be off task more than 20% of the time during an eight-hour workday, that her impairments were
likely to produce “good” and “bad” days, and that she was likely to be absent from work due to
her impairments or treatment more than four days per month.5 Id.
ALJ’s Step Two Analysis and Failure to Consider Nonsevere Impairment in RFC
Here, the ALJ found at step two that Rogers’s depression was a nonsevere impairment. Tr.
32. He reasoned that “[a]lthough there is some indication of stress and discussion of mental health
counseling with a social worker, the record does not provide objective evidence supporting
[Rogers]’s allegations that depression impacts her functioning.” Id. (citing Tr. 413). The ALJ
The Court notes that Dr. Martin’s opinion seems to indicate that Rogers’s issues with attendance, punctuality,
and pace—which are related to one’s mental ability to work—were due to her physical and not her mental
summarized part of LMSW McLarenneil’s assessment and concluded that “these allegations were
very recently documented and there is insufficient treatment history or other objective evidence to
support these alleged symptoms or the impact on [Rogers]’s functioning.” Id. (citing Tr. 655).
The ALJ further noted that although LMSW McLarenneil found that Rogers “was suffering from
anxiety and depression and scheduled [her] for continued therapy, there is no indication that [she]
continued such treatment or records of these sessions.” Id. (citing Tr. 660).
When an ALJ finds that a claimant has nonsevere impairments, like the ALJ did here, the
ALJ must consider those impairments when he or she assesses the claimant’s RFC. See 20 C.F.R.
§ 404.1545(a)(2). Remand is required when the ALJ fails to account for the claimant’s nonsevere
impairments when determining his or her RFC. See Parker-Grose v. Astrue, 462 F. App’x 16, 18
(2d Cir. 2012) (summary order); Ames v. Berryhill, No. 16-CV-316-FPG, 2017 WL 1276706, at
*3 (W.D.N.Y. Apr. 6, 2017).
Here, although the ALJ’s step two conclusion contained a boilerplate statement that he
considered Rogers’s nonsevere impairments when creating the RFC assessment, his RFC analysis
does not discuss Rogers’s depression or explain why the RFC lacked any related mental
limitations. Tr. 33, 34-40. The ALJ did cite Rogers’s Global Assessment of Functioning (“GAF”)
score of 60 and noted that it indicated “moderate symptoms,” but he did not tie that score to
Rogers’s depression or indicate how it would or would not affect her ability to work. Tr. 38 (citing
Tr. 660). Thus, it is impossible for Rogers or the Court to know whether the ALJ considered her
depression when he determined her RFC and remand is required.
Failure to Develop the Record
Rogers asserts that in light of the evidence outlined above and the ALJ’s step two
determination that her depression was nonsevere, the ALJ was obligated to develop the record by
obtaining a medical opinion as to her mental ability to perform work-related functions. The Court
The ALJ has an affirmative duty to develop the administrative record due to the “nonadversarial nature of a benefits proceeding.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996).
Specifically, the ALJ must “make every reasonable effort” to 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). 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.
Moreover, 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-CV6286P, 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 . . . 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).
As mentioned above, Dr. Martin evaluated Rogers’s mental abilities and aptitudes to
perform unskilled work, although her opinion seemed to indicate that Rogers’s limitations in those
areas were due to her physical and not her mental impairments. Tr. 1259-60. Nonetheless, Dr.
Martin’s assessment was the only opinion in the record as to Rogers’s mental ability to perform
work-related functions on a regular and continuing basis.6 The ALJ discounted Dr. Martin’s
opinion (Tr. 38) and therefore had no medical opinion to rely on when considering whether
Rogers’s mental impairments interfered with her ability to work. See, e.g., House v. Astrue, No.
5:11-CV-915 (GLS), 2013 WL 422058, at *4 (N.D.N.Y. Feb. 1, 2013) (the ALJ’s rejection of the
treating physician’s opinion necessitated remand because the absence of any other medical
assessment created an evidentiary gap in the record).
Instead of developing the record as to Rogers’s mental impairments, the ALJ’s decision
relied heavily upon the fact that the record lacked sufficient evidence and treatment history. Social
Security Ruling 96-7p warns, however, that an ALJ “must not draw any inferences about an
individual’s symptoms and their functional effects from a failure to seek or pursue regular medical
treatment without first considering any explanations that the individual may provide, or other
information in the case record, that may explain infrequent or irregular medical visits or failure to
seek medical treatment.” S.S.R. 96-7p, Policy Interpretation Ruling Titles II & XVI: Evaluation
of Symptoms in Disability Claims: Assessing the Credibility of an Individual’s Statements, 1996
WL 374186, at *7 (S.S.A. July 2, 1996) (effective July 2, 1996 to Mar. 28, 2016). In the mental
health context, “[c]ourts have observed that faulting a person with a diagnosed mental illness for
failing to pursue mental health treatment is a ‘questionable practice.’” Bick v. Colvin, 14-CV791S, 2016 WL 3995716, at *3 (W.D.N.Y. July 26, 2016).
See S.S.R. 96-8p, Policy Interpretation Ruling Titles II & XVI: Assessing Residual Functional Capacity in
Initial Claims, 1996 WL 374184, at *5-6 (S.S.A. July 2, 1996) (“Work-related mental activities generally required by
competitive, remunerative work include the abilities to: understand, carry out, and remember instructions; use
judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations;
and deal with changes in a routine work setting.”); see also 20 C.F.R. §§ 404.1545(c), 416.945(c) (the SSA will
evaluate the claimant’s ability to work on a “regular and continuing basis” when assessing his or her mental capacity).
Given the lack of a medical opinion as to Rogers’s mental ability to work, the Court finds
that there was an “obvious gap” in the record and that the ALJ was therefore obligated to seek
additional evidence. Accordingly, remand is required.
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 11) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 12) is DENIED, and this matter
is REMANDED to the Commissioner for further administrative proceedings consistent 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
IT IS SO ORDERED.
Dated: August 14, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?