Weaver v. Berryhill

Filing 13

DECISION AND ORDER: Plaintiff's Motion for Judgment on the Pleadings 7 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. The Clerk of Court is directed to enter judgment and close this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/4/2018. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHEYANNE WEAVER,
Plaintiff,
Case # 17-CV-6562-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

INTRODUCTION
Cheyanne Weaver brings this action pursuant to the Social Security Act (“the Act”) seeking
review of the final decision of the Acting Commissioner of Social Security that denied her
application for Supplemental Security Income (“SSI”) under Title XVI of the Act. ECF No. 1.
The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g) and 1383(c)(3).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 7, 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 February 19, 2014, Weaver protectively applied for SSI with the Social Security
Administration (“the SSA”). Tr.1 202-07. She alleged disability since February 19, 2013 due to
scoliosis and attention deficit hyperactivity disorder. Tr. 235. On June 29, 2016, Weaver appeared
and testified at a hearing before Administrative Law Judge Elizabeth W. Koennecke (“the ALJ”).
Tr. 29-54. The ALJ determined that a supplemental hearing was necessary to obtain vocational

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References to “Tr.” are to the administrative record in this matter.

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expert (“VE”) testimony. Tr. 10. Thus, on August 30, 2016, the ALJ conducted a video hearing
with Weaver’s attorney and a VE; Weaver chose not to appear. Id.; Tr. 55-65. On September 7,
2016, the ALJ issued a decision finding that Weaver was not disabled within the meaning of the
Act. Tr. 10-23. On June 13, 2017, the Appeals Council denied Weaver’s request for review. Tr.
1-4. Thereafter, Weaver 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) (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).
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

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(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).

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DISCUSSION
I.

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

above. At step one, the ALJ found that Weaver had not engaged in substantial gainful activity
since the application date. Tr. 13. At step two, the ALJ found that Weaver has a mental impairment
that constitutes a severe impairment. Tr. 13-14. At step three, the ALJ found that this impairment
did not meet or medically equal any Listings impairment. Tr. 14-16.
Next, the ALJ determined that Weaver retains the RFC to perform a full range of work at
all exertional levels but with nonexertional limitations. Tr. 16-22. Specifically, the ALJ found
that Weaver can understand and follow simple instructions and directions; perform simple tasks
independently; maintain attention and concentration for simple tasks; regularly attend to a routine
and maintain a schedule; relate to and interact appropriately with others to carry out simple tasks;
and handle simple, repetitive work-related stress, meaning that she can make occasional decisions
directly related to performing simple tasks in a stable, unchanging work environment. Tr. 16. The
ALJ also found that Weaver is limited to superficial contact with coworkers and the public. Id.
At step four, the ALJ indicated that Weaver has no past relevant work. Tr. 22. At step
five, the ALJ relied on the VE’s testimony and found that Weaver can adjust to other work that
exists in significant numbers in the national economy given her RFC, age, education, and work
experience. Tr. 22-23. Specifically, the VE testified that Weaver can work as a garbage collector,
kitchen helper, and photocopy machine operator. Tr. 23. Accordingly, the ALJ concluded that
Weaver was not “disabled” under the Act. Id.

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II.

Analysis
Weaver argues that remand is required because the ALJ created a gap in the record that she

was obligated to develop when she rejected the only medical opinion as to Weaver’s mental
capacity.2 ECF No. 7-1 at 18-25; ECF No. 11 at 3-6. The Court agrees.
A.

Legal Standard

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 her application unless it is necessary to
develop an earlier period. 20 C.F.R. § 416.912(b). The ALJ must “make every reasonable effort”
to help the claimant get medical reports from her medical sources. Id. Remand is warranted if the
ALJ fails to fulfill 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.
Additionally, an ALJ cannot “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). Even though the Commissioner is
empowered to make the RFC determination, “where 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

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Weaver advances another argument that she believes warrants reversal of the Commissioner’s decision. ECF No. 71 at 15-18; ECF No. 11 at 1-3. However, the Court will not address that argument because it disposes of this matter
based on the ALJ’s failure to develop the record.

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connection” herself. Id. (citation and alterations omitted); Hilsdorf v. Comm’r of Soc. Sec., 724 F.
Supp. 2d 330, 347 (E.D.N.Y. 2010) (“Because an RFC determination is a medical determination,
an ALJ who makes an RFC determination in the absence of supporting expert medical opinion has
improperly substituted his own opinion for that of a physician, and has committed legal error.”)
(citations omitted).
B

Application

Here, Weaver’s social worker Gayle Alesi submitted a Department of Social Services
psychological assessment that evaluated Weaver’s ability to perform mental work-related
functions. Tr. 331-34. Ms. Alesi opined that Weaver is “moderately limited” in maintaining
attention and concentration for rote tasks, which means she is unable to do this 10-25% of the time.
Tr. 333. She also opined that Weaver is “very limited” in performing simple and complex tasks
independently, regularly attending to a routine, and maintaining a schedule, which means she is
unable to perform these functions 25% or more of the time. Id. The ALJ summarized Ms. Alesi’s
opinion and gave it “limited weight to the extent that it is supported by the objective medical
evidence of record.” Tr. 21. Regardless of whether the ALJ properly discounted this opinion,3
her rejection of the only medical opinion as to Weaver’s mental 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

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The Court notes that as a social worker, Ms. Alesi is an “other source” rather than an “acceptable medical source,”
and thus her opinion is not presumptively entitled to controlling weight. Seignious v. Colvin, No. 6:15-cv-06065
(MAT), 2016 WL 96219, at *6 (W.D.N.Y. Jan. 8, 2016) (citing S.S.R. 06-03p, 2006 WL 2329939, at *2-3 (S.S.A.
Aug. 9, 2006)); 20 C.F.R. §§ 416.913(a), (d) (effective Sept. 3, 2013 to Mar. 26, 2017). Nonetheless, opinions from
“other sources” are “important” and “should be evaluated on key issues such as impairment severity and functional
effects, along with the other relevant evidence in the file.” S.S.R. 06-03p, 2006 WL 2329939, at *3.
The Court declines to analyze whether the ALJ properly weighed Ms. Alesi’s opinion. On remand, however, the ALJ
must weigh Ms. Alesi’s opinion based on the factors set forth in the regulations, 20 C.F.R. § 416.927(c)(1)-(6), and
should “explain the weight” given to Ms. Alesi’s opinion. S.S.R. 06-03p, 2006 WL 2329939, at *6. Moreover, the
ALJ may not discount Ms. Alesi’s opinion simply because she is not an “acceptable medical source.” See, e.g.,
Canales v. Comm’r of Soc. Sec., 698 F. Supp. 2d 335, 344-45 (E.D.N.Y. 2010).

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ALJ’s rejection of the treating physician’s opinion created a “significant and obvious gap in the
evidentiary record” because “the record contained no competent medical opinion regarding
Plaintiff’s RFC during the relevant time period”) (emphasis in original).
The ALJ’s decision summarizes Weaver’s testimony regarding her mental health and
acknowledges treatment notes from various psychiatric evaluations. Tr. 17-21. The treatment
notes that the ALJ cites to (Tr. 339, 371, 607, 614-15, 627, 631, 637, 645, 656, 698, 704, 707,
710), however, contain only raw medical evidence and do not address how Weaver’s mental
impairments affect her ability to perform work-related functions on a regular and continuing basis.
See S.S.R. 96-8p, 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.”); 20 C.F.R. § 416.945(c) (stating that the SSA will evaluate the claimant’s ability
to work on a “regular and continuing basis” when assessing her mental capacity).
Moreover, the ALJ’s RFC analysis does not tie any of this cited evidence to the mental
demands of competitive work. Tr. 16-22. The ALJ merely concludes that Weaver “is capable of
work in a low stress, low contact environment such as that contemplated by the [RFC]” because
“there is somewhat of a willful component to [Weaver]’s level of functioning. If she is interested
in the job, she believes herself to be capable of same. When she takes her medication, her
symptoms are controlled.” Tr. 21.
Even though the ALJ rejected the only opinion as to Weaver’s mental capacity and
otherwise acknowledged treatment notes that contained only raw medical evidence, the ALJ
somehow determined that Weaver could work at all exertional levels with highly specific

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nonexertional limitations.4 Tr. 16. It is unclear to the Court how the ALJ, who is not a medical
professional, was able to make this determination without relying on a medical opinion. See
Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“[J]udges, including administrative law
judges of the Social Security Administration, must be careful not to succumb to the temptation to
play doctor.”).
Without a function-by-function assessment relating the medical evidence to the mental
requirements of competitive work or reliance on a medical source’s opinion as to Weaver’s
functional capacity, the ALJ’s decision leaves the Court with many unanswered questions and does
not afford an adequate basis for meaningful judicial review. See Cichocki v. Astrue, 729 F.3d 172,
177-78 (2d Cir. 2013) (noting that the ALJ is not required to perform an explicit function-byfunction RFC analysis but that “[r]emand may be appropriate . . . where other inadequacies in the
ALJ’s analysis frustrate meaningful review”) (citation omitted).
For the reasons stated, the Court finds that the ALJ erred when she determined Weaver’s
RFC without a supporting medical opinion. Accordingly, remand is required.
C.

Considerations on Remand

On remand, the ALJ has many available avenues to fill this gap in the record, including
obtaining a consultative psychiatric examination. See Covey, 204 F. Supp. 3d at 507 (citation
omitted). The Court notes that Weaver missed two prior consultative examinations without
notice—one scheduled for April 8, 2014 and one scheduled for April 23, 2014. Tr. 68-69, 251.
The record reveals, however, that Weaver was hospitalized for psychiatric issues from April 22

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The ALJ found that Weaver can understand and follow simple instructions and directions; perform simple tasks
independently; maintain attention and concentration for simple tasks; regularly attend to a routine and maintain a
schedule; relate to and interact appropriately with others to carry out simple tasks; and handle simple, repetitive workrelated stress, meaning that she can make occasional decisions directly related to performing simple tasks in a stable,
unchanging work environment. Tr. 16. The ALJ also found that Weaver is limited to superficial contact with
coworkers and the public. Id.

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until May 1, 2014 and was readmitted on May 5, 2014—which explains why she missed the second
consultative examination and could not be reached by telephone. Tr. 339-411; see also 20 C.F.R.
§ 416.918(b)(1) (noting that illness on the date of the scheduled examination constitutes a “good
reason” for failing to appear). The ALJ recognized that Weaver failed to attend these appointments
and noted that it “detracted” from her disability allegations. Tr. 19.
The SSA’s regulations provide that an ALJ may find an individual “not disabled” if she
does not have a good reason for failing to attend a consultative examination. See 20 C.F.R. §
416.918(a). The ALJ may also make a disability determination based on the evidence before her
“when, despite efforts to obtain additional evidence, the evidence is insufficient to determine
whether [the claimant is] disabled.” 20 C.F.R. § 416.920b(d) (effective Mar. 26, 2012 to Mar. 26,
2017).
The ALJ’s decision did not cite these reasons for finding Weaver not disabled and
determining her RFC without reliance on a medical opinion. It is also unclear whether the ALJ
took other actions to resolve the insufficiency of the record. See 20 C.F.R. § 416.920b(c)(1), (2),
(4) (stating that, if the record evidence is insufficient to make a disability determination, the ALJ
may recontact medical sources, request additional existing records, or ask the claimant or others
for more information). On remand, the ALJ should make clear what actions she took to develop
the record as to Weaver’s mental ability to work. The Court also reminds Weaver that she must
provide medical and other evidence to the SSA upon request and that, if she fails to do so, the SSA
will “have to make a decision” based on the information available. See 20 C.F.R. § 416.916.
CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 7) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 10) is DENIED, and this matter

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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). The Clerk of Court is directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: May 4, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court 

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