# Miller v. Commissioner of Social Security

> District Court, W.D. New York · March 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10361961

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10361961

## How later opinions describe it (automated extraction)

- finding a reviewing court does not try a benefits case de novo

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

BRENDA LEE MILLER,

Plaintiff,
DECISION AND ORDER

18-CV-6654-MJP
-vs-

ANDREW SAUL,

Commissioner of Social Security,

Defendant.

INTRODUCTION
Pedersen, M.J. Plaintiff Brenda Lee Miller (“Plaintiff”) brings this
action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g)
and § 383(c)(3) seeking judicial review of a final decision of the Commissioner
of Social Security (“Commissioner”) denying her application for Supplemental
Security Income (“SSI”) benefits. Pursuant to 28 U.S.C. § 636(c) the parties
have consented to the disposition of this case by a United States magistrate
judge. (ECF No. 16.)
Presently before the Court are cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF
Nos. 10 & 14.) For the reasons set forth below, this matter must be remanded
for a rehearing.
PROCEDURAL BACKGROUND
On August 28, 2015, Plaintiff protectively filed an application for SSI.
(Record1 (“R.”) 88.) Plaintiff alleged disability beginning on January 1, 2001,
including PTSD, bipolar disorder, personality disorder, arthritis, carpel
tunnel, asthma, fibromyalgia. (R. 201, 213 & 217.) The Social Security

Administration denied Plaintiff’s claim on December 14, 2015. (R. 87–101.) On
March 10, 2017, a hearing was held before an Administrative Law Judge
(“A.L.J.”), who conducted a videoconference hearing from Falls Church,
Virginia (R. 27–28; 58–86.) Plaintiff participated in the hearing from
Rochester, New York. (R. 28.) Plaintiff did not have any representation during
the hearing. (R. 28 & 60.) A vocational expert also testified at the hearing (R. 29

& 60.)
The A.L.J. issued an unfavorable decision on June 28, 2017, finding that
Plaintiff had the following severe impairments: “arthralgia and myalgia;
depression; and anxiety (20 CFR 416.920(c).” (R. 30.) Nevertheless, the A.L.J.
determined that Plaintiff was able to
perform light work as defined in 20 CFR 416.967(b) except she is
prohibited from climbing ladders, ropes, and scaffolds. She is
further limited to occasional climbing of ramps and stairs,
balancing, stooping, kneeling, crouching, and crawling. She would
need to avoid hazardous machinery, unprotected heights, and
open flames as well as slippery and uneven surfaces. She also
would need to avoid concentrated exposure to irritants such as
fumes, odors, dust, gases, and poorly ventilated areas . . .
Additionally, she is limited to doing simple routine, repetitive
tasks. She is further limited to work in a low stress job defined as
being free of fast-paced production requirements, no hazardous

1 Record refers to the filed Transcript, ECF No. 8, February 21, 2019.
conditions, occasional decision-making required, and occasional
changes in the work setting. Finally, she is limited to occasional
interaction with coworkers, supervisors, and the general public.
(R. 33.)
Plaintiff appealed to the Social Security Administration’s Appeals
Council and that body denied her request for review on July 6, 2018, making
the A.L.J.’s decision the Commissioner’s final decision. (R. 1–4.) Plaintiff filed
this lawsuit on September 14, 2018.
STANDARD OF REVIEW
Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear
claims based on the denial of Social Security benefits. Section 405(g) provides
that the District Court “shall have the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g) (2007). It directs that when
considering a claim, the Court must accept the findings of fact made by the
Commissioner, provided that such findings are supported by substantial
evidence in the record. Substantial evidence is defined as “‘more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389

(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).
To determine whether substantial evidence supports the
Commissioner’s findings, the Court must “examine the entire record, including
contradictory evidence and evidence from which conflicting inferences can be

drawn.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits
the scope of the Court’s review to two inquiries: whether the Commissioner’s
findings were supported by substantial evidence in the record, and whether
the Commissioner’s conclusions are based upon an erroneous legal standard.
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); see also

Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a benefits
case de novo).
A person is disabled for the purposes of SSI and disability benefits if he
or she is unable “to engage in any substantial gainful activity 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) & 1382c(a)(3)(A).

In assessing whether a claimant is disabled, the A.L.J. must employ a five-step
sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam). The five steps are:
(1) whether the claimant is currently engaged in substantial
gainful activity;
(2) if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;
(3) if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix 1 of
Subpart P of Part 404 of the relevant regulations;
(4) if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity [(“RFC”)] to
perform his past work; and
(5) if not, whether the claimant retains the [RFC] to perform
any other work that exists in significant numbers in the national
economy.
20 C.F.R. §§ 404.1520(a)(4)(i)(v) & 416.920(a)(4)(i)(v); Berry v. Schweiker, 675
F.2d at 467. “The claimant bears the burden of proving his or her case at steps
one through four[;] . . . [a]t step five the burden shifts to the Commissioner to
‘show there is other gainful work in the national economy [which] the claimant
could perform.’” Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004) (quoting
Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
ANALYSIS
Plaintiff raises four issues for the Court’s review, asserting that:
1. The A.L.J. improperly evaluated evidence of multiple
conditions and limiting effects;
2. The A.L.J. improperly selectively read and otherwise
improperly evaluated opinions and record;
3. The A.L.J. failed to protect the plaintiff’s pro se rights; and
4. The Appeals Council improperly disallowed new and material
evidence.
(Pl.’s Mem. of Law, dated April 22, 2019, ECF No. 10-1 at 2.) For the reasons
explained below, the Court finds that this matter must be remanded.
The A.L.J. Improperly Evaluated the Opinion Evidence in the Record
Regarding Plaintiff’s Mental Impairments.
In reviewing the A.L.J.’s analysis of the opinion evidence related to
Plaintiff’s mental impairments it is impossible for this Court to decipher
whether the mental portion of the RFC was based upon substantial evidence.
In determining Plaintiff’s mental RFC, the A.L.J. addressed the opinions of
Katelyn Scott, LMHC, Yu-Ying Lin, Ph.D., an examining psychologist, and
Mautherine Louis, MSW, a treating therapist. (R. 37–38.)
With respect to both Ms. Scott’s and Ms. Louis’s opinion statements, the

A.L.J. rightly indicates that they are not acceptable medical sources, but
discounts both of their opinions asserting that, “[o]nly ‘acceptable medical
sources’ can give medical opinions.” (R. 37, 38.) The A.L.J. cited to 20 C.F.R.
404.1527(a)(2) and 416.927(a)(2) in support of this claim.2 This is perplexing
because in reading the A.L.J.’s statement in context of the decision, it appears
as though he is saying that Ms. Scott’s and Ms. Louis’s opinions are not

“medical opinions,” which is not accurate. (Id.) Moreover, the A.L.J. appears to
ignore a portion of those same regulations, which provides
(f) Opinions from medical sources who are not acceptable medical
sources and from nonmedical sources.
(1) Consideration. Opinions from medical sources who are
not acceptable medical sources and from nonmedical
sources may reflect the source’s judgment about some of
the same issues addressed in medical opinions from
acceptable medical sources. Although we will consider

2 While confusing, it appears that the A.L.J. meant to cite to 20 C.F.R.
404.1527(a)(1) and 416.927(a)(1), which provides that “[m]edical opinions are
statements from acceptable medical sources.”
these opinions using the same factors as listed in
paragraph (c)(1) through (c)(6) in this section, not every
factor for weighing opinion evidence will apply in every
case because the evaluation of an opinion from a medical
source who is not an acceptable medical source or from a
nonmedical source depends on the particular facts in each
case. Depending on the particular facts in a case, and after
applying the factors for weighing opinion evidence, an
opinion from a medical source who is not an acceptable
medical source or from a nonmedical source may outweigh
the medical opinion of an acceptable medical source,
including the medical opinion of a treating source. For
example, it may be appropriate to give more weight to the
opinion of a medical source who is not an acceptable
medical source if he or she has seen the individual more
often than the treating source, has provided better
supporting evidence and a better explanation for the
opinion, and the opinion is more consistent with the
evidence as a whole.
20 C.F.R. §§ 404.1527(f)(1) and 416.927(f)(1) (emphasis added).
Accordingly, the A.L.J. was incorrect in summarily concluding that since
Ms. Scott and Ms. Louis do not qualify as acceptable medical sources, they
cannot provide opinions that must be considered. To the extent that the A.L.J.
discounted their opinions on this basis, which is not clear from the decision, it
was error.
Moreover, pursuant to 20 C.F.R. §§ 404.1527(f)(2) and 416.927(f)(2), an
A.L.J. “generally should explain the weight given to opinions from these
sources or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow
the adjudicator's reasoning, when such opinions may have an effect on the
outcome of the case.” The A.L.J. failed to do this with respect to the six county
psychological assessments for employability completed by Ms. Scott. (R. 338,
342, 346, 350, 354 and 358.) The A.L.J. acknowledged that Ms. Scott was a
“treating mental health counselor.” (R. 37.) In his decision, the A.L.J. engages
in a critique of Ms. Scott’s assessments, but fails to indicate what weight, if

any, he assigned to those assessments in his decision.3 Id.; see Ivey v. Barnhart,
393 F. Supp. 2d 387, 389–390 (E.D.N.C. 2005) (case remanded, in part, where
A.L.J. failed to assess weight given to claimant’s mother’s testimony, which
was relevant to claims of disability); Farnsworth v. Astrue, 604 F. Supp. 2d 828,
836 (N.D.W. Va. 2009) (“In making his or her findings, an A.L.J. must explicitly
indicate the weight given to all of the relevant evidence.”) This is particularly

important here because, if given weight, Ms. Scott’s assessments could have
affected the outcome of the case given the significant mental impairments she
attributed to Plaintiff on six separate occasions over the span of two years.
The Commissioner’s post-hoc argument that “[d]espite discounting Ms.
Scott’s opinions, the A.L.J. did not ignore Plaintiff’s credible mental
limitations, but rather included the significant mental RFC restrictions” is not
credible. (Comm’r Mem. of Law at 23, Jul. 19, 2019, ECF No. 14-1.) The

Commissioner glosses over the fact that the A.L.J. did not assign a weight to
Ms. Scott’s assessments. Instead, the Commissioner states that the A.L.J.
discounted Ms. Scott’s opinions and attempts to fix this glaring error by
baselessly asserting that the A.L.J. considered Plaintiff’s “credible mental

3 Despite the fact that Ms. Louis also does not qualify as an acceptable medical
source, the A.L.J. still assigned a weight to her opinion, albeit giving it “little weight.”
(R. 38.)
limitations” (presumably referring to those contained in Ms. Scott’s
assessments given the context of the Commissioner’s statement) in the mental
RFC restrictions. (Comm’r Mem. of Law at 24.) However, the A.L.J. does not

indicate that he took Ms. Scott’s opinions into consideration when determining
the RFC. Counsel for the Commissioner’s argument must be rejected.
The A.L.J.’s apparent discounting of the opinions of Ms. Scott and
Ms. Louis on the grounds that they are not acceptable medical providers was
error. In addition, the A.L.J.’s failure to indicate what, if any, weight he
assigned to Ms. Scott’s assessments renders it impossible for the Court to

determine if the A.L.J.’s mental RFC was based upon substantial evidence.
The forgoing errors require reversal and remand. Since remand is required,
the Court need not address the other arguments advanced by Plaintiff in
support of her motion.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for judgment on the
pleadings (ECF No. 10) is granted and the Commissioner's motion for

judgment on the pleadings (ECF No. 14) is denied. The case is remanded
pursuant to the fourth sentence of 42 U.S.C. § 405(g) for an expedited hearing.
The Clerk of the Court is directed to enter judgment in favor of the Plaintiff
and close this case.
IT IS SO ORDERED.
DATED: March 25, 2020
Rochester, New York

/s/ Mark W. Pedersen
MARK W. PEDERSEN
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361961. Public record. Not legal advice.