Lilley v. Berryhill

307 F. Supp. 3d 157
CourtDistrict Court, W.D. New York
DecidedApril 19, 2018
Docket16–CV–6177L
StatusPublished
Cited by39 cases

This text of 307 F. Supp. 3d 157 (Lilley v. Berryhill) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lilley v. Berryhill, 307 F. Supp. 3d 157 (W.D.N.Y. 2018).

Opinion

DAVID G. LARIMER, United States District Judge

Plaintiff appeals from a denial of disability benefits by the Commissioner of Social Security ("the Commissioner"). The action is one brought pursuant to 42 U.S.C. § 405(g) to review the Commissioner's final determination.

On July 24, 2012, plaintiff, then thirty-one years old, filed applications for a period of disability and disability insurance benefits, and for supplemental security income, alleging an inability to work since January 1, 2011. (Dkt. # 7 at 20).1 Those applications were initially denied. Plaintiff requested a hearing, which was held June *15925, 2014 before Administrative Law Judge ("ALJ") Connor O'Brien. On September 23, 2014, the ALJ issued a decision finding plaintiff not disabled. (Dkt. # 7 at 20-30). That decision became the final decision of the Commissioner when the Appeals Council denied review on January 19, 2016. (Dkt. # 7 at 1-4). Plaintiff now appeals.

The plaintiff has moved, and the Commissioner has cross moved, for judgment on the pleadings pursuant to Fed. R. Civ. Proc. 12(c). For the reasons set forth below, plaintiff's motion (Dkt. # 12) is granted, the Commissioner's cross motion (Dkt. # 16) is denied, and the matter is remanded for further proceedings.

DISCUSSION

An ALJ applies a well-established five-step evaluation process to determine whether a claimant is disabled within the meaning of the Social Security Act, familiarity with which is presumed. See Bowen v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ has applied the correct legal standards. See 42 U.S.C. § 405(g) ; Machadio v. Apfel , 276 F.3d 103, 108 (2d Cir. 2002).

Here, the ALJ determined that since the alleged onset date of January 1, 2011, plaintiff has suffered from the following severe impairments: seizure disorder, degenerative disc disease of the lumbar spine, menorrhagia (heavy menstrual bleeding) post endometrial ablation and hysterectomy, obesity, hypertension, hyperthyroidism, and depression. (Dkt. # 7 at 23).

After reviewing of the evidence of record, the ALJ found that the plaintiff has retained the residual functional capacity ("RFC") to perform sedentary work, except that she requires a sit/stand option that allows her to change positions every 60 minutes for up to 5 minutes without leaving her workstation. Plaintiff cannot climb ropes, ladders or scaffolds, and cannot balance on narrow, slippery or moving surfaces. She can occasionally stoop, crouch, kneel and crawl, and cannot tolerate exposure to hazards, such as unprotected heights or dangerous machinery. Plaintiff can tolerate occasional exposure to extreme temperatures, wetness, humidity and concentrated airborne irritants. She cannot work in isolation, can tolerate only occasional changes in the work setting, can have occasional interaction with the public, cannot perform teamwork, but can meet daily goals. She cannot maintain an hourly, machine driven, assembly line production rate. (Dkt. # 7 at 24-25).

When presented with this RFC, vocational expert Carol G. McManus testified that plaintiff could perform the positions of call-out operator, telephone quotation clerk, and table worker. (Dkt. # 7 at 29).

Plaintiff argues that the ALJ erred when she assessed the effect of plaintiff's depression on her RFC without the benefit of a medical opinion, and that her decision was therefore a lay opinion, based on an incomplete record. The Court concurs.

"Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record. This duty exists even when the claimant is represented by counsel." Perez v. Chater , 77 F.3d 41, 47 (2d Cir. 1996). While it is not per se error for an ALJ to make an RFC determination without relying on a medical opinion, the ALJ's determination must be supported by substantial evidence of record. See Tankisi v. Commissioner , 521 Fed.Appx. 29 (2d Cir. 2013). Thus, where the record is not otherwise complete and fails to meaningfully address a claimant's *160functional physical and/or mental limitations, the ALJ's duty to further develop the record is triggered, and the ALJ's failure to satisfy that duty is reversible error. See Williams v. Colvin , 2016 U.S. Dist. LEXIS 51621 at *12-*13 (W.D.N.Y. 2016).

Here, although the ALJ found that plaintiff's severe impairments included depression, the record was devoid of medical opinion evidence concerning the plaintiff's mental RFC. (Dkt. # 7 at 26).2 Instead, the ALJ stated that her findings concerning the effects of plaintiff's depression were based on selected statements from the treatment records of plaintiff's treating internist, Dr. Bruce MacKellar (in particular, three occasions on which plaintiff reported significant improvement with antidepressant medications), and the fact that plaintiff was referred to counseling by Dr. MacKellar, but "stopped going." (Dkt. # 7 at 27) ("[r]egarding the claimant[']s mental impairments, records indicate that the claimant has had complaints of depression and anxiety...However, the claimant indicated that her symptoms had improved on medication...The claimant was referred to counseling but stopped going because she felt like it was not doing anything for her...").

While Dr. MacKellar's treatment notes and plaintiff's treatment history are undoubtedly relevant, neither provides any meaningful, objective indication of plaintiff's ability to perform the mental and/or physical demands of work.

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Bluebook (online)
307 F. Supp. 3d 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lilley-v-berryhill-nywd-2018.