Tennyson, Jr. v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LEON T.,1
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
23-CV-416-LJV
DECISION & ORDER
On May 10, 2023, the plaintiff, Leon T. (“Leon”), brought this action under the
Social Security Act (“the Act”). Docket Item 1. He seeks review of the determination by
the Commissioner of Social Security (“Commissioner”) that he was not disabled.2 Id.
On August 7, 2023, Leon moved for judgment on the pleadings, Docket Item 6; on
September 6, 2023, the Commissioner responded and cross-moved for judgment on the
pleadings, Docket Item 7; and on September 20, 2023, Leon replied, Docket Item 8.
For the reasons that follow, this Court grants Leon’s motion in part and denies
the Commissioner’s cross-motion.3
1 To protect the privacy interests of Social Security litigants while maintaining
public access to judicial records, this Court will identify any non-government party in
cases filed under 42 U.S.C. § 405(g) only by first name and last initial. Standing Order,
Identification of Non-Government Parties in Social Security Opinions (W.D.N.Y. Nov.
18, 2020).
2 Leon applied for Supplemental Security Income (“SSI”), which is paid to a
person with a disability who also demonstrates financial need. 42 U.S.C. § 1382(a).
3 This Court assumes familiarity with the underlying facts, the procedural history,
and the decision of the Administrative Law Judge (“ALJ”) and refers only to the facts
necessary to explain its decision.
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STANDARD OF REVIEW
“The scope of review of a disability determination . . . involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [the Commissioner] applied the correct legal principles in making the
determination.” Id. This includes ensuring “that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Social
Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (alterations omitted)
(quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s]
whether the determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at
985 (quoting 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.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). “The substantial evidence standard means
once an ALJ finds facts, [the court] can reject those facts only if a reasonable fact finder
would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443,
448 (2d Cir. 2012) (internal quotation marks and citation omitted) (emphasis in original);
see McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (“If evidence is susceptible to
more than one rational interpretation, the Commissioner’s conclusion must be upheld.”).
But “[w]here there is a reasonable basis for doubt whether the ALJ applied correct legal
principles, application of the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be deprived of the right to
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have her disability determination made according to the correct legal principles.”
Johnson, 817 F.2d at 986.
DISCUSSION
I. 	THE ALJ’S DECISION
On October 5, 2021, the ALJ found that Leon had not been under a disability
since June 20, 2019, the date his application was filed. See Docket Item 5 at 29. The
ALJ’s decision was based on the five-step sequential evaluation process under 20
C.F.R. §§ 404.1520(a) and 416.920(a). See id. at 20–21.
At step one, the ALJ found that Leon had not engaged in substantial gainful
activity since his application date. Id. at 21. At step two, the ALJ found that Leon
suffered from three severe, medically determinable impairments: social anxiety disorder,
persistent depressive disorder, and panic disorder. Id.
At step three, the ALJ found that Leon’s severe, medically determinable
impairments did not meet or medically equal one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. See id. at 22. More specifically, the ALJ found that
Leon’s impairments did not meet or medically equal listing 12.04 (depressive, bipolar, or
related disorders) or 12.06 (anxiety and obsessive-compulsive disorder). Id. In
assessing Leon’s mental impairments, the ALJ found that Leon was moderately
impaired in: (1) understanding, remembering, or applying information; (2) interacting
with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or
managing himself. Id. at 22–23.
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The ALJ then found that Leon had the residual functional capacity (“RFC”)4 to
“perform a full range of work at all exertional levels” except that:
[Leon] can understand, remember[,] and carry out simple, routine[,
and] repetitive work[-]related tasks, with only occasional contact with
the public, co-workers[,] and supervisors; and he must work in a low
stress job defined as requiring only occasional decision making and
requiring only occasional changes in the work[]place.
Id. at 23.
At step four, the ALJ found that Leon had no past relevant work. Id. at 28. But
given Leon’s age, education, and RFC, the ALJ found at step five that Leon could
perform substantial gainful activity as a marker, routing clerk, or kitchen helper. Id.; see
Dictionary of Occupational Titles 209.587-034, 1991 WL 671802 (Jan. 1, 2016); id. at
222.687-022, 1991 WL 672133 (Jan. 1, 2016); id. at 318.687-010, 1991 WL 672755
(Jan. 1, 2016). The ALJ therefore found that Leon had not been under a disability since
June 20, 2019, the date his application was filed. See Docket Item 5 at 29.
II. 	ALLEGATIONS
Leon argues that the ALJ erred in two ways. Docket Item 6-1 at 10–18. First,
Leon argues that the ALJ failed to reconcile conflicts between the RFC and limitations in
the opinion of Mary Ann Moore, Psy.D., an opinion the ALJ found to be “persuasive.”
Id. at 10–15. Second, Leon argues that the ALJ improperly evaluated the opinion of
Caley Wekenmann, NP, and Nicholas Nolan, MHC-P. Id. at 16–18. This Court agrees
4 A claimant’s RFC is the most “an individual can still do despite his or her
limitations . . . in an ordinary work setting on a regular and continuing basis.” SSR 96-
8p, 1996 WL 374184, at *2 (July 2, 1996). “A ‘regular and continuing basis’ means 8
hours a day, for 5 days a week, or an equivalent work schedule.” Id.; see Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999).
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with Leon that the ALJ erred and, because that error was to Leon’s prejudice, remands
the matter to the Commissioner.
III. 	ANALYSIS
An ALJ must “weigh all of the evidence available to make an RFC finding that [is]
consistent with the record as a whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir.
2013); accord Schillo v. Kijakazi, 31 F.4th 64, 78 (2d Cir. 2022). That does not mean
that an RFC needs to “perfectly correspond with any of the opinions of medical sources
cited in [the ALJ’s] decision,” Matta, 508 F. App’x at 56, or even be based on opinion
evidence, see Rubin v. Martin O’Malley, Comm’r of Soc. Sec., 116 F.4th 145, 155 (2d
Cir. 2024). So long as an ALJ considers all the medical evidence and appropriately
analyzes the medical opinions, an RFC consistent with the record is not error. See 20
C.F.R. § 416.945; see also Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(holding that remand is not necessary “[w]here an ALJ’s analysis at Step Four regarding
a claimant’s functional limitations and restrictions affords an adequate basis for
meaningful judicial review, applies the proper legal standards, and is supported by
substantial evidence”).
On November 16, 2020, Dr. Moore completed a psychiatric evaluation of Leon.
Docket Item 5 at 594–99. Dr. Moore opined that Leon had no limitations in
“understanding, remembering or applying simple directions and instructions,” id. at 597,
and only moderate limitations in “understanding, remembering, or applying complex
directions . . . and sustaining concentration and performing a task at a consistent pace,”
id. at 598–99. Dr. Moore also opined, however, that Leon would be moderately to
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markedly limited in “sustaining an ordinary routine and regular attendance at work.” Id.
at 599.
The ALJ found Dr. Moore’s opinion to be “persuasive,” as it was “based on a
thorough examination of [Leon].” Id. at 27. And the ALJ included many of Dr. Moore’s
opined limitations in the RFC. See id. at 23. But the ALJ said nothing about the most
limiting parts of Dr. Moore’s opinion—namely, the moderate to marked limitations in
“sustaining an ordinary routine and regular attendance at work.” Compare id. at 599,
with id. at 23.
The ALJ gave no reasons for omitting those limitations, so the Court has no way
of knowing whether the ALJ missed them, simply ignored them, or disagreed with them
for legitimate reasons. And that error requires remand. See Labonte v. Berryhill, 2017
WL 1546477, at *4 (W.D.N.Y. May 1, 2017) (remanding where ALJ gave “significant
weight” to opinion of claimant’s chiropractor but “reject[ed]—without any explanation
whatsoever—[chiropractor’s] opinion that [claimant] would frequently be off task”).
Of course, “[a]n ALJ does not have to state on the record every reason justifying
a decision.” Valdes-Ocasio v. Kijakazi, 2023 WL 3573761, at *1 (2d Cir. May 22, 2023)
(quoting Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012)) (internal
quotation marks omitted). But the ALJ “must provide an ‘accurate and logical bridge’
between the evidence and the conclusion that the claimant is not disabled so that . . . ‘a
reviewing court . . . may assess the validity of the agency’s ultimate findings and afford
[the] claimant meaningful judicial review.’” Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.
2008) (quoting Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004)). And when an
ALJ finds a provider’s opinion to be persuasive, he must either include the limitations in
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that opinion in the RFC or explain why he did not do so. See Kimberly J. v. Comm’r of
Soc. Sec., 725 F. Supp. 3d 305, 309 (W.D.N.Y. 2024) (“When an ALJ adopts only part
of a medical opinion, he must explain why the other parts were rejected.”); Cynthia A. v.
Comm’r of Soc. Sec., 2023 WL 6229600, at *4 (W.D.N.Y. Sep. 26, 2023) (“[T]he ALJ
found the opinions of LMSW’s Diaz and Campbell at least partially persuasive and
included in his RFC determination some of the limitations to which they opined, but he
did not include in the RFC determination any limitation related to work schedule or job
attendance, nor did he offer any explanation for not including such limitations. This was
error.”). The ALJ did not do that here.
The ALJ’s failure to address Dr. Moore’s attendance-related limitations is
particularly troubling because other providers opined about those same limitations. For
example, NP Wekenmann and MHC-P Nolan found that Leon would be absent from
work “[a]bout three days per month.” Docket Item 5 at 966. Likewise, H. Tzetzo, M.D.,
a state agency medical consultant, concluded that Leon was “moderately limited” in his
ability to “perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances.” Id. at 72. And just as the ALJ did not address
Dr. Moore’s limitations, he did not address those limitations either. See id. at 27. In
other words, the ALJ omitted potentially disabling limitations—limitations included in the
opinions of at least four providers—from the RFC without explanation.
What is more, the ALJ’s error was far from harmless. The vocational expert who
testified at the hearing suggested several jobs consistent with the limitations in the RFC,
see Docket Item 5 at 52–53, but he made it clear that if Leon were “absent three times
per month,” there would be no jobs in the national economy that he could perform, id. at
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53; see Cosnyka v. Colvin, 576 F. App’x 43, 46 (2d Cir. 2014) (summary order) (“[T]he
vocational expert’s opinion on whether there were jobs [the claimant] could perform
varied depending on how the [limitations in the RFC] were defined.”). So the limitations
that the ALJ did not address may well have made a significant difference.
In sum, the ALJ erred in omitting the most limiting portions of Dr. Moore’s opinion
from the RFC without explaining why he did so. See Kimberly J., 725 F. Supp. 3d at
309. And because that error was not harmless, remand is required. See Tara W. v.
Comm’r of Soc. Sec., 2021 WL 4316824, at *4 (W.D.N.Y. Sep. 23, 2021).5
5 The Court “will not reach the remaining issues raised by [Leon] because they
may be affected by the ALJ’s treatment of this case on remand.” Watkins v. Barnhart,
350 F.3d 1297, 1299 (10th Cir. 2003); see Beers v. Comm’r of Soc. Sec., 449 F. Supp.
3d 96, 103–04 (W.D.N.Y. 2020).
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CONCLUSION
The Commissioner’s motion for judgment on the pleadings, Docket Item 7, is
DENIED, and Leon’s motion for judgment on the pleadings, Docket Item 6, is
GRANTED in part and DENIED in part. The decision of the Commissioner is
VACATED, and the matter is REMANDED for further administrative proceedings
consistent with this decision.
SO ORDERED.
Dated: 	January 5, 2026
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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