2:25-cv-00041•Weiss v. Commissioner of Social Security
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT COOKEVILLE ROBERT WEISS ) ) Case No. 2:25-cv-00041 v. ) ) COMMISSIONER OF SOCIAL SECURITY ) To: The Honorable Eli J. Richardson, District Judge REPORT AND RECOMMENDATION Plaintiff Robert Weiss filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Social Security Administration (“SSA”) denying him Supplemental Social Security (“SSI”) under Title XVI of the Social Security Act (the “Act”). The case is currently pending on Plaintiff’s motion for judgment on the administrative record (Docket No. 14) and memorandum in support (Docket No. 15), to which Defendant SSA has responded (Docket No. 17). This matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) for initial consideration and a report and recommendation. (Docket No. 19.) Upon review of the administrative record as a whole and consideration of the parties’ filings, the undersigned Magistrate Judge respectfully recommends that Plaintiff’s motion (Docket No. 14) be GRANTED. I. INTRODUCTION On September 14, 2020, Plaintiff filed an application for SSI. (Transcript of the Administrative Record (Docket No. 12) at 18).1 In his application, Plaintiff asserted that, as of the alleged onset date of May 25, 2012, he was disabled and unable to work due to the following 1 The Transcript of the Administrative Record is hereinafter referenced by the abbreviation “AR” followed by the corresponding Bates-stamped number(s) in large black print in the bottom right corner of each page. Case 2:25-cv-00041 Document 20 Filed 02/24/26 Page 1 of 10 PageID #: <pageID>
2 physical or mental conditions: plate in head, bone spurs on spine, pins and rod in leg, back pain, mental illness, neck pain, degenerative disc disease, arthritis, headaches, and insomnia. (AR 308.) These claims were denied initially on August 19, 2021 (AR 51–71) and upon reconsideration on July 19, 2022 (AR 72–78). On December 13, 2023, Administrative Law Judge (“ALJ”) Stephanie Jones held a telephonic hearing. (AR 35–45.) Plaintiff did not appear or testify, but his representative appeared on his behalf. On April 16, 2024, ALJ Ann Paschall denied Plaintiff’s claim. (AR 18–29.) On April 2, 2025, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision. (AR 1–7.) Plaintiff then timely commenced this civil action, over which the Court has jurisdiction pursuant to 42 U.S.C. § 405(g). II. THE ALJ’S FINDINGS In her January 9, 2024 decision, the ALJ included the following enumerated findings: 1. The claimant has not engaged in substantial gainful activity since September 14, 2020, the application date (20 CFR 416.971 et seq.). 2. The claimant has the following severe impairments: depressive disorder and substance disorder (20 CFR 416.920(c)). 3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: no greater than occasional decisions or judgments to be made, and no greater than occasional changes in a routine work setting. He can occasionally interact with the general public, coworkers, and supervisors. 5. The claimant has no past relevant work (20 CFR 416.965). 6. The claimant was born on October 27, 1970 and was 49 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963). Case 2:25-cv-00041 Document 20 Filed 02/24/26 Page 2 of 10 PageID #: <pageID>
3 7. The claimant has at least a high school education (20 CFR 416.964). 8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968). 9. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969a). 10. The claimant has not been under a disability, as defined in the Social Security Act, since September 14, 2020, the date the application was filed (20 CFR 416.920(g)). (AR 20–29.) III. REVIEW OF THE RECORD The parties and the ALJ, in combination, have thoroughly summarized and discussed the medical and testimonial evidence of the administrative record. Accordingly, the Court will discuss those matters only to the extent necessary to analyze the parties’ arguments. IV. DISCUSSION AND CONCLUSIONS OF LAW A. Standard of Review The determination of disability under the Act is an administrative decision. The only questions before this Court upon judicial review are: (1) whether the SSA’s decision is supported by substantial evidence, and (2) whether the proper legal criteria were applied to the SSA’s decision. Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)). The SSA’s decision must be affirmed if it is supported by substantial evidence, “even if there is substantial evidence in the record that would have supported an opposite conclusion.” Blakley, 581 F.3d at 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Substantial evidence is defined as “more than a mere scintilla” and “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)); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. Case 2:25-cv-00041 Document 20 Filed 02/24/26 Page 3 of 10 PageID #: <pageID>
4 2007); LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting language substantially like that in Richardson). The SSA utilizes a five-step sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). If the issue of disability can be resolved at any point during the evaluation, the ALJ does not proceed to the next step and the claim is not reviewed further. Id. First, if the claimant is engaged in substantial gainful activity, he is not disabled. Id. Second, if the claimant does not have a severe medically determinable impairment that meets the 12-month durational requirements, he is not disabled. Id. Third, if the claimant suffers from a listed impairment, or its equivalent, for the proper duration, he is presumed disabled. Id. Fourth, if the claimant can perform relevant past work based on his residual functional capacity (“RFC”), which is an assessment of “the most you [the claimant] can still do despite your limitations,” 20 C.F.R. § 404.1545(a)(1), he is not disabled. Id. Fifth, if the claimant can adjust to other work based on his RFC, age, education, and work experience, he is not disabled. Id. The claimant bears the burden of proof through the first four steps, while the burden shifts to the SSA at step five. Johnson v. Comm’r of Soc. Sec., 652 F.3d 646, 651 (6th Cir. 2011) (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)). The Court’s review of the SSA’s decision is limited to the record made in the administrative hearing process. Jones v. Sec’y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). A reviewing court may not try a case de novo, resolve conflicts in evidence, or decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ’s explicit findings and determination unless the record is without substantial evidence to support the ALJ’s determination. Houston v. Sec’y of Health & Human Servs., 736 F.2d 365, 366 (6th Cir. 1984). Case 2:25-cv-00041 Document 20 Filed 02/24/26 Page 4 of 10 PageID #: <pageID>
5 B. The ALJ’s Five-Step Evaluation of Plaintiff To determine the relevant time period for SSI applications, the inquiry focuses on whether the claimant was disabled on or after the application date. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Thus, the relevant time period for Plaintiff’s SSI claim is September 14, 2020, his application date, to April 16, 2024, the date of the ALJ’s decision. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 14, 2020, his application date. (AR 20.) At step two, the ALJ found that Plaintiff had the following severe impairments: depressive disorder and substance abuse disorder. (AR 20.) Nevertheless, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 21.) At step four, the ALJ determined that Plaintiff had the RFC to perform a full range of work at all exertional levels but with certain non-exertional limitations. (AR 23–28.) Finally, at step five, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, including assembler, machine package sealer, and floor waxer. (AR 28–29.) Therefore, the ALJ concluded that Plaintiff had not been under a disability since September 14, 2020, his application date. (AR 29.) C. Plaintiff’s Assertion of Error Plaintiff sets forth one assertion of error: the ALJ committed a legal error when she failed to order a consultative examination. (Docket No. 15 at 6–10.) Plaintiff asks the Court to either reverse the decision of the SSA and award him SSI, or remand the matter back to the SSA for further consideration. The Court presumes that Plaintiff seeks this relief pursuant to sentence four of 42 U.S.C. § 405(g), though she does not specify. Case 2:25-cv-00041 Document 20 Filed 02/24/26 Page 5 of 10 PageID #: <pageID>
6 A consultative examination is appropriate when the medical evidence is incomplete or unclear and undermines the ability to resolve the disability issue. 20 C.F.R. §§ 416.917, 416.919a. The ALJ has discretion to determine whether further evidence, such as a consultative examination, is necessary. 20 C.F.R. §§ 404.1517, 416.917 (“If your medical sources cannot or will not give us sufficient medical evidence about your impairment for us to determine whether you are disabled or blind, we may ask you to have one or more physical or mental examinations or tests.”) (emphasis added). In this case, no consultative examination was performed. Plaintiff argues that, although the ALJ is not obligated to order a consultative examination, the ALJ nevertheless must obtain a medical expert opinion in order to include functional limitations in a claimant’s RFC. (Docket No. 15 at 8.) He contends that medical evidence demonstrates that he has severe physical impairments – back issues – that impact his RFC, but the record did not contain opinions on how those physical impairments impact his RFC. (Id. at 9.) Accordingly, he argues that the ALJ wrongly “played doctor” and made her own finding that he had no physical limitations despite evidence to the contrary. (Id.) In response, the SSA argues that error should not be ascribed to the ALJ for failure to order a consultative examination because the SSA ordered examinations that Plaintiff did not attend because he was incarcerated. (Docket No. 17 at 4–5.) The SSA also argues that the ALJ properly reviewed the record and issued an on-the-record decision, as requested by Plaintiff. (Id. at 5.) In addition, it contends that Plaintiff’s back impairment did not meet the 12-month durational requirement, so a consultative examination would not have been relevant. (Id. at 7.) Upon review of the entire record, the Court finds further development of the record was necessary. The state agency physicians concluded at both the initial and reconsideration stages that Case 2:25-cv-00041 Document 20 Filed 02/24/26 Page 6 of 10 PageID #: <pageID>
7 there was “insufficient evidence” to determine Plaintiff’s physical abilities. (AR 51–70, 73–78.) At the initial stage, state agency physician Gary S. Friedman, M.D., stated: We will need a comprehensive orthopedic evaluation addressing his headaches, any previous neurosurgical procedures, neck and low back pain, shoulder pain if it is still present and what might be a leg fracture. A headache questionnaire is necessary. The examination should address gait functions, neck and lumbar spine range of motion and strength. Xrays of affected parts should be done if indicated. Accordingly, they did not offer recommendations as to Plaintiff’s physical limitations. (AR 62.) At the reconsideration stage, state agency physician OK Yung Chung, M.D., agreed with Dr. Friedman that the record was insufficient because it lacked current functional information and a comprehensive physical examination. (AR 75.) Accordingly, neither state agency physician made recommendations as to Plaintiff’s physical limitations. There were no other medical opinions in the record concerning Plaintiff’s physical limitations. Despite this lack of medical evidence, the ALJ found that Plaintiff had the RFC to perform a full range of work. This is problematic given that, despite the wide latitude afforded to the ALJ’s determination, Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010) (citing 42 U.S.C. § 432(d)(5)(B)), the ALJ “must not succumb to the temptation to play doctor and make [his] own independent medical findings.” Simpson v. Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (internal quotations omitted). The Court recognizes there are limited occasions when the medical evidence is so clear, and so undisputed, that an ALJ would be justified in drawing functional capacity conclusions from such evidence without the assistance of a medical source. See Deskin, 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008) (“To be sure, where the medical evidence shows relatively little physical impairment, an ALJ permissibly can render a commonsense judgment about functional capacity even without a physician’s assessment”). This, however, is not such a case. Case 2:25-cv-00041 Document 20 Filed 02/24/26 Page 7 of 10 PageID #: <pageID>
8 Although a claimant may be deemed disabled when no reason has been provided for missing a consultative examination, 20 C.F.R. 416.918(a), here, Plaintiff had a good reason. He was incarcerated. Despite the SSA and the state agency physicians recommending and the SSA scheduling consultative examinations, there is no indication in the record that the ALJ ordered one to take place to assist her in formulating Plaintiff’s RFC or otherwise. In her decision, the ALJ did not reference a consultative examination or explain why she did not order one. The SSA argues that the ALJ could not have ordered a consultative examination because Plaintiff was in jail at the time of the administrative hearing. (Docket No. 17 at 6–7.) It also argues that Plaintiff’s election to have the ALJ “make a decision on the basis of the written record without a hearing” is further evidence that the ALJ did not commit error by failing to order a consultative examination. (Id.) The Court is not convinced. The ALJ could have issued a decision on the record finding that she had insufficient evidence to make a determination concerning Plaintiff’s physical impairments and RFC based on the lack of a consultative examination or any other opinion evidence. Instead, the ALJ formulated an RFC with physical limitations, or a lack thereof, that were not based on any opinion evidence. Disability benefits hearings are adjudicative and not adversarial. Moats v. Comm'r of Soc. Sec., 42 F.4th 558, 560 (6th Cir. 2022) (citing Biestek v. Berryhill, 587 U.S. 97, 99 (2019)). Further, due process requires that social security proceedings be “full and fair,” and it falls on the ALJ to ensure every claimant receives a full and fair hearing. Flatford v. Chater, 93 F.3d 1296, 1305 (6th Cir. 1996); Lashley v. Sec'y of Health & Hum. Servs., 708 F.2d 1048, 1051 (6th Cir. 1983). Consequently, the ALJ has an affirmative duty to develop the record. Cox v. Comm'r of Soc. Sec., 615 F. App'x 254, 262 (6th Cir. 2015). Case 2:25-cv-00041 Document 20 Filed 02/24/26 Page 8 of 10 PageID #: <pageID>
9 Although the SSA made adequate attempts to schedule a consultative examination, the fact is that one did not take place due to Plaintiff’s incarceration. However, despite the fact that both the SSA and the state agency physicians considered a consultative examination to be essential to determine Plaintiff’s disability status, the ALJ did not order one and did not provide any explanation concerning this decision. However, a consultative examination was needed considering the lack of opinion evidence in the record. Accordingly, the Court finds that the ALJ’s failure to order a consultative examination was in error. Under these circumstances, the ALJ’s RFC determination lacks adequate support to conclude that Plaintiff can perform a full range of work. For the foregoing reasons, this matter should be remanded under sentence four of 42 U.S.C. § 405(g) for further development of the record, including a consultative examination, and for further findings. V. RECOMMENDATION For the above stated reasons, it is respectfully RECOMMENDED that Plaintiff’s motion for judgment on the administrative record (Docket No. 14) be GRANTED, and this matter be REMANDED to the Social Security Administration for further administrative proceedings consistent with the Report and Recommendation. ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen (14) days of service of this Report and Recommendation and must state with particularity the specific portions of this Report and Recommendation to which objection is made. See Fed. R. Civ. P. 72(b)(2); Local Rule 72.02(a). Failure to file specific written objections within the specified time can be deemed to be a waiver of the right to appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Milton, 380 F.3d 909, 912 (6th Cir. 2004) (en banc). Any Case 2:25-cv-00041 Document 20 Filed 02/24/26 Page 9 of 10 PageID #: <pageID>
10 responses to objections to this Report and Recommendation must be filed within fourteen (14) days of the filing of the objections. See Fed. R. Civ. P. 72(b)(2); Local Rule 72.02(b). Respectfully submitted, Case 2:25-cv-00041 Document 20 Filed 02/24/26 Page 10 of 10 PageID #: <pageID>
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