Weiss v. Commissioner of Social Security

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.
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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).
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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.
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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).
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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.
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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
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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.
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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).
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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
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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,
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