Trudnak v. US Social Security Administration, Commissioner

Filing 15

///ORDER granting 11 Motion to Reverse Decision of Commissioner; denying 12 Motion to Affirm Decision of Commissioner. The motion to reverse is granted to the extent that the case is remanded to the Acting Commissioner for further proceedings, pursuant to sentence four of 42 U.S.C. § 405(g). The clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Brenda Trudnak
v.

Civil No. 17-cv-195-LM
Opinion No. 2018 DNH 091

Nancy A. Berryhill, Acting
Commissioner of Social Security
O R D E R
Brenda Trudnak seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying her application for
disability insurance benefits.

Trudnak moves to reverse the

Acting Commissioner’s decision, contending that the
Administrative Law Judge (“ALJ”) erred by failing to perform a
function-by-function assessment for purposes of determining her
residual functional capacity, and by failing to determine the
medical necessity of her assistive devices.
Commissioner moves to affirm.

The Acting

For the reasons explained below,

the court remands this case to the Acting Commissioner for
further proceedings.
STANDARD OF REVIEW
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.”

Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001).

The court defers to the ALJ’s factual

findings as long as they are supported by substantial evidence.
42 U.S.C. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34
(1st Cir. 2016).

“Substantial evidence is more than a scintilla.

It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Astralis Condo. Ass’n v.

Sec’y Dep’t of Housing & Urban Dev., 620 F.3d 62, 66 (1st Cir.
2010).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis.

20 C.F.R.

§ 404.1520(a)(4). The claimant “has the burden of production and
proof at the first four steps of the process.”
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).

Freeman v.
The first three

steps are (1) determining whether the claimant is engaged in
substantial gainful activity; (2) determining whether she has a
severe impairment; and (3) determining whether the impairment
meets or equals a listed impairment.

20 C.F.R.

§ 404.1520(a)(4)(i)-(iii).
At the fourth step of the sequential analysis, the ALJ
assesses the claimant’s residual functional capacity (“RFC”),
which is a determination of the most a person can do in a work

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setting despite her limitations caused by impairments, id.
§ 404.1545(a)(1), and her past relevant work, id.
§ 404.1520(a)(4)(iv)).

If the claimant can perform her past

relevant work, the ALJ will find that the claimant is not
disabled.

See id.

If the claimant cannot perform her past

relevant work, the ALJ proceeds to Step Five, in which the ALJ
has the burden of showing that jobs exist in the economy which
the claimant can do in light of her residual functional capacity
assessment.

See id. § 404.1520(a)(4)(v).
BACKGROUND1

On March 25, 2014, Trudnak applied for disability insurance
benefits, claiming a disability that began on June 10, 2013.

She

was 48 years old at the time of her application, had a high
school education, and had previously worked as a licensed nursing
assistant (“LNA”).

Trudnak alleged that she was disabled because

of lower-back problems and an injured left leg, which arose from
an incident at work where Trudnak pulled her left leg while
moving a patient.

A detailed statement of the facts can be found in the
parties’ Joint Statement of Material Facts (doc. no. 14).
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I.

Record Evidence
On March 17, 2016, a hearing before an ALJ was held on

Trudnak’s application for benefits.

Trudnak was represented by

an attorney and testified at the hearing.

Michael La Raia, a

vocational expert, appeared and testified by phone.
In order to provide some context, the court summarizes
relevant portions of the record.

Generally, Trudnak presented

evidence to show that, as a result of her lower-back problems and
the symptoms resulting therefrom, she had extremely limited
mobility and could not stand or walk for even short periods of
time.
On this question, the medical records are mixed.

Some

records show that, since June 2013, Trudnak has had significant
pain in her back and left leg, which limits her ability to walk
and stand.

Over the years since her accident, Trudnak reported

and sought treatment for these medical issues, and she has
variously used a cane, a walker, and crutches to ambulate and
perform daily activities.

In addition, at the hearing, Trudnak

testified about her physical limitations in her current part-time
job as a linen folder.

Trudnak testified that, during a 7.5 hour

workday, she alternates between standing and sitting every twenty
minutes, and she takes approximately four thirty-minute breaks in
order to lie down in her van.

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On the other hand, there are medical records which indicate
that, since 2013, Trudnak has been able to ambulate without
assistance, and which arguably show that Trudnak’s alleged
functional limitations are more intermittent than continuous.
The record also contains a number of evaluations completed
by various medical professionals regarding Trudnak’s capacity to
work.

In September 2014, Louis Rosenthall, M.D., the state

agency consultant, completed an RFC assessment.

He opined that

Trudnak could only perform sedentary work, could stand or walk
for up to two hours per eight-hour workday, and required a cane
throughout the workday.

In February 2016, Dennis Badman, M.D.,

completed an RFC assessment, in which he opined that Trudnak
could only stand or walk for less than two hours per workday.
II.

ALJ’s Decision
On July 8, 2016, the ALJ issued an unfavorable decision.

The ALJ found that Trudnak had severe impairments due to lumbar
radiculitis and spondylosis, along with non-severe impairments
due to obesity, bilateral carpal tunnel syndrome, alcohol abuse,
and a middle finger trigger release surgery.

The ALJ found that

Trudnak’s impairments did not meet any listed impairments.
The ALJ then determined that Trudnak had the residual
functional capacity to do light work, as defined by 20 C.F.R.
§ 404.1567(b).

In reaching this conclusion, the ALJ determined
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that Trudnak’s physical abilities were more significantly
curtailed in the immediate aftermath of her June 2013 injury.
The ALJ found that Trudnak’s condition improved within one year,
but that her remaining lower-back problems and impairments
limited her to performing light work.
Badman’s RFC assessment.

The ALJ did not adopt Dr.

The ALJ gave “limited weight” to Dr.

Rosenthall’s evaluation “to the extent that it reflects
[Trudnak’s] abilities immediately after the alleged onset date,”
but the ALJ found that “her condition improved within 12 months”
such that she could perform light work.

Admin. Rec. at 29.

The

ALJ stated that she based this conclusion on Trudnak’s testimony,
the “objective evidence in the form of MRI results, and such
documentation of the . . . treatment and examination findings as
have been provided to this proceeding.”

Id. at 29.

The ALJ did

not rely on any other expert evaluation to reach this conclusion.
Based on that RFC finding, the ALJ determined that Trudnak
could not perform her past relevant work as a LNA, but that, in
light of the medical-vocational guidelines, she could perform
other jobs existing in the national economy.
404, Subpt. P, App. 2, Rules 202.14, .21.

See 20 C.F.R. Pt.

Therefore, the ALJ

found that Trudnak was not disabled within the meaning of the
Social Security Act.

The Appeals Council denied Trudnak’s

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request for review, making the ALJ’s decision the Acting
Commissioner’s final decision.
DISCUSSION
In support of her motion to reverse the Acting
Commissioner’s decision, Trudnak argues that the ALJ erred by (1)
failing to perform a function-by-function assessment of Trudnak’s
physical abilities; and (2) failing to determine whether any of
Trudnak’s assistive devices—her cane, walker, or crutches—were
medically necessary.

The Acting Commissioner moves to affirm.

The court examines each argument in turn.
I.

RFC for Light Work
Trudnak contends that the ALJ failed to perform a function-

by-function assessment in making the RFC finding.

Trudnak

asserts that a more developed explanation was necessary in this
case, given the contrary evidence that her limitations on
standing, sitting, and walking would not permit her to perform
light work.

The Acting Commissioner responds that the ALJ

adequately explained her reasoning regarding Trudnak’s functional
limitations, and that such reasoning is supported by substantial
evidence.
As noted above, a claimant's RFC is an assessment of the
most that a claimant can still do despite limitations.

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20 C.F.R.

§ 404.1545(a)(1).

“The ALJ is responsible for determining a

claimant’s RFC based on all relevant evidence in the record.

In

making that determination, the ALJ is responsible for resolving
any conflicts in the evidence.”

St. Laurent v. Berryhill, No.

17-cv-053-LM, 2018 WL 1521854, at *3 (D.N.H. Mar. 28, 2018)
(citation omitted).

Furthermore, “the ALJ must specify the

evidentiary basis for his RFC determination.”

Canfield v. Apfel,

No. Civ. 00-267-B, 2001 WL 531539, at *5 (D.N.H. Apr. 19, 2001).
The Social Security Administration specifically requires
that the ALJ conduct “a function-by-function consideration of
each work-related ability before expressing the RFC in terms of
the exertional categories of ‘sedentary,’ ‘light,’ and so forth.”
Gallagher v. Astrue, No. 08-cv-163-PB, 2009 WL 929923, at *7
(D.N.H. Apr. 3, 2009) (citing SSR 96-8p, 1996 WL 374184, at *3
(1996)).

Such an analysis is important because it ensures that

an ALJ does not “overlook some of an individual's limitations or
restrictions, which could lead to an incorrect use of an
exertional category to find that the individual is able to do
past relevant work and an erroneous finding that the individual
is not disabled.”

Beaune v. Colvin, No. 14-cv-174-PB, 2015 WL

4205251, at *2 (D.N.H. July 10, 2015) (internal brackets and
quotation marks omitted).

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Nevertheless, “courts have held that a failure to [perform a
full function-by-function assessment] will not invalidate the
decision if the functional limitations can be inferred from the
record as a whole.”

Id. at *3.

Thus, “the relevant inquiry

should be whether the ALJ applied the correct legal standards and
whether the ALJ's determination is supported by substantial
evidence.”

Id. (internal quotation marks omitted); see also

MacKenzie v. Colvin, No. 15-cv-198-JD, 2016 WL 727115, at *3
(D.N.H. Feb. 23, 2016) (“[A]n ALJ's failure to assess all
functional limitations . . . is harmless if the functional
assessment is provided in the record.”).
Here, the court concludes that the ALJ’s RFC assessment is
erroneous both with respect to Trudnak’s limitations on walking
and standing, and with respect to the overall conclusion that
Trudnak could perform light work.
A. Trudnak’s Limitations on Walking and Standing
As noted above, the ALJ found that Trudnak could perform the
full range of light work.

A job is in the category of light work

“when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling
of arm or leg controls.”

20 C.F.R. § 404.1567(b).

As further

explicated by Social Security Ruling 83-10, “the full range of
light work requires standing or walking, off and on, for a total
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of approximately 6 hours of an 8-hour workday. Sitting may occur
intermittently during the remaining time.”

SSR 83-10, 1983 WL

31251, at *6.
It is not completely clear what evidence the ALJ relied on
to determine that Trudnak had the requisite abilities to stand
and walk during the workday.

The ALJ cited only the following

evidence: (1) at an emergency room visit for left-leg swelling in
July 2013, Trudnak reported that she had been “standing outside
all day at the races” the day before, Admin. Rec. at 416; and (2)
Trudnak’s job as a linen folder requires that she stand or walk
“as much as 6 hours per day,” id. at 29.
Without additional explanation, the first reason is
insufficient.

The record shows that, one month after her work

injury, Trudnak visited an emergency room complaining of pain and
swelling in her left leg.

Trudnak reported to the physician that

she had been “standing outside all day at the races yesterday.”
Id. at 416.

From this, the ALJ apparently found that Trudnak

could stand and walk for 6 hours per day on a regular and
continuing basis.

See SSR 96-8p, 1996 WL 374184, at *2 (“RFC is

the individual's maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and
continuing basis.”).

The court fails to see the reasonable

connection between Trudnak standing at an event on one occasion

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and the broad conclusion that she can stand and walk for 6 hours
per workday, especially given that the event precipitated an
emergency-room visit due to swelling and pain.
The second reason appears, on its face, to be a misstatement
of the evidence.

At her current part-time job as a linen folder,

Trudnak works up to 7.5 hours per day.

However, Trudnak

testified that she alternates between standing and sitting every
twenty minutes, and she takes approximately four thirty-minute
breaks in order to lie down in her van.

Thus, the time that she

spends standing or walking is far less than six hours per
workday.

Indeed, the ALJ noted this testimony in the decision,

but nonetheless concluded without elaboration that Trudnak stood
or walked for as much as six hours per day as a linen folder.
The ALJ’s decision reveals no rationale for this contrary
finding.

To be sure, the ALJ was free to credit or not credit

Trudnak’s description, but the ALJ could not “reject evidence for
no reason or the wrong reason.”

Hildalgo-Rosa v. Colvin, 40 F.

Supp. 3d 240, 247 (D.P.R. Aug. 28, 2014).

Therefore, the ALJ’s

finding relating to Trudnak’s limitations on walking and standing
is not supported by substantial evidence.

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B. ALJ’s Overall RFC Assessment
The ALJ’s overall conclusion that Trudnak could perform
light work appears to be based on the combination of Dr.
Rosenthall’s 2014 evaluation and Trudnak’s subsequent functional
improvements.

That is, the ALJ adopted Dr. Rosenthall’s opinion

as the baseline for Trudnak’s functional abilities after her June
2013 injury—sedentary work and a limit of two hours of walking
or standing—and then concluded that Trudnak’s abilities had
subsequently improved to the point that she could perform light
work.

The ALJ stated that this RFC finding “is supported by

[Trudnak’s] testimony regarding low back and left leg pain, the
objective evidence in the form of MRI results, and such
documentation of [Trudnak’s] treatment and examination findings.”
Admin. Rec. at 29.
The problem is that the ALJ’s conclusion is not tethered to
any expert opinion or evaluation.

Generally, an expert “is

necessary to provide a functional capacity assessment based on
medical data.”

McGowen v. Colvin, No. 15-cv-329-JD, 2016 WL

1029480, at *7 (D.N.H. Mar. 15, 2016).

Although an ALJ may

render “common-sense judgments about functional capacity based on
medical findings,” id., in this case the ALJ appears to have
relied on raw medical data from Trudnak’s physical examinations
to reach the conclusion that Trudnak’s functional abilities had

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improved to the level that she could perform light work.
is something the ALJ cannot do.”

“This

Wallace v. Colvin, No. 2:12-CV-

578, 2013 WL 1346559, at *6 (N.D. Ala. Apr. 1, 2013) (concluding
that ALJ inappropriately considered “the doctor's reports
regarding [claimant’s] range of motion, the results of his
straight leg raise tests, and the findings about his motor
strength and sensory functioning,”); see also Willey v. Colvin,
No. 15-cv-368-JL, 2016 WL 1756628, at *6 (D.N.H. Apr. 7, 2016), R
& R approved by 2016 WL 1733444 (D.N.H. Apr. 29, 2016).
Moreover, the ALJ’s vague allusions to Trudnak’s testimony,
the “objective evidence,” and the other documentation in the
record do not constitute an adequate explanation that would
permit meaningful judicial review to “determine whether the
administrative decision is based on substantial evidence.”
Crosby v. Heckler, 638 F. Supp. 383, 385-86 (D. Mass. 1985).
Consequently, a remand is required for further explanation and
investigation.

See id.

For these reasons, the court remands the case for further
consideration of Trudnak’s RFC and, once determined, of her
ability to perform work existing in significant numbers in the
national economy.

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II.

Assistive Devices
Trudnak next argues that the ALJ never explicitly determined

whether her various assistive devices—a cane, crutches, and
walker—were medically necessary.

Trudnak cites Social Security

Ruling 96-9p for the proposition that the ALJ must make such a
determination when the record indicates that the claimant relies
on a handheld assistive device.
at *7 (1996).

See SSR 96-9p, 1996 WL 374185,

The Acting Commissioner responds that the ALJ did

make such a determination and that it was supported by
substantial evidence.
The court declines to address this issue.

Given the court’s

remand order, as well as the fact that Trudnak’s use of assistive
devices is related to and intertwined with the general RFC
determination, the court considers it appropriate for the ALJ to
consider this issue again as part of the overall reconsideration
of the RFC assessment.
CONCLUSION
For the foregoing reasons, the Acting Commissioner's motion
to affirm (doc. no. 12) is denied, and Trudnak’s motion to
reverse (doc. no. 11) is granted to the extent that the case is
remanded to the Acting Commissioner for further proceedings,
pursuant to sentence four of 42 U.S.C. § 405(g).

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The clerk of

the court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
May 3, 2018
cc:

Counsel of Record

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