Rutherford v. US Social Security Administration, Commissioner
Filing
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///ORDER granting 4 Motion to Reverse Decision of Commissioner; denying 5 Motion to Affirm Decision of Commissioner. The case is reversed and remanded for further proceedings under Sentence Four of § 405(g).The clerk of court shall enter judgment accordingly and close the case. So Ordered by Judge Samantha D. Elliott. (gla)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Shane Rutherford
v.
Civil No. 21-cv-805-SE
Opinion No. 2022 DNH 062
Kilolo Kijakazi, Acting Commissioner,
Social Security Administration
O R D E R
Shane Rutherford challenges the denial of his application
for disability insurance benefits and supplemental security
income pursuant to 42 U.S.C. § 405(g). Rutherford moves to
reverse the Acting Commissioner’s decision, arguing that the
Administrative Law Judge (“ALJ”) erred in determining his
residual functional capacity. The Acting Commissioner moves to
affirm. For the reasons discussed below, the court grants
Rutherford’s motion to reverse and denies the Acting
Commissioner’s motion to affirm.
STANDARD OF REVIEW
For purposes of review under § 405(g), 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
Sacilowski v. Saul, 959 F.3d 431, 437 (1st Cir. 2020). The court
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defers to the ALJ’s factual findings if they are supported by
substantial evidence. Biestek v. Berryhill, 139 S. Ct. 1148,
1153 (2019). Substantial evidence is “more than a mere
scintilla,” id., and exists, even if the record could support a
different conclusion, when “a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate
to support [the ALJ’s] conclusion,” Irlanda Ortiz v. Sec’y of
Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991); accord
Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis, “such that the answer
at each step determines whether progression to the next is
warranted.” Sacilowski, 959 F.3d at 433; 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4).1 The claimant “has the burden of
production and proof at the first four steps of the process.”
Sacilowski, 959 F.3d at 433. At the first three steps, the
claimant must prove that (1) he is not engaged in substantial
gainful activity; (2) he has a severe impairment; and (3) the
Because the pertinent regulations governing disability
insurance benefits at 20 C.F.R. Part 404 are the same as the
pertinent regulations governing supplemental security income at
20 C.F.R. Part 416, the court will cite only Part 404
regulations. See Reagan v. Sec'y of Health & Human Servs., 877
F.2d 123, 124 (1st Cir. 1989).
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impairment meets or equals a listed impairment. 20 C.F.R. §
404.1520(a)(4)(i)-(iii).
If the claimant meets his burden at the first two steps of
the sequential analysis, but not at the third, the ALJ assesses
the claimant’s residual functional capacity (“RFC”) before
proceeding to Step Four. Id. § 404.1520(e). RFC measures the
maximum amount a person can do in a work setting despite the
limitations caused by his impairments. Id. § 404.1545(a)(1). At
Step Four, the claimant must establish that his RFC is
insufficient to perform any of his past relevant work. Id. §
404.1520(a)(4)(iv). If the claimant can perform his past
relevant work, the ALJ will find that the claimant is not
disabled. See id. § 404.1520(a)(4)(iv). If the claimant cannot
perform his past relevant work, the ALJ proceeds to Step Five,
in which the Social Security Administration has the burden of
showing that jobs exist in the economy which the claimant can do
in light of the RFC assessment as well as the claimant’s age,
education, and work experience. See id. § 404.1520(a)(4)(v). If
such jobs exist, the claimant is not disabled. Id. If they do
not, he is disabled. Id.
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BACKGROUND
A detailed factual background can be found in Rutherford’s
statement of facts (doc. no. 4-2) as supplemented by the Acting
Commissioner’s statement of facts (doc. no. 6) and in the
administrative record (doc. no. 3). The court provides a brief
summary of the case here.
I.
Factual Background
After battling stomach issues in early 2019, Rutherford’s
doctor diagnosed him with irritable bowel syndrome in March. In
August of the same year, Rutherford’s doctor changed his
diagnosis to Crohn’s disease. In late-2019, his doctor
prescribed Stelara, which was administered by an injection every
eight weeks, to treat his symptoms.2
The severity of Rutherford’s symptoms varied significantly
throughout 2019 and 2020. At different points, he complained of
severe abdominal pain which could last for hours at a time. The
frequency of his bowel movements fluctuated greatly, from as few
as four per day to as many as 12-14 per day or more, often
At the hearing before the ALJ, Rutherford testified that
his doctor had recently reduced the time between his Stelara
injections from every eight weeks to every four weeks to help
with his symptoms. Admin. Rec. at 50.
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coming with little warning. According to Rutherford’s treatment
notes, his symptoms improved immediately after he received a
Stelara injection, but gradually worsened until his next dose.3
II.
Procedural Background
On August 17, 2019, Rutherford filed an application for
disability insurance benefits. Shortly thereafter, on August 29,
2019, he filed an application for supplemental security income.
In both applications, Rutherford alleged a disability onset date
of March 15, 2019, when he was 40 years old, due to Crohn’s
disease and anxiety.
The Social Security Administration denied Rutherford’s
applications at the initial level and again after a request for
reconsideration. Rutherford then requested a hearing in front of
an ALJ. On February 25, 2021, the ALJ held a telephonic hearing,
during which Rutherford testified and was represented by an
attorney.
On May 19, 2021, the ALJ issued an unfavorable decision.
Under Step One and Step Two, he found that Rutherford had not
engaged in substantial gainful activity since the onset date of
As discussed below, Rutherford alleged a disability due to
both Crohn’s disease and anxiety. Because he does not challenge
the ALJ’s RFC assessment other than as it pertains to his
limitations from Crohn’s disease, the court does not address
Rutherford’s other symptoms or limitations.
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his impairments and had the following severe impairments:
Crohn’s disease, asthma, anxiety disorder, and depressive
disorder. Under Step Three, the ALJ found that none of
Rutherford’s impairments met or equaled the criteria of any
listed impairment. He further found that Rutherford had the RFC
to perform light work with certain limitations. Relevant to
Rutherford’s arguments in his motion to reverse, the RFC
assessment included a limitation that Rutherford would need to
work in proximity to a bathroom and be able to take up to four
unscheduled restroom breaks per day for five minutes each time.
In response to hypothetical questions posed by the ALJ,
the vocational expert, Connie Guillory, testified to her opinion
that a person with Rutherford’s age, education, past work
experience, and RFC (as assessed by the ALJ), could not perform
Rutherford’s past relevant work, but could perform the job
duties of occupations existing in significant numbers in the
national economy. These occupations included hand packager, subassembler, and inspector. Based on the ALJ’s RFC assessment and
Guillory’s testimony, the ALJ found at Step Four of the
sequential process that Rutherford could not perform his past
relevant work, but at Step Five that Rutherford could perform
other jobs and was not disabled.
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Guillory testified that the limitation regarding restroom
usage in the ALJ’s RFC assessment—that the individual could take
up to four restroom breaks per day lasting up to five minutes
each—was a determinative factor in her opinion. Admin. Rec. at
65. In response to additional hypothetical questions posed by
the ALJ, Guillory testified that a person with Rutherford’s RFC
who was instead limited to four ten-minute restroom breaks,
rather than four five-minute restroom breaks, could not do any
jobs that existed in significant numbers in the national
economy. See id.
On September 7, 2021, the Appeals Council denied
Rutherford’s request for review, making the ALJ’s decision the
final decision of the Acting Commissioner for purposes of
judicial review. 20 C.F.R. § 422.210(a); see Sims v. Apfel, 530
U.S. 103, 107 (2000). This action followed.
DISCUSSION
Rutherford argues that the ALJ erred in his RFC assessment.
Specifically, he challenges the ALJ’s determination that he
could do light work limited by his gastrointestinal symptoms
only in that he would need to work in proximity to a bathroom
and be able to take up to four unscheduled bathroom breaks per
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day for five minutes each time.4 The Acting Commissioner contends
that the ALJ’s decision is supported by substantial evidence.
A claimant’s RFC is “the most [the claimant] can still do
despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1). It must
be crafted by an ALJ based on all relevant evidence in the
record. Id. In so doing, the ALJ may “piece together the
relevant medical facts from the findings and opinions of
multiple physicians,” Evangelista v. Sec’y of Health & Human
Servs., 826 F.2d 136, 144 (1st Cir. 1987), but may sometimes
incorporate “common-sense judgments about functional capacity”
based upon those findings, Gordils v. Sec'y of Health & Human
Servs., 921 F.2d 327, 329 (1st Cir. 1990). The ALJ, however, may
not “interpret raw medical data in functional terms” or
substitute his own opinion on medical issues. Nguyen, 172 F.3d
at 35.
In assessing Rutherford’s RFC, and in particular his
physical limitations, the ALJ stated that his findings were
supported by “the opinions of Dr. Staley, Dr. Platter, . . . and
Rutherford also challenges the ALJ’s finding that the
opinion of his treating physician about limitations on
Rutherford’s ability to work was not persuasive. Because, as
discussed below, the ALJ’s RFC assessment is flawed for other
reasons, the court need not address this issue.
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the medical evidence of record.”5 Admin. Rec. at 34. Rutherford
argues in his motion that none of the evidence the ALJ cites
supports the limitation in the RFC assessment concerning his
restroom usage. The court agrees.
I.
Dr. Staley and Dr. Platter
Dr. Norman Staley and Dr. Howard Platter separately
evaluated Rutherford’s physical limitations in 2020. Dr. Staley
opined in March that Rutherford could do work without exertional
or postural limitations but would need to work near a restroom
and get frequent breaks. Dr. Platter stated in June that
Rutherford could do light exertional work, limited by the need
to work near a restroom. The ALJ found both opinions persuasive
because they were supported by and consistent with the medical
evidence, including treatment records.
Rutherford argues that neither opinion supports the
physical limitations in the ALJ’s assessment. Specifically, he
argues that neither opinion provides any basis for the ALJ to
find that Rutherford would need only four bathroom breaks
limited to five minutes each.
The ALJ also stated that the RFC assessment was supported
by the opinions of other physicians who evaluated Rutherford’s
anxiety issues and mental limitations. As mentioned above, those
opinions are not relevant to Rutherford’s arguments in his
motion.
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The Acting Commissioner does not argue that either Dr.
Staley’s or Dr. Platter’s opinion directly supports the
limitation regarding Rutherford’s restroom usage. Instead, she
contends, in cursory fashion, that it is reasonable to conclude
that the opinions support the ALJ’s finding.
Assuming without deciding that the ALJ made a reasonable
inference that Dr. Staley’s and Dr. Platter’s opinions support a
limitation that Rutherford would need to use the restroom four
times during an eight-hour workday, nothing in either doctor’s
opinion supports a limit of five minutes per restroom break.
Neither doctor offered any opinion on the length of Rutherford’s
needed restroom breaks, see Admin. Rec. at 97-108 (Dr. Staley’s
opinion); id. at 111-123 (Dr. Platter’s opinion), and the ALJ
cites nothing from either doctor’s assessment that would allow
him to make an inference as to the length of the breaks.
Therefore, Dr. Staley’s and Dr. Platter’s opinions do not
support the ALJ’s RFC assessment.
II.
Medical Record
In the decision, the ALJ states that the limitations in the
RFC assessment are also supported by the medical evidence of
record. However, neither the ALJ’s decision nor the Acting
Commissioner points to anything in the record that supports a
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limitation that Rutherford would need only four restroom breaks
for five minutes each.
The closest the ALJ comes to pointing to evidence to
support that limitation is a January 2021 progress note from
Rocket Nutrition showing Rutherford’s report that he was having
four bowel movements per day in December 2020. Admin. Rec. at
1008. But, as the ALJ detailed in his decision, and as
Rutherford states in his motion, the frequency of Rutherford’s
bowel movements varied greatly, from as few as four per day to
as many as 12-14 per day, and further varied depending on how
recently he received his latest Stelara injection. See Admin.
Rec. at 30, 32. Rutherford also testified at the hearing that
during “flare-ups,” he would need to use the restroom as often
as 20 times per day, which was consistent with the opinion of
Rutherford’s treating gastroenterologist, Dr. Sophia Swanson.
Admin. Rec. at 60.
Even if the ALJ’s determination that Rutherford would need
only four restroom breaks were supported by substantial
evidence, nowhere does the ALJ point to any evidence supporting
a limitation of five minutes for each bathroom break. The only
evidence in the record that either the ALJ or the Acting
Commissioner cites regarding the length of Rutherford’s restroom
breaks is Dr. Swanson’s opinion and Rutherford’s testimony
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during the hearing asserting that Rutherford’s restroom breaks
lasted at least 15 minutes.6 Admin. Rec. at 778-81 (Dr. Swanson’s
opinion); id. at 60 (Rutherford’s testimony).
III. RFC Assessment
The ALJ’s RFC assessment includes a limitation that
Rutherford would need to use the restroom four times, for five
minutes each time, during an eight-hour workday. Neither the
ALJ’s decision nor the record evidence offers any support for
that limitation or allows the court to conclude that a
reasonable mind could find the record adequate to support the
ALJ’s conclusion. See, e.g., Picard v. Berryhill, No. 2:16-cv00636-JHR, 2018 WL 1370681, at *3 (D. Me. Mar. 16, 2018)
(“[W]hen failures to explicate and/or even address material
issues prevent a reviewing court from concluding that the ALJ
reached a supportable result via an acceptable pathway,”
reversal and remand are warranted.).
For those reasons, the record lacks substantial evidence to
support the ALJ’s RFC assessment. As a result, the vocational
expert’s opinion about available jobs, based on an erroneous
hypothetical, does not constitute substantial evidence to
Dr. Swanson opined that Rutherford’s restroom breaks
lasted up to 50 minutes. Admin. Rec. at 780.
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support the Acting Commissioner’s burden at Step Five. See
Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374, 375 (1st
Cir. 1982).
CONCLUSION
For the foregoing reasons, Rutherford’s motion to reverse
(document no. 4) is granted. The Acting Commissioner’s motion to
affirm (document no. 5) is denied.
The case is reversed and remanded for further proceedings
under Sentence Four of § 405(g).
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Samantha D. Elliott
United States District Judge
May 9, 2022
cc:
Counsel of Record.
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