Leo v. Commissioner of Social Security
Filing
17
DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings to the extent that the Commissioners decision is reversed, and the matter is remanded solely for calculation and payment of benefits for the closed period at issue; and denying 14 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/19/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
SUSAN LEO,
1:18-cv-00214-MAT
DECISION AND ORDER
Plaintiff,
-vsCOMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
I. Introduction
Susan Leo (“Plaintiff”), represented by counsel, brings this
action under Title II of the Social Security Act (“the Act”),
seeking review of the final decision of the Commissioner of Social
Security
(“the
Commissioner”
or
“Defendant”),
denying
her
application for Disability Insurance Benefits (“DIB”). The Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c). Presently before the Court are the parties’ competing
motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the reasons set forth below,
Plaintiff’s motion is granted,
and Defendant’s motion is denied.
The Commissioner’s decision is reversed, and the matter is remanded
for the calculation and payment and benefits.
II. Procedural History
Plaintiff protectively filed for Title II benefits on February
27, 2017, alleging an onset date of February 14, 2000. The claim
was initially denied on April 26, 2017. Plaintiff requested a
hearing, which was conducted by administrative law judge Lynette
Gohr (“the ALJ”) on September 20, 2017, in Buffalo, New York.
Plaintiff appeared with counsel and testified. Dawn Blythe, a
vocational expert (“the VE”), also testified.
The
ALJ issued
an
unfavorable
decision,
see
T.9-18,1
on
October 24, 2017, noting that there was a prior closed period of
disability with a decision date of November 18, 2006. Applying the
principle of res judicata, the ALJ determined that Plaintiff’s
alleged onset date could not be adjudicated until November 18,
2006. Therefore, the ALJ ruled from November 19, 2006, through the
date last insured of December 31, 2009. However, the ALJ excluded
the time between January 2008, and September 2008, because she
found at step one of the five-step sequential evaluation that
Plaintiff engaged in substantial gainful activity by working fulltime as a substitute English teacher during that 9-month period. At
step two, the ALJ determined that Plaintiff’s ulcerative colitis
and status post-proctocolectomy with ileal pouch anastomosis and
loop ileostomy and closure were “severe” impairments.2 At step
three, the ALJ found that Plaintiff’s impairments did not meet or
medically
equal
a
listed
impairment,
including
Listing
5.06
1
Citations to “T.” refer to pages in the certified administrative transcript
(Docket No. 6).
2
The ALJ also considered other medical issues alleged by Plaintiff or
referenced in the record, including post-traumatic stress disorder, rheumatoid
arthritis, right ankle surgery in 1999 with related deep vein thrombosis, back
pain, and chest pain. T.12-13. However, these impairments were found non-severe,
a finding which Plaintiff does not challenge in this appeal.
-2-
(Ulcerative Colitis). The ALJ then assessed Plaintiff as having the
residual
functional
capacity
(“RFC”)
to
perform
a
range
of
sedentary work as defined in 20 C.F.R. § 404.1567(a) except that
she was limited to performing simple, routine tasks and making
simple work-related decisions; she needed minimal changes in work
routines and processes; and she could not be subjected to strict
production quotas. T.13. The ALJ also found that Plaintiff must be
allowed 3 bathroom breaks of 5 minutes’ duration each per day, in
addition to normal breaks and mealtimes, and that her workstation
must be located in close proximity to a bathroom, defined as no
greater than three minutes’ walking distance. Id. Lastly, the ALJ
found that Plaintiff must be allowed to stand for five minutes,
while remaining on task, after having sat for 45 minutes. Id. At
step four, the ALJ determined that Plaintiff was 47 years-old at
her date last insured, had a master’s degree in education, and
while she previously worked as an office manager and as a long-term
substitute teacher, she did not have any past relevant work. The
ALJ relied on the VE’s testimony to find that, based on Plaintiff’s
age, education, work experience, and RFC, she is able to perform
the requirements of the following representative occupations that
exist in significant numbers in the national economy: call out
operator, charge account clerk, and document preparer. At step
five, the ALJ entered a finding a “not disabled.”
-3-
Plaintiff requested review of the ALJ’s decision by the
Appeals Council, which was denied on December 11, 2017. Plaintiff
then timely commenced this action.
III. Scope of Review
A
district
court
may
set
aside
the
Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “Substantial evidence means ‘such relevant evidence
as
a
reasonable
mind
might
accept
as
adequate
to
support
a
conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
(quotation
omitted).
The
reviewing
court
nevertheless
must
scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
(2d Cir. 1998) (citation omitted). “The deferential standard of
review
for
substantial
evidence
does
not
apply
to
the
Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172,
179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984)).
-4-
IV. Discussion
A.
Summary of the Parties’ Arguments
Plaintiff
contends
that
reversal
of
the
Commissioner’s
decision is required on the following grounds: (1) the highly
specific
limitation
in
the
RFC
regarding
bathroom
breaks
is
unsupported by substantial evidence, as is the sit/stand option
(Point
I);
(2)
retrospective
the
ALJ
medical
failed
opinion
to
offered
properly
by
evaluate
Plaintiff’s
the
treating
physician insofar as she weighed the opinion against the RFC rather
than
the
record
as
a
whole
(Point
II.A);
and
(3)
the
ALJ
substituted her lay opinion for that of the treating physician
(Point II.B). The Commissioner responds that the RFC is supported
by ample evidence and that the treating source’s opinion is merely
a
summary
of
disability,
the
and
medical
thus
was
records
not
with
entitled
a
bare
to
be
conclusion
afforded
of
any
significant weight.
B.
Points I and II.A: Errors in Weighing the Treating Source
Opinion and Formulating Limitations in the RFC Regarding
Plaintiff’s Need to Use the Bathroom and Alternate
Between Sitting and Standing
1.
Relevant Medical Records and Plaintiff’s Testimony
Plaintiff served as a flight medic in the United States Marine
Corps during
the
Desert Storm
conflict
and was
deployed
for
fourteen months throughout the Middle East. T.439. She did not
engage in combat but witnessed it; she subsequently was diagnosed
-5-
with post-traumatic stress disorder. Id. While she was deployed,
Plaintiff developed ulcerative colitis. T.242. On July 3, 2001,
Dr. Victor Fazio at the Cleveland Clinic Digestive Disease and
Surgery
Institute
J-pouch
surgery
to
(“Cleveland
address
Clinic”)
Plaintiff’s
performed
left-sided
a
two-stage
refractory
colitis. T.242; 275-77.
On September 12, 2003, the Veteran’s Administration (“VA”)
issued a decision finding Plaintiff 100 percent disabled based on
her service-connected condition of ulcerative colitis with history
of amnestic disorder. T.136.
In February 2006, Plaintiff was having twelve to fifteen bowel
movements a day, with nighttime leakage for which she wore adult
diapers. T.250. She had been told she had kidney stones related to
her diarrhea. Id. Dr. Fazio, who had performed her surgery in July
2001, diagnosed her with irritable pouch syndrome versus bacterial
overgrowth. T.251.
A pouch biopsy performed on September 29, 2008, showed mild
chronic active enteritis; and squamous mucosa and rectal mucosa
with chronic active colitis, ulcer, and granulation tissues. T.270.
Gastroenterologist Dr. James Church of the Cleveland Clinic noted
that Plaintiff was having five to six bowel movements per day and
“constant” diarrhea. T.292.
On July 17, 2010, Plaintiff saw Dr. Matthew Carrell of the VA
and reported having eight to ten watery bowel movements daily and
-6-
nighttime
rectal
ciprofloxacin,
leakage
an
after
antibiotic.
being
T.711.
told
Dr.
to
Carrell
stop
taking
noted
that
Plaintiff had symptoms that suggested pouchitis.3 He deferred
prescribing ciprofloxacin due to the risks of long-term antibiotic
usage and because she was to undergo a flexible sigmoidoscopy later
that week. T.712-13.
At the hearing, Plaintiff testified that she had worked for a
period of time in the 2007-2008 school year as a substitute English
teacher.
T.32.
She
was
offered
another
teaching
position
in
September 2008, but did not take it due to symptoms from her
ulcerative colitis and kidney stones. T.33. While she was working,
she had to take frequent breaks to go to the bathroom, so the
school accommodated her by providing her with a teaching assistant.
T.33. In addition to experiencing abdominal cramping, bloating, and
diarrhea, T.34, she was “was experiencing dehydration because [she]
was trying not to eat during the classroom hours so that [she] can
make it through without going to the bathroom too much.” Id.
Plaintiff explained that following one meal, she might have to go
to the bathroom four times. Id. While she was teaching, she had to
take eight to ten bathroom breaks during the school day. Id.
3
“Pouchitis. Acute inflammation of the mucosa of an ileal reservoir or pouch
that has been surgically created, usually following total colectomy for
inflammatory bowel disease or multiple polyposis.” Stedman’s Medical Dictionary
(“Stedman’s”), 28th ed., Lippincott, Williams & Wilkins, 2006, p. 1550.
-7-
As far as daily activities, “showering was always a problem”
and “dressing was too” as she needed help from her husband to put
her support stockings on. T. 37. Plaintiff could not do laundry
because it was too heavy, but she could fold clothes. T.39.
Plaintiff’s husband would sometimes take her out to eat, but they
had to be careful and go places close to home. Id. If she had
active symptoms, she did not go to the movies. T.40. After 2008,
Plaintiff reported, her condition worsened. T.36. During this
period, she was treating at the VA, the Cleveland Clinic, and with
Dr. Raymond Tuoti. T.36. From 2008 to 2009,
of active periods of colitis. T.40.
Plaintiff had “a lot”
The types of food she ate and
her stress levels affected her colitis. T.41. She explained that
“[s]ometimes it comes out of nowhere.” Id. She “just didn’t want to
leave the house because of it[.]” Id. When her colitis was active,
Plaintiff experienced chronic fatigue symptoms. T.44.
Plaintiff testified that when needed to use the bathroom, she
had to do so urgently. T.54. If she felt the urge to use the
bathroom, she would be unable to wait even ten minutes. T.54.
Plaintiff (and those around her) could actually hear her J-pouch
empty; “[she] could hear it before it gets ready to just release.”
T.55. At that point she would “quickly run to the bathroom.” Id. To
try to control her need to defecate she would stop eating and
drinking. T.54. For instance, because she knew she had her hearing
at 11:00 a.m., she stopped eating the day before at 5:00. Id. At
-8-
other times, she wore diapers. Id. Fasting and restricting her
fluid intake, in order to limit her trips to the bathroom, resulted
in her becoming dehydrated and suffering from kidney stones. T.35.
2.
Treating Physician Opinion
In September 2017, Dr. Church provided a retrospective medical
statement based on his treatment of Plaintiff and his review of her
medical records. See T.1339-41. Dr. Church noted that even after
Plaintiff’s July 2001 J-pouch surgery to address her ulcerative
colitis which had failed medical treatment, she continued to have
“quite extreme frequency of defecation” along with abdominal cramps
and bloating. T.1339. Dr. Church observed that “[a]ll of these
[symptoms] are part of the spectrum of pouch-related complications
although [Plaintiff’s] were more severe than average.” T.1339. At
her follow-up, Dr. Church noted that, “[e]ndoscopically, the pouch
looked normal[,] but the different physiology that pouch surgery
can produce is sometimes accompanied by these sort of symptoms
without there being any notable disease to be diagnosed.” T.1340.
A possible cause was that “the small intestine is just unsuited for
uses of fecal reservoir because it doesn’t normally provide this
function.” Id. Dr. Church related that when he saw Plaintiff in
September 2008, she had “diarrhea constantly and had developed an
anal skin tag[,]” id., even though her pouch and terminal ilium
looked healthy
and
a
biopsy
showed some
mild
chronic
active
enteritis. Dr. Church told her that “this was the way her pouch was
-9-
functioning” and recommended that she return in two years. Id. In
2010, Plaintiff still reported having six bowel movements a day
with episodes of bloating, cramps, and diarrhea. In addition, she
was having upper quadrant pain. Id. The cause for this was unknown
but Dr. Church explained that it can occur in situations where the
surgery did not lend itself to good intestinal functioning; such
patients “are doomed to experience bowel episodes for the rest of
their life.” T.1341.
In Dr. Church’s opinion, it was
obvious from this brief history of [Plaintiff’s] care
here at the Cleveland Clinic that she became disabled as
a result of surgery for ulcerative colitis. Sometimes
even the ulcerative colitis can be disabling because of
the urgency and the need to drop everything and make it
to the bathroom to prevent an episode of incontinence. .
. . In addition, [Plaintiff] seems to suffer from a much
higher stool frequency than average. There are several
possible causes for this, but one would include a bowel
that is just more active than normal, a pouch that is
smaller or less than compliant than normal, or a pouch
that has some issue with bowel patency above or below it.
T.1340.
3.
The ALJ Failed
Source Opinion
to
Properly
Weigh
the Treating
It is undisputed that Dr. Church is a treating source, see
20 C.F.R. § 404.1527(a)(2) (eff. until Mar. 27, 2017), who provided
a medical opinion, see id. § 404.1527(a)(1). Since Plaintiff filed
her claim in February 2017, the regulations codifying the treating
physician presumption of deference were still in effect. See 20
C.F.R. § 404.1527 (“For claims filed (see § 404.614) before March
-10-
27, 2017, the rules in this section apply. For claims filed on or
after
March
27,
2017,
the
rules
in
§
404.1520c
apply.”).
“Generally, [the SSA] give[s] more weight to medical opinions from
[a claimant’s] treating sources, since these sources are likely to
be the medical professionals most able to provide a detailed,
longitudinal picture of [his or her] medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports
of individual examinations, such as consultative examinations or
brief hospitalizations.” 20 C.F.R. § 404.1527(c)(2). “If [the SSA]
find[s] that a treating source’s medical opinion on the issue(s) of
the
nature
and
severity
of
[a
claimant’s]
impairment(s)
is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, [the SSA] will give it
controlling weight.” Id.
Here, the ALJ assigned only “some weight” to Dr. Church’s
medical opinion because it did “not change the above narrative
[sic],” T.15 and is “not inconsistent with the above residual
functional capacity assessment.” id. This was clearly erroneous for
multiple reasons. First, the regulations dictate that a medical
opinion be evaluated using certain factors, including the nature
and extent of the treatment relationship, supportability of the
opinion, consistency with the record as a whole, and the provider’s
-11-
specialization. See 20 C.F.R. § 404.1527(c)(1)-(6) (eff. until
Mar. 27, 2017). Neither a “narrative” constructed by the ALJ nor an
RFC assessment are mentioned as proper factors to be considered
when evaluating a treating source opinion.
The
second,
more
problematic
error,
is
the
boilerplate
language utilized by the ALJ to describe Dr. Church’s opinion as
“not inconsistent with the above residual functional capacity.” The
Court
has
found
nothing
in
the
regulations
or
the
caselaw
supporting the propriety of assigning weight to a medical opinion
based upon whether the ALJ deems the opinion to be congruent with
the ALJ’s own RFC finding. Rather, this type of language has been
rejected by this Court and others as confounding the ability for
meaningful review and improperly inverting the necessary analytical
steps. See, e.g., Faherty v. Astrue, No. 11–CV–02476(DLI), 2013 WL
1290953, at *14 (E.D.N.Y. Mar. 28, 2013) (“The ALJ explained the
reason
for
giving
Dr.
Tranese’s
medical
source
statement
significant weight was that it was consistent with her RFC. Such
reasoning is circular and flawed. The ALJ should use medical
opinions to determine [p]laintiff’s RFC, and, therefore, cannot
give medical opinions weight based on their consistency with the
RFC.”) (internal citation to record omitted); Bjornson v. Astrue,
671
F.3d
640,
645
(7th
Cir.
2012)
(“One
problem
with
the
boilerplate is that the assessment of the claimant’s ‘residual
functional capacity’ (the bureaucratic term for ability to work)
-12-
comes
later
in
the
administrative
law
judge’s
opinion,
not
‘above’—above is just the foreshadowed conclusion of that later
assessment. A deeper problem is that the assessment of a claimant’s
ability to work will often (and in the present case) depend heavily
on the credibility of her statements concerning the ‘intensity,
persistence and limiting effects’ of her symptoms, but the passage
implies that ability to work is determined first and is then used
to
determine
the
claimant’s
credibility.
That
gets
things
backwards.”)).
The regulations define “[m]edical opinions” as “statements
from acceptable medical sources that reflect judgments about[,]”
inter
alia,
“what
[the
claimant]
can
still
do
despite
impairment(s), and [his or her] physical or mental restrictions[,]”
20 C.F.R. § 404.1527(a), i.e., the claimant’s RFC. It is simply not
logical to decide a claimant’s RFC prior to weighing the medical
opinions
regarding
the
“the
nature
and
severity
of
[her]
impairment(s), including [her] symptoms, diagnosis and prognosis,”
id. See Burton v. Colvin, No. 6:12-CV-6347 MAT, 2014 WL 2452952, at
*11 (W.D.N.Y. June 2, 2014) (“Because ‘[t]he assessment of a
claimant’s ability to work will often depend on the credibility of
her statements concerning the intensity, persistence and limiting
effects of her symptoms[,]’ Otero v. Colvin, 12–CV–4757, 2013 WL
1148769, at *7 (E.D.N.Y. Mar. 19, 2013), it is not logical to
decide a claimant’s RFC prior to assessing her credibility.”)
-13-
(alterations in original). Here, the fact that the ALJ stated that
Dr. Church’s opinion was only entitled to limited because it
“otherwise does not rebut the above residual functional capacity
assessment,” id., confirms that the ALJ “[got] things backwards[,]”
Bjornson, 671 F.3d 645.
Evaluating Dr. Church’s medical opinion with reference to the
proper regulatory factors compels the conclusion that it should
have been given controlling weight. The nature and extent of the
treatment relationship and the provider’s specialization weigh in
favor
of
deferring
to
Dr.
Church’s
opinion:
He
had
treated
Plaintiff for several years and was a colleague of Dr. Fazio, who
performed the two-stage J-pouch surgery. In addition, Dr. Church is
a specialist in his field of gastroenterology. That Dr. Church’s
opinion was retrospective and Plaintiff was seen once in 2008 does
not, in this Court’s view, undermine his opinion or the severity of
Plaintiff’s limitations due to her impairments. “The absence of
contemporaneous medical evidence does not automatically preclude a
finding of disability.” Rose v. Barnhart, No. 01 CIV. 1645 (JSM),
2003 WL 1212866, at *5 (S.D.N.Y. Mar. 14, 2003) (citing Arnone v.
Bowen, 882 F.2d 34, 39 (2d Cir. 1989) (“Arnone’s post–1980 evidence
is not irrelevant to the question whether he had been continuously
disabled since 1977.”); other citations omitted)); see also Rose,
2003 WL 1212866, at *5 (finding that ALJ erred in “focus[ing]
entirely on the absence of contemporaneous medical evidence”;
-14-
“since there was no contemporaneous treatment record, the ALJ
should have considered the possibility of retrospective diagnosis
and testing”) (citing Martinez v. Massanari, No. 01 Civ. 2114, 2003
WL 179771, *4 (S.D.N.Y. Jan. 27, 2003)). Moreover, there is no
suggestion in the record that additional visits to the Cleveland
Clinic or to other medical providers were required of Plaintiff, or
that any further treatment could reasonably have been expected to
have improved her symptoms to the point she was able to work.
Dr. Church’s opinion reflects that Plaintiff apparently was at her
“baseline” and that the symptoms she experienced at her baseline
were still disabling. T.1340.
It is well settled that “[t]he ALJ is not permitted to
substitute [her] own expertise or view of the medical proof for the
treating physician’s opinion or for any competent medical opinion.”
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (citing Snell v.
Apfel, 177 F.3d 128, 131 (2d Cir. 1999)); see also
Wagner v.
Secretary of Health and Human Servs., 906 F.2d 856, 862 (2d Cir.
1990)
(“[A]
circumstantial
critique
by
[a]
non-physician[
],
however thorough or responsible, must be overwhelmingly compelling”
to justify a denial of benefits). Here, the ALJ’s critique of
Dr. Church’s opinion was not “thorough,” insofar as it neglected to
consider the appropriate regulatory factors. Moreover, it is not
“overwhelmingly compelling” when considered against Dr. Church’s
specialization and expertise and the record as a whole. In short,
-15-
the Court finds that the ALJ “here improperly ‘set [her] own
expertise
against
that
of’
the
treating
physician.”
Rosa
v.
Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (quotation omitted;
alteration in origina).
4.
The Limitation in the
Bathroom Breaks
RFC
Assessment
Regarding
The key component of the ALJ’s RFC assessment challenged by
Plaintiff pertains to the frequency of her need to take bathroom
breaks due to bowel movements and the unpredictable timing and
urgency of those episodes. The ALJ concluded that it was “clear”
that Plaintiff’s ulcerative colitis “was better managed during the
period at issue with the claimant complaining of only 5-6 daytime
bowel movements.” T.15, 292. To quantify Plaintiff’s need to use
the restroom during the workday for purposes of formulating the
RFC, the ALJ reasoned that
[i]f waking hours of a day are 16 and of that, 8 are
working, then the claimant could be expected to have 3
bowel movements per workday. In Dr. Church’s letter, he
notes 15 daytime bowel movements well before the period
at issue and only 6 per day shortly after the date last
insured (Ex. 6F). At the February 2008 follow-up visitthat is, during the period at issue, the claimant
reported 5-6 bowel movements per day (Ex. 2F/9). The
evidence therefore supports that the claimant was having
at most 6 daytime bowel movements during the period at
issue which would likely mean 3 per workday. Such a need
is accommodated for in the above residual functional
capacity assessment.
T.15. The ALJ then accounted for Plaintiff’s condition by finding
her limited to a range of work in which she would be allowed to
take three bathroom breaks of five minutes’ duration each, per day,
-16-
in addition to normal breaks and mealtimes, and in which she would
be located in close proximity to a bathroom, defined as no greater
than three minutes’ walking distance. T.13.
Plaintiff
contends
that
the
ALJ
improperly
“craft[ed]
a
mathematical algorithm” which was inconsistent with the evidence
regarding the frequency and urgency of her bowel movements, while
the Commissioner defends the ALJ’s RFC as the product of “simple
arithmetic”
based “directly on the number of bowel movements
Plaintiff herself reported at her periodic follow-up visit with
Dr.
Church
in
September
2008—the
only
evidence
of
record
documenting Plaintiff’s ulcerative colitis symptoms during the
relevant period.” Defendant’s Memorandum of Law (“Def.’s Mem.”) at
14. However, Dr. Church’s retrospective opinion and the treatment
notes for the relevant period, illustrate that Plaintiff’s bowel
movements consisted of diarrhea. See T.1340, 292. When he saw
Plaintiff in follow up, Dr. Church noted that she was “constantly”
having diarrhea during this time. See id.
Thus, even if, assuming a best case scenario, Plaintiff had
only five bowel movements a day, they consisted of diarrhea.
See Plaintiff’s Reply (“Pl.’s Reply”) at 4. Diarrhea “denotes not
merely abnormal looseness of stools but also an increase in the
urgency and frequency of defecation” and is defined as “[a]n
abnormally frequent discharge of semi-solid or fluid fecal matter
from the bowel.” Stedman’s, p. 534 (italics in original). Thus,
-17-
they were inherently urgent, frequent, and unpredictable, and the
record does not contain substantial evidence supporting that they
could be accommodated in three bathroom breaks or by waiting for a
scheduled break or mealtime. To the contrary, Plaintiff testified
that she could have four bowel movements after just one meal. As an
example, if she ate breakfast in the morning, Plaintiff potentially
could use up the three “extra” bathroom breaks in the RFC shortly
thereafter. At that point, there was “no guarantee” that she could
wait until her next scheduled break time to get to a bathroom. See
Plaintiff’s Memorandum of Law (“Pl.’s Mem.”) (Docket No. 9-1) at
11. As Dr. Church explained in his opinion, having ulcerative
colitis with a J-pouch meant Plaintiff had the “need to drop
everything and make it to the bathroom” as soon as she felt the
urge to have a bowel movement. And, as Plaintiff points out, the
“three
minutes’
distance”
limitation
would
not
necessarily
accommodate her situation because of other variables, such as the
lavatory being occupied by another employee when Plaintiff needed
to use it.
The only way Plaintiff could control her bowel movements was
to refrain from drinking water or eating food. See T.34, 54. When
she denied herself necessary hydration for extended periods of
time—as
she
did
when
she
was
substitute
teaching—she,
not
surprisingly, became dehydrated. T.34. This practice also resulted
in her suffering from kidney stones. T.35. Notably, Plaintiff had
-18-
a teaching assistant to accommodate the problems she was having as
far as needing to go to the bathroom and take frequent breaks.
T.33. On average, she was taking eight to ten bathroom breaks
during the school day. T.34.
In order to make it through important events, Plaintiff would fast
the night before. T.54. For instance, prior to her disability
hearing, Plaintiff fasted for eighteen hours. Id.
The
record
compellingly
demonstrates
that
Plaintiff’s
ulcerative colitis and status post two-stage J-pouch surgery result
in not only a frequent need to use the bathroom, but also an
unpredictability
and
urgency
in
that
need.
For
instance,
Dr. Church’s opinion describes the primary, and often “disabling,”
symptom of ulcerative colitis as “the urgency and the need to drop
everything and make it to the bathroom to prevent an episode of
incontinence.” T.1340. In addition, Dr. Church observed, Plaintiff
“seems to suffer from a much higher stool frequency than average.”
Id. The Court agrees with Plaintiff that there is a dearth of
evidence to support the ALJ’s structured bathroom-break limitation
in the RFC.
4.
The Sit/Stand Option in the RFC
Plaintiff also challenges the sit/stand option contained in
the RFC, which allowed her to alternate from sitting for 45 minutes
to standing for five minutes.
The Commissioner defends this
limitation as giving Plaintiff “the benefit of the doubt.” Even
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assuming this limitation was made in deference to Plaintiff, it
still needed to be based on substantial evidence. See Wheeler v.
Berryhill, No. 3:16-CV-01916, 2018 WL 1528763, at *9 (M.D. Pa.
Mar.
8,
2018)
(finding
“additional
limitations”
imposed
“in
deference to the claimant” not based on substantial evidence where
ALJ “in essence rejected many of Dr. Falvello’s opinions and having
implicitly rejected much of Dr. Gryczko’s RFC assessment” and
“appear[ed]” to have “based much of her RFC assessment on her own
lay analysis of [the claimant]’s medical records, which is not
permitted”) (citation omitted), report and recommendation adopted,
No. 3:16-CV-1916, 2018 WL 1518572 (M.D. Pa. Mar. 28, 2018). The
Court is unable to find substantial evidence in the record for this
limitation.
When
Plaintiff’s
ulcerative
colitis
symptoms were
active, she suffers from “rectal pressure,” she “feel[s] like [she]
ha[s] a UTI,” she has “to go to the bathroom all the time,” she
“get[s] seepage, abdominal bloating, cramping,” and she “break[s]
out in rashes, hives. . . .” T.48. She has had hives since being
diagnosed with ulcerative colitis and amebiasis due to being
infected with the parasite entamoeba histolytica during Desert
Storm. Id. When asked if the hives had an “impact on . . .
fidgeting
around
as
far
as
sitting,”
Plaintiff
responded
affirmatively, explaining that it was “because [she] feel[s] the
pressure” and it was “better for [her] standing.” Id. She testified
“it’s better to lay down sideways,” and at home, she “always ha[s]
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to be laying down.” T.50. She will “stand up sometimes, . . . sit
a little bit and then [she] need[s] to lay down” “because of the
way the pouch is.” Id.
While “[s]edentary work is the least rigorous of the five
categories of work recognized by SSA regulations,” Schaal v. Apfel,
134 F.3d 496, 501 n. 6 (2d Cir. 1998), “[b]y its very nature
‘sedentary’ work requires a person to sit for long periods of time
even
though
standing
and
walking
are
occasionally
required,”
Carroll v. Sec’y of Health and Human Servs., 705 F.2d 638, 643
(2d Cir. 1983) (citation omitted). The record lacks substantial
evidence to support the proposition that Plaintiff can sit for the
“long periods of time” required in a sedentary occupation. Based on
Plaintiff’s testimony, there is no suggestion that she could sit
for six hours out of an eight-hour day, or even sit for 45 minutes
at a time per the sit/stand option in the RFC. See, e.g., Rice v.
Colvin, No. 1:15-CV-00959 (MAT), 2016 WL 7366977, at *2 (W.D.N.Y.
Dec. 20, 2016) (“The ALJ’s decision does not explain what evidence
supports this particular sit/stand option, and the Court can find
no support for such a specific restriction in the record. The ALJ’s
decision thus once again fails to ‘provide appropriate rationale
with specific references to evidence of record in support of the
assessed limitations.’”) (quoting Cruz v. Astrue, 941 F. Supp.2d
483, 487 (S.D.N.Y. 2013); further citations omitted).
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B.
Point II.B: Substitution of Lay Opinion for Competent
Medical Opinion
Plaintiff argues that the RFC assessment was not supported by
substantial evidence because the ALJ assigned the only medical
opinion in the record “some weight” and effectively rejected it.
Plaintiff contends that this created a clear evidentiary gap. Pl.’s
Mem. at 18 (citing Stein v. Colvin, No. 15-CV-6753-FPG, 2016 WL
7334760, at *4 (W.D.N.Y. Dec. 19, 2016) (“Regardless of whether it
was
proper
for
the
ALJ
to
discount
this
opinion,
the
ALJ’s
rejection of the only medical opinion in the record created an
evidentiary gap in the record requiring remand.”) (collecting
cases)). Where, as here, “the record is bereft of any medical
assessment of residual functional capacity,” courts have “found a
lack of substantial evidence to support a finding that exertional
[or non-exertional] impairments are not disabling, since the ALJ is
not qualified to assess residual functional capacity on the basis
of bare medical findings.” Rodriguez v. Sec’y of Health & Human
Servs., 893 F.2d 401, 403 (1st Cir. 1989) (collecting cases).
“Given Plaintiff’s multiple physical . . . impairments, this is not
a case where the medical evidence shows ‘relatively little physical
impairment’ such that the ALJ ‘can render a common sense judgment
about
functional
capacity.’”
Palascak
v.
Colvin,
No.
1:11-CV-0592(MAT), 2014 WL 1920510, at *9 (W.D.N.Y. May 14, 2014)
(quoting Manso–Pizarro v. Sec’y of Health & Human Servs., 76 F.3d
15, 17 (1st Cir. 1996)); see also, e.g., Stein, 2016 WL 7334760, at
-22-
*4 (“[T]he ALJ could not ‘render a common sense judgment’ as to
Stein’s functional capacity without a medical opinion, because
Stein has several complicated and longstanding mental impairments
including bipolar, anxiety, and depressive disorders, and ADD.”)
(citations omitted). “[B]ecause there is no medical source opinion
to support the ALJ’s residual functional capacity finding, the
Court concludes that it lacks substantial evidentiary support.”
Palascak,
2014
WL
1920510,
at
*10
(citing
House
v.
Astrue,
No. 5:11–CV–915 (GLS), 2013 WL 422058, at *4 (N.D.N.Y. Feb. 1,
2013); other citation omitted)).
C.
Remedy
“Sentence four of Section 405(g) provides district courts with
the authority to affirm, reverse, or modify a decision of the
Commissioner ‘with or without remanding the case for a rehearing.’”
Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting
42 U.S.C. § 405(g)).
calculation
of
The standard for directing a remand for
benefits
is
met
when
the
record
persuasively
demonstrates the claimant’s disability, Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980), and where there is no reason to conclude
that the additional evidence might support the Commissioner’s claim
that the claimant is not disabled, Butts, 388 F.3d at 385–86.
After reviewing the entire record, the Court finds that it
already
has
been
developed
fully
for
the
relevant
period.
Furthermore, as discussed above, the Court finds that the record
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contains persuasive proof of Plaintiff’s disability. Applying the
correct legal standards to all of the relevant evidence, including
Dr.
Church’s
retrospective
opinion,
the
Court
concludes
that
Plaintiff’s ulcerative colitis and J-pouch surgery; the sequelae of
her medical condition; and the ramifications of the surgery she
underwent to address it, are fully disabling. Accordingly, the
Court finds that a remand for further administrative proceedings to
correct the above-discussed errors would serve no purpose, and
remand for the calculation of benefits is warranted.
V.
Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on
the pleadings is granted to the extent that the Commissioner’s
decision is
reversed,
and the
matter
is
remanded
solely
for
calculation and payment of benefits for the closed period at issue.
The Commissioner’s motion for judgment on the pleadings is denied.
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
September 19, 2019
Rochester, New York
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