Harrington v. Commissioner of Social Security
Filing
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ORDER granting in part and denying in part 13 Motion for Judgment on the Pleadings and denying 17 Motion for Judgment on the Pleadings. The decision of the Commissioner is vacated, and the matter is remanded for further administrative proceedings consistent with this decision. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 8/20/2019. (AMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHELLIE A. HARRINGTON,
Plaintiff,
v.
18-CV-249
Decision & Order
ANDREW SAUL, Commissioner of Social
Security,
Defendant.
On February 16, 2018, the plaintiff, Shellie A. Harrington, brought this action
under the Social Security Act ("the Act"). She seeks review of the determination by the
Commissioner of Social Security ("Commissioner") that she was not disabled. Docket
Item 1. On November 16, 2018, Harrington moved for judgment on the pleadings,
Docket Item 13; on January 3, 2019, the Commissioner responded and cross-moved for
judgment on the pleadings, Docket Item 17; and on January 24, 2019, Harrington
replied, Docket Item 18.
For the reasons stated below, this Court grants Harrington’s motion in part and
denies the Commissioner’s cross-motion.
BACKGROUND
I.
PROCEDURAL HISTORY
On January 24, 2014, Harrington applied for Supplemental Security Income
benefits. Docket Item 10 at 41. She claimed that she had been disabled since May 1,
2011, due to arm nerve damage, spinal stenosis, “COPD1,” and arthritis in her neck. Id.
at 210.
On May 7, 2014, Harrington received notice that her application was denied
because she was not disabled under the Act. Id. at 103. She requested a hearing
before an administrative law judge ("ALJ"), id. at 41, which was held on June 22, 2016,
id. The ALJ then issued a decision on August 8, 2016, confirming the finding that
Harrington was not disabled. Id. at 49. Harrington appealed the ALJ’s decision, but her
appeal was denied, and the decision then became final. Id. at 5.
II.
THE ALJ’S DECISION
In denying Harrington’s application, the ALJ evaluated Harrington’s claim under
the Social Security Administration’s five-step evaluation process for disability
determinations. See 20 C.F.R. § 404.1520. At the first step, the ALJ must determine
whether the claimant is currently engaged in substantial gainful employment.
§ 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. If not, the ALJ proceeds to
step two. § 404.1520(a)(4).
At step two, the ALJ decides whether the claimant is suffering from any severe
impairments. § 404.1520(a)(4)(ii). If there are no severe impairments, the claimant is
not disabled. Id. If there are any severe impairments, the ALJ proceeds to step three.
§ 404.1520(a)(4).
At step three, the ALJ determines whether any severe impairment or impairments
meet or equal an impairment listed in the regulations. § 404.1520(a)(4)(iii). If the
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Chronic obstructive pulmonary disease.
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claimant’s severe impairment or impairments meet or equal one listed in the regulations,
the claimant is disabled. Id. But if the ALJ finds that none of the severe impairments
meet or equal any in the regulations, the ALJ proceeds to step four. § 404.1520(a)(4).
As part of step four, the ALJ first determines the claimant’s residual functional
capacity (“RFC”). See §§ 404.1520(a)(4)(iv); 404.1520(d)-(e). The RFC is a holistic
assessment of the claimant—addressing both severe and nonsevere medical
impairments—that evaluates whether the claimant can perform past relevant work or
other work in the national economy. See 20 C.F.R. § 404.1545.
After determining the claimant's RFC, the ALJ completes step four. 20 C.F.R.
§ 404.1520(e). If the claimant can perform past relevant work, he or she is not disabled
and the analysis ends. § 404.1520(f). But if the claimant cannot, the ALJ proceeds to
step five. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f).
In the fifth and final step, the Commissioner must present evidence showing that
the claimant is not disabled because the claimant is physically and mentally capable of
adjusting to an alternative job. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987);
20 C.F.R. § 404.1520(a)(4)(v), (g). More specifically, the Commissioner bears the
burden of proving that the claimant "retains a residual functional capacity to perform
alternative substantial gainful work which exists in the national economy." Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
Here, at step one, the ALJ determined that Harrington had not engaged in
substantial gainful activity since the alleged disability onset date. Docket Item 10 at 43.
At step two, the ALJ found that Harrington suffered from several severe impairments:
obstructive airway disease, degenerative disc disease of the lumbar spine, and
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degenerative disc disease of the cervical spine. Id. At step three, the ALJ determined
that none of Harrington’s impairments, either singly or in combination, met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. At step four, the ALJ found that Harrington had the RFC to
perform less than a full range of light work as defined in 20 C.F.R. §§ 404.1567(b)
and 416.967(b). Specifically, claimant is able to sit for 6 hours out of 8 hours; and
she can stand and walk in combination for 6 hours out of 8 hours. Claimant is able
to lift, carry, push, or pull 10 pounds frequently and up to 20 pounds occasionally.
She should never lift, carry, push, pull, or reach overhead with her bilateral upper
extremities. Claimant should never climb ladders, ropes, or scaffolding; kneel;
crouch; or crawl. She can occasionally climb stairs or ramps and stoop. Claimant
must have an indoor work environment. She should never be exposed to extreme
cold; extreme heat; humidity; wetness; or noxious fumes, odors, dust, airborne
particulate, or pulmonary irritants. She should never be exposed to hazards, which
would include dangerous machinery and unprotected heights.
Id. at 44. The ALJ then found that Harrington was capable of performing her past
relevant work as a deli slicer, so that she was not disabled within the meaning of the
Act. Id. at 49.
STANDARD OF REVIEW
“The scope of review of a disability determination . . . involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [the Commissioner] applied the correct legal principles in making the
determination.” Id. This includes ensuring “that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Social
Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s] whether the
determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at 985
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(quoting 42 U.S.C. § 405(g)). “Substantial evidence” means “more than a mere scintilla.
It means 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
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Where there is a
reasonable basis for doubt whether the ALJ applied correct legal principles, application
of the substantial evidence standard to uphold a finding of no disability creates an
unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to correct legal principles.” Johnson, 817 F.2d at 986.
DISCUSSION
I.
ALLEGATIONS
Harrington objects to the ALJ’s RFC determination. Docket Item 13-1 at 9. She
specifically argues that the ALJ erred by rejecting the only two medical opinions in the
record regarding her physical limitations while nonetheless assessing “a variety of
limitations based on the entirety of the record.” Id. According to Harrington, the ALJ
erred by coming “to a residual functional capacity with highly specific limitations without
reliance on a medical opinion.” Id. at 11. For the reasons that follow, this Court agrees.
II.
ANALYSIS
An ALJ must “conduct a distinct analysis that would permit adequate review on
appeal,” Aung Winn v. Colvin, 541 Fed. Appx. 67, 70 (2d Cir. 2013), and each of the
ALJ’s conclusions must be supported by relevant medical evidence, see Talavera, 697
F.3d at 151. “[T]he ALJ cannot arbitrarily substitute his own judgment for competent
medical opinion.” McBrayer v. Sec'y. of Health and Human Servs., 712 F.2d 795, 799
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(2d Cir. 1983); see also Fuller v. Astrue, 2010 WL 3516935, at *5 (W.D.N.Y. Sep. 7,
2010) (“[A]n ALJ is not free to substitute his own lay opinion for opinions from treating
sources.”). When an ALJ does “not connect the record evidence and RFC findings” or
otherwise “explain how the record evidence supported his RFC findings,” the decision
leaves the court “with many unanswered questions and does not afford an adequate
basis for meaningful judicial review.” Gorny v. Comm'r of Soc, Sec., 2018 WL 5489573,
at *4 (W.D.N.Y. Oct. 29, 2018).
A very specific RFC assessment—such as specific limited time that a claimant
can spend on certain activities—must be based on evidence in the record, not on “the
ALJ’s own surmise.” Cosnyka v. Colvin, 576 Fed.App'x. 43, 46 (2d Cir. 2014) (summary
order); see also Mariani v. Colvin, 576 Fed. Appx. 8, 10 (2d Cir. 2014) (summary order)
(holding that RFC to perform manipulation/fingering 50% of the time during a work day
was not supported by substantial evidence). So when the record provides no support
for how long a claimant can sit or stand without relief, a specific finding toward that end
is not supported by substantial evidence. See, e.g., Tomicki v. Berryhill, 2018 WL
703118, at *5 (W.D.N.Y. Jan. 11, 2018) (“[T]he record does not support the ALJ’s
conclusion that she needs to briefly switch between sitting and standing only every thirty
minutes. . . . Moreover, there is evidence in the record indicating that Tomicki needs to
change positions every few minutes, not every thirty minutes.”). Without “some
explanation” from the ALJ “as to the tether between her RFC and the non-stale medical
opinions or statements from plaintiff, the RFC [is] based upon her lay analysis of
plaintiff’s limitations, which is not permitted and requires remand.” Jordan v. Berryhill,
2018 WL 5993366, at *3 (W.D.N.Y. Nov. 15, 2018).
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Here, the ALJ’s specific finding that Harrington “is able to sit for 6 hours out of 8
hours” and “stand and walk in combination for 6 hours out of 8 hours” is not supported
by substantial evidence. Docket Item 10 at 44. In fact, no evidence in the record even
suggests any such time limit on sitting or standing and walking. See generally Docket
Item 10.
In an effort to suggest otherwise, the Commissioner argues that the ALJ’s RFC
finding was “based on the record as a whole” and not “based simply on the medical
opinion evidence alone.” Docket Item 17-1 at 16. But that argument misses the mark.
If an ALJ includes a “highly-specific” limitation in the claimant’s RFC, that limitation
cannot come from whole cloth. Tomicki, 2018 WL 703118, at *4. In other words, the
ALJ cannot arrive at specific limitations that do not appear anywhere in the medical
record. See McBrayer, 712 F.2d at 799 (“[T]he ALJ cannot arbitrarily substitute his own
judgment for competent medical opinion.”). Here, “[t]he ALJ did not cite any evidence to
support this highly-specific sit-stand option, nor did the Commissioner identify any such
evidence in [his] motion papers, making it unclear to the Court how the ALJ arrived at
this particular finding.” Tomicki, 2018 WL 703118, at *4.
The Commissioner is correct that the ALJ’s decision to assign little weight to the
opinion of Abrar Siddiqui, M.D., about Harrington’s exertional limitations cut in her favor.
See Docket Item 17-1 at 17; Docket Item 10 at 48. Indeed, Dr. Abrar Siddiqui opined
that the claimant had fewer exertional limitations than the ALJ ultimately found. But that
does not change the fact that no record evidence supports the very specific limitation
the ALJ found: that Harrington could spend only six hours of each eight-hour work day
sitting or standing and walking. Because that time limitation appears to be the ALJ’s
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own invention, it requires remand. See, e.g., Vongsouvanh v. Comm'r of Soc. Sec.,
2015 WL 926200, at *10 (N.D.N.Y. Mar. 3, 2015) (omission of any conclusion from
consulting examiner regarding prolonged sitting could not have been reasonably
construed by ALJ as a conclusion that plaintiff could sit for six hours in an eight-hour
day); Tricic v. Astrue, No. 6:07-CV-997 (NAM), 2010 WL 3338697, at *3-4 (N.D.N.Y.
Aug. 24, 2010) (ALJ's determination that plaintiff could stand/walk and sit for about six
hours in an eight-hour workday was not supported by substantial evidence when two
treating doctors opined that plaintiff should avoid prolonged sitting and/or standing, and
no examining doctor provided a specific opinion about plaintiff's ability to sit or stand for
particular periods of time).
It is possible that the ALJ surmised that no more than six of eight hours sitting or
standing and walking would reflect the limitations in an RFC for only light work. Indeed,
a job in the “light work” category might mean “a good deal of walking or standing,” or
“sitting most of the time with some pushing and pulling of arm or leg controls.” 20
C.F.R. § 404.1567(b) (emphasis added). But even if the specific limitation that the ALJ
included in Harrington’s RFC was meant to reflect the requirements of light work, its
specificity still is the product of her “own surmise” and not supported by substantial
evidence.
At best, the ALJ’s conclusion comes from whole cloth. Even worse, however,
there is evidence in the record that actually contradicts the ALJ’s determination that
Harrington could spend six of eight hours sitting or standing and walking. At her
hearing, Harrington testified that she frequently needed to sit. See Docket Item 10 at 68
(“Every time I do the dishes, I have to go sit down for at least 20 minutes.”); 70 (“Q:
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Okay. How long would you can[sic] sit in a chair like the one you’re sitting in here today
without a problem? . . . A: It’s been about – I’ve been here for about 15 minutes in this
chair and it hurts. Q: So at what point then would you need to stand? . . . would [this] be
usual for you, this 20-30 minute timeframe? A: Yes.”).
If Harrington can, in fact, sit for six hours, or stand and walk in combination for six
hours, in an eight-hour work day, those determinations must come from medical
evidence or opinions in the record, not the ALJ’s “own surmise.” Cosnyka, 576 F.
App'x. at 46. Therefore, the case is remanded so that the ALJ can reconsider these
specific limits in her RFC determination or develop the record by recontacting
Harrington’s physicians to obtain evidence supporting such specific limitations.
CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings, Docket Item 17, is DENIED, and Harrington’s motion for judgment on the
pleadings, Docket Item 13, is GRANTED in part and DENIED in part. The decision of
the Commissioner is VACATED, and the matter is REMANDED for further
administrative proceedings consistent with this decision.
SO ORDERED.
Dated:
August 20, 2019
Buffalo, New York
s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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