Opinion
1:21-CV-00023 EAW
2022-11-30
KELLY S., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Elizabeth Ann Haungs, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Jessamyn Lynette Hanna, Oona Marie Peterson, Office of Program Litigation, Office 2 Office of General Counsel Social Security Administration, Baltimore, MD, for Defendant.
Elizabeth Ann Haungs, Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff. Jessamyn Lynette Hanna, Oona Marie Peterson, Office of Program Litigation, Office 2 Office of General Counsel Social Security Administration, Baltimore, MD, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
Represented by counsel, Plaintiff Kelly S. ("Plaintiff") brings this action pursuant to Title XVI 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 supplemental security income ("SSI"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 9; Dkt. 11), and Plaintiff's reply (Dkt. 12). For the reasons discussed below, Plaintiff's motion (Dkt. 9) is granted in part, and the Commissioner's motion (Dkt. 11) is denied.
BACKGROUND
Plaintiff protectively filed her application for SSI on January 9, 2018. (Dkt. 7 at 16, 74). In her application, Plaintiff alleged disability beginning on February 20, 2002, due to Crohn's disease, overactive bladder, endometriosis, ovarian cysts, and knee pain from a torn meniscus. (Id. at 16, 62-63). Plaintiff's application was initially denied on April 18, 2018. (Id. at 16, 75-80). At Plaintiff's request, a hearing was held before administrative law judge ("ALJ") Jason Mastrangelo in Buffalo, New York, on February 27, 2020. (Id. at 16, 35-61). On March 25, 2020, the ALJ issued an unfavorable decision. (Id. at 13-28). Plaintiff requested Appeals Council review; her request was denied on November 13, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 5-7). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper right-hand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 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." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he 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)).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York, 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 416.920(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. § 416.920(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. § 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 416.909), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. § 416.920(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. § 416.920(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. § 416.920(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. § 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since January 9, 2018, the application date. (Dkt. 7 at 18).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "Crohn's/inflammatory bowel disease, osteoarthritis of the bilateral knees, and an overactive bladder." (Id.). The ALJ further found that Plaintiff's medically determinable impairments of ovarian cysts, endometriosis, history of kidney stones/nephrolithiasis, and hip joint space narrowing with subchondral acetabulum sclerosis, were non-severe. (Id. at 19).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id.). The ALJ particularly considered the criteria of Listings 1.02, 5.06, and 5.07 in reaching his conclusion. (Id. at 19-20).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 416.967(b), with the additional limitations that Plaintiff:
can sit for six hours in an eight-hour workday and stand and/or walk for six hours in an eight-hour workday. She can also frequently kneel, crouch, and crawl.(Id. at 20). At step four, the ALJ found that Plaintiff had no past relevant work. (Id. at 26).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of cleaner and cafeteria attendant. (Id. at 27). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 27-28).
II. Remand of this Matter for Further Proceedings is Necessary
Plaintiff asks the Court to reverse or, in the alternative, to remand this matter to the Commissioner, arguing that the ALJ failed to properly evaluate Plaintiff's well-supported subjective complaints regarding her need for unscheduled restroom breaks. (Dkt. 9-1 at 7-10). In response, the Commissioner argues that Plaintiff overlooks the more frequent reports in the record of less frequent stools, denials of acute Crohn's-related symptoms, and reports that Plaintiff was stable, and that it is the ALJ's duty to resolve conflicting evidence in the record. (See Dkt. 11-1). For the reasons explained below, the Court finds that remand for further administrative proceedings is required.
The Court first notes that the ALJ, who has the "opportunity to observe witnesses' demeanor, candor, fairness, intelligence and manner of testifying," is "best-positioned to make accurate credibility determinations." Whiting v. Astrue, No. CIV.A. 1:12-274, 2013 WL 427171, at *6 (N.D.N.Y. Jan. 15, 2013), adopted, 2013 WL 427166 (N.D.N.Y. Feb. 4, 2013). As such, "credibility findings of an ALJ are entitled to great deference and therefore can be reversed only if they are patently unreasonable." Perez v. Barnhart, 440 F. Supp. 2d 229, 235 (W.D.N.Y. 2006) (quotation omitted). In assessing the credibility of a claimant's subjective complaints, the Commissioner's regulations require ALJs to employ a two-step inquiry. Meadors v. Astrue, 370 F. App'x 179, 183 (2d Cir. 2010). "First, the ALJ must determine whether the claimant suffers from a 'medically determinable impairment[ ] that could reasonably be expected to produce' " her symptoms. Id. (quoting 20 C.F.R. § 404.1529(c)(1)). "Second, the ALJ must evaluate the intensity and persistence of those symptoms considering all of the available evidence; and, to the extent that the claimant's [subjective] contentions are not substantiated by the objective medical evidence, the ALJ must engage in a credibility inquiry." Id.
Here, the ALJ discussed Plaintiff's Crohn's disease, and the limitations posed by that diagnosis, at length in the written determination. For example, the ALJ discussed Plaintiff's testimony regarding her Crohn's-related limitations, including: she has difficulty traveling long distances due to the need to use the bathroom; she had about four feet of her large intestine removed; she has to use the bathroom five-to-six times in an eight-hour day, and must use the bathroom right after eating; and she could be in the bathroom for about a half hour. (Dkt. 7 at 21). Plaintiff sometimes has pain when she is experiencing a "flare" of her Crohn's disease, and these flares last for about two weeks. (Id.). She also experiences nausea related to her Crohn's disease, and testified that she could not perform a job that did not accommodate her need to frequently use the bathroom. (Id.). In addition, the ALJ discussed Plaintiff's diagnosis and surgical history as it relates to her Crohn's disease. (See id. at 23 (discussing diagnosis of Crohn's/inflammatory bowel disease of the small and large intestine without complication, February 2002 emergency surgery, postoperative development of retroperitoneal abscess/enterocutaneous fistula, and October 2005 takedown of the enterocutaneous fistula, followed by December 2005 flexible sigmoidoscopy with loop ileostomy closure)).
In the written determination, the ALJ states that Plaintiff "asserted that she got no relief from her surgeries, and has to go to the bathroom a lot more." (See Dkt. 7 at 21). However, that is not an accurate recitation of Plaintiff's testimony from the administrative hearing. Rather, Plaintiff answered "yes" to the ALJ's question of "did you obtain any relief from these surgeries? Did they help with any of your symptoms at all?" (See id. at 44-45). The ALJ then asked Plaintiff if she was "left with ongoing problems," to which Plaintiff responded that, due to the removal of a large part of her intestine, she uses the bathroom more frequently than the normal person. (Id. at 45).
Despite this evidence in the record, the ALJ explained that he found that Plaintiff's subjective complaints of her limitations caused by her Crohn's disease were not consistent with the evidence as a whole. (See id. at 21 ("As for the claimant's statements about the intensity, persistence, and limiting effects of . . . her symptoms, the severity of impairments and degree of limitations alleged are not consistent with the evidence as a whole.")). Specifically, the ALJ noted that Plaintiff's weight has been stable, and that examinations of her abdomen have been largely normal. (Id.). Other diagnostic procedures, such as colonoscopies, an abdominal KUB, upper GI and small bowel series, CT scan, and abdominal ultrasounds revealed largely normal findings. (Id. at 23-24). The ALJ further noted that Plaintiff has not required additional surgical intervention for her Crohn's disease since 2005, she receives conservative care in the form of medications, and she typically sees her gastroenterologist only about one time per year. (Id. at 24). Finally, the evidence demonstrates that Plaintiff has not had frequent or recent flare-ups, and her symptoms have been well-controlled on medications. (Id.). The ALJ noted that most recently, in November 2019, it was reported that "overall [Plaintiff] was doing well and seemed to be fairly stable, that with a somewhat short bowel syndrome she required treatment to maintain a bowel pattern of four to six soft stools a day, and that she has no detectable recurrent disease . . . and on December 11, 2019 that her Crohn's is currently in remission." (Id.).
Plaintiff does not appear to dispute that her Crohn's disease is largely stable, and the Court agrees that the record before it supports that her condition is, at least at this juncture, well-controlled. Rather, the crux of Plaintiff's argument is, even when her Crohn's disease is stable and well-controlled, that due to the length of her intestine—from which she had four feet removed—she still must use the bathroom more than the typical person, and the ALJ failed to adequately discuss and address the limitations caused by that fact in the written determination. (See, e.g., Dkt. 9-1 at 10 ("Dr. St. Marie explained that four to six bowel movements was Plaintiff's baseline—and that was with treatment. So while Plaintiff may have had minimal flares in the relevant period, the ALJ still needed to evaluate Plaintiff's need for unscheduled bathroom breaks due to her baseline symptoms resulting from her multiple surgeries. His failure to do so warrants remand."); see also Dkt. 7 at 45 ("they removed over four feet of my large intestine so I only have about eight inches of colon left, so I have to go to the bathroom even when I'm not having a flare up a lot more than a normal person. So I need to be near a [toilet]."); id. at 49 (Plaintiff's testimony that she has had four feet of her large intestine removed, whereas a person typically has five feet of large intestine)).
In response to this argument, the Commissioner contends that "while the RFC finding does not mention bathroom breaks, this should not be read as precluding bathroom breaks," noting that "[t]o the contrary, full-time work customarily allows for a morning break, a lunch period, and an afternoon break at approximately two-hour intervals," and that the ALJ "by not including any extra break time in the RFC . . . implicitly found that Plaintiff's need for bathroom breaks could be accommodated by these customary breaks." (Dkt. 11-1 at 18-19). The Commissioner further argues that the ALJ was not required to provide specific findings concerning Plaintiff's limitations in this respect, because "all that is required is that the ALJ's discussion of the evidence allow for meaningful review." (Id. at 19).
The Court has reviewed the written determination and concludes that, as it pertains to Plaintiff's need for bathroom breaks, the lack of discussion on this subject by the ALJ precludes meaningful review by this Court. While the Court is able to deduce how the ALJ arrived at the conclusion that Plaintiff's Crohn's disease is stable—including for all the reasons he recited above—it is not clear how the ALJ arrived at the conclusion that Plaintiff does not require more bathroom breaks than the normal person, particularly in light of Plaintiff's direct testimony on this point, and more recent medical records, which document that due to Plaintiff's short bowl syndrome, she requires treatment to maintain a bowel pattern of four to six soft stools a day. (See, e.g., Dkt. 7 at 52 (Plaintiff's testimony that she would use the restroom five to six times in an eight-hour period, even when she is not experiencing a flare); id. at 625 (November 21, 2019 assessment by Mark St. Marie, M.D., noting that Plaintiff's "disease seems to be fairly stable but she has been left with somewhat of a short bowel syndrome that requires treatment to maintain a bowel pattern of 4-6 soft stools a day."); see also id. at 635-38 (opinion by ANP Linda Fuller and Dr. Richard T. Milazou that during a flare, Plaintiff "must make frequent urgent trips to the restroom")).
With regard to the frequency at which she uses the bathroom, Plaintiff also testified that while she drives locally, she does not drive longer distances, and during long car trips she brings a bucket, plastic bags, and toilet paper in case she needs to go to the bathroom in the backseat while someone else is driving. (Dkt. 7 at 42). Plaintiff further testified that she has not been on a plane since 2003, because she cannot tolerate not knowing if people are going to be in a bathroom when she needs to use it. (Id. at 49).
The Commissioner argues that Plaintiff's argument ignores evidence that she requires less frequent bathroom breaks, referencing other reports that Plaintiff typically has two-to-four stools per day. (See, e.g., Dkt. 11-1 at 10). However, if the ALJ's reasoning for not including an accommodation for more frequent bathroom breaks in the RFC is based on Plaintiff's reports that at times she had two-to-four stools per day, because he found that evidence better supported by the record, that is not apparent from the written determination. Rather, the written determination simply states that "[p]rior to November 2019 when she reported having four to six soft stools a day, the claimant was typically report[ing] anywhere from two to four soft stools a day." (Dkt. 7 at 23). The written determination includes no further explanation as to why the ALJ did not afford Plaintiff additional bathroom breaks in the RFC to accommodate her increased need to use the bathroom, such as a finding that Plaintiff's testimony that she has five-to-six stools during an eight-hour period was not credible or not supported by other evidence in the record. Without further explanation, the Court is left with the impression that the ALJ simply determined, without consideration of the evidence in the record or further explanation, that the typical two breaks and a lunch period would suffice to accommodate Plaintiff's condition. See Tina M. v. Comm'r of Soc. Sec., No. 19-CV-1481-LJV, 2021 WL 1298492, at *6 (W.D.N.Y. Apr. 7, 2021) (remand required where the ALJ determined that the plaintiff "would need ready and easy access to a bathroom," but "failed to make specific findings as to the frequency or duration of [the plaintiff's] bathroom use," including by "address[ing] whether her bathroom breaks would fit into the standard breaks in a workday or whether the frequency with which she would need to use the restroom would require that she use the restroom more than that," and ALJ's failure to do so "left [the court] to speculate as to how the ALJ reached such a determination"); cf. James v. Comm'r of Soc. Sec., No. 18-CV-0936-MJR, 2020 WL 772743, at *3-4 (W.D.N.Y. Feb. 18, 2020) (finding sufficient ALJ's rejection of plaintiff's testimony that she required up to ten bathroom breaks per day, where ALJ explained that "[t]he claimant's testimony of disabling symptoms and limitations, including bathroom needs, was not entirely consistent with the evidentiary record," including because the plaintiff "offered conflicting reports of how often she uses the bathroom," the ALJ specifically addressed the frequency and duration of bathroom breaks in formulating the RFC, and also included "ready access" to restroom facilities in the RFC).
In support of their position that remand is not required, the Commissioner cites Bowen v. Comm'r of Soc. Sec., No. 1:19-CV-00420 EAW, 2020 WL 2839318 (W.D.N.Y. June 1, 2020). Bowen is distinguishable. In that case, the undersigned rejected the plaintiff's argument that the ALJ failed to provide an explanation as to why he would not need unscheduled bathroom breaks due to his non-severe impairment of irritable bowel syndrome. Id. at *3-4. In Bowen it was "clear from the written determination" why the ALJ did not incorporate additional bathroom breaks as a limitation in the RFC. Id. at *3. For example, the ALJ noted conflicting statements by plaintiff in the record relating to his ability to control his bowel. Id. at *4. Further, no medical examiners opined that the plaintiff was unable to control his bowel, or assessed any work-related limitations. Id. The plaintiff's contention that he required unscheduled bathroom breaks in the RFC was based solely on his own testimony, and was not supported by other evidence in the record. However, as explained above, here, there is evidence in the record supporting Plaintiff's testimony that she uses the bathroom on five to six occasions during an eight-hour period, and it is unclear from the written determination why the ALJ apparently discredited this testimony. Specifically, as explained above, in November 2019—only three months before the administrative hearing—Dr. St. Marie, who specializes in gastroenterology—found that although stable, Plaintiff's condition due to her short bowl "requires treatment to maintain a bowel pattern of 4-6 soft stools a day." (Dkt. 7 at 625). Soon after, Plaintiff gave testimony consistent with Dr. St. Marie's notes at her administrative hearing. (Id. at 52 (when she is not having a flare, Plaintiff uses the restroom "five or six times" in an eight-hour workday)). Given this evidence in the record, the Court finds that, in order to meaningfully review the RFC in this matter, including Plaintiff's contention that she requires access to a bathroom more frequently than the normal person, the ALJ must directly address this evidence, including by explaining why he found it unpersuasive.
Given the vocational expert's testimony that more than ten percent of time spent off-task per day would preclude work (see Dkt. 7 at 58), Plaintiff's need for additional bathroom breaks is an important consideration. Accordingly, remand is required. On remand, the ALJ shall include in the written determination a discussion of his findings pertaining to Plaintiff's increased need to access the restroom during an eight-hour workday, including whether he finds Plaintiff's testimony about her need to use the bathroom, as well as the medical evidence from Plaintiff's providers noting an increased need to use the bathroom, supported by the record.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 9) is granted to the extent that the matter is remanded for further administrative proceedings, and the Commissioner's motion for judgment on the pleadings (Dkt. 11) is denied.
SO ORDERED.