Schiulaz v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CATHY SCHIULAZ,

Plaintiff,

MEMORANDUM AND ORDER

-against- Case No. 19-CV-3364 (FB)

ANDREW SAUL, Commissioner of

Social Security,

Defendant.

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Appearances:

For the Plaintiff: For the Defendant:

HOWARD D. OLINSKY SEAN P. GREENE

250 South Clinton Street, Suite 210 Assistant United States Attorney

Syracuse, New York 13202 Eastern District of New York

271 Cadman Plaza East

Brooklyn, NY 11201

BLOCK, Senior District Judge:

Cathy Schiulaz appeals the final decision of the Commissioner of Social

Security (“Commissioner”) denying her application for disability insurance benefits

(“DIB”). Both Schiulaz and the Commissioner move for judgment on the pleadings.

For the following reasons, Schiulaz’s motion is granted, the Commissioner’s motion

is denied, and the case is remanded for further proceedings consistent with this

memorandum and order.

I

Schiulaz, who previously worked as an executive assistant, applied for DIB

on July 16, 2015. She alleged disability as of January 23, 2015, based principally

on systemic lupus erythematosus (“lupus”)—an autoimmune disease with a variety

of symptoms, including joint pain and fatigue.

After her application was denied, Schiulaz requested a hearing before an

Administrative Law Judge (“ALJ”). The hearing took place on January 31, 2018.

Schiulaz was represented by counsel and testified. A vocational expert also testified.

On February 15, 208, the ALJ issued a written decision finding Schiulaz not

disabled. Applying the familiar five-step process, the ALJ found (1) that Schiulaz

had not engaged in substantial gainful activity since her alleged onset date, and (2)

that her lupus was a severe impairment. He then found, however, (3) that her disease

did not meet the criteria for a listed impairment, and (4) the she could perform her

past work. The ALJ’s step-four finding was based on the following assessment of

her residual functional capacity (“RFC”):

The claimant has the residual functional capacity to perform sedentary

work … that includes the ability to lift/carry ten pounds occasionally

and five pounds frequently, sit six hours with frequent standing and

stretching and stand/walk two hours, with the ability to sit five minutes

every hour, in an eight-hour workday. The claimant can never climb

ladders or scaffolds, occasionally stoop, kneel, crouch, crawl, and

constantly climb stairs and balance. The claimant can frequently reach

overhead, and in all directions, handle and finger and occasionally push

and pull.

AR 38.

In making his RFC assessment, the ALJ assigned “little weight” to the opinion

of Dr. Peter Rumore, a treating rheumatologist, that Schiulaz could, inter alia, sit no

more than two hours in an eight-hour workday. AR 40. He assigned “some weight”

to the opinion of consulting physician Dr. Syeda Asad that Schiulaz had “no

limitations,” but noted that the medical records showed “some physical limitations.”

AR 40. Finally, the ALJ found Schiulaz’s subjective complaints of pain

“inconsistent” with the record. AR 38.

On April 12, 2019, the Appeals Council denied review. Schiulaz timely

sought judicial review.

II

Schiulaz argues that the ALJ improperly weighed (A) the medical opinion

evidence and (B) her subjective complaints. The Court agrees on both counts.

A. Opinion Evidence

As noted, the ALJ gave “little weight” to Dr. Rumore’s opinion and only

“some weight” to Dr. Asad’s. But the ALJ’s RFC assessment was not consistent

with either opinion; he rejected both Dr. Rumore’s that Schiulaz could sit for no

more than two hours and Dr. Asad’s that she had no limitations.

An ALJ must base his or her RFC assessment on medical opinion evidence.

See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“In the absence of a medical

opinion to support the ALJ’s finding as to Balsamo’s ability to perform sedentary

work, it is well-settled that the ALJ cannot arbitrarily substitute his own judgment

for competent medical opinion.” (citation and internal quotation marks omitted));

Barrie v. Berryhill, 2017 WL 2560013, at *10 (S.D.N.Y. June 12, 2017) (“[T]he

ALJ must obtain the treating physician’s opinion regarding the claimant’s alleged

disability; ‘raw data’ or even complete medical records are insufficient by

themselves to fulfill the ALJ’s duty.” (citation and internal quotation marks

omitted)). That did not happen here. Therefore, remand is required to allow the ALJ

to reassess Schiulaz’s RFC based on medical opinion evidence.

B. Subjective Complaints

“In determining whether [a claimant is] disabled, [the Commissioner must]

consider all [the claimant’s] symptoms, including pain, and the extent to which

[those] symptoms can reasonably be accepted as consistent with the objective

medical evidence and other evidence.” 20 C.F.R. § 404.1529(a). “It is well settled

that a claimant’s subjective evidence of pain is entitled to great weight where . . . it

is supported by objective medical evidence.” Mira v. Astrue, No. 09-CV-2012, 2011

WL 4056050, at *13 (E.D.N.Y. Sept. 2, 2011) (quoting Simmons v. U.S. R.R. Ret.

Bd., 982 F.2d 49, 56 (2d Cir.1992)). If the Commissioner determines that a

claimant’s subjective symptoms are inconsistent with the objective medical

evidence, the Commissioner must explain how the evidence conflicts and how the

Commissioner purported to resolve that conflict. Gough v. Saul, 799 F. App’x 12,

15 (2d Cir. 2020). However, “once a claimant has been found to have a pain-

producing impairment, the Commissioner may not reject the claimant’s statements

about his pain solely because objective medical evidence does not substantiate those

statements.” Henningsen v. Comm’r of Social Sec. Admin., 111 F. Supp. 3d 250,

268 (E.D.N.Y. 2015) (quoting Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330,

349–50 (E.D.N.Y. 2010)). Moreover, the Commissioner may not cherry-pick

evidence from the record which supports the Commissioner’s conclusion while

ignoring or discounting unfavorable evidence inconsistent with the Commissioner’s

conclusion. See Mills v. Berryhill, No. 15-CV-5502, 2017 WL 1155782, at *9

(E.D.N.Y. Mar. 27, 2017).

During its disability analysis, the Commissioner must consider “[f]actors

relevant to [the Claimant’s] symptoms, such as pain,” including

(i) [the claimant’s] daily activities;

(ii) The location, duration, frequency, and intensity of [the

claimant’s] pain or other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any

medication [the claimant] take[s] or ha[s] taken to alleviate [the]

pain or other symptoms;

(v) Treatment, other than medication, [the claimant] receive[s] or

ha[s] received for relief of [the] pain or other symptoms;

(vi) Any measures [the claimant] use[s] or ha[s] used to relieve [the]

pain or other symptoms (e.g., lying flat on [one’s] back, standing

for 15 to 20 minutes every hour, sleeping on a board, etc.); and

(vii) Other factors concerning [the claimant’s] functional limitations

and restrictions due to pain or other symptoms.

Id. § 404.1529(c)(3). As to point (i), “daily activities cannot be considered in

isolation”: the ability to function on a daily basis “does not, in itself, contradict a

claim of disability, ‘as people should not be penalized for enduring the pain of their

disability in order to care for themselves.’” Brown v. Comm’r of Social Sec., No.

06-CV-3174, 2011 WL 1004696, at *5 (E.D.N.Y. Mar. 18, 2011) (quoting Woodford

v. Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y. 2000)).

In Schiulaz’s case, the Commissioner reviewed the evidence to determine that

Schiulaz’s “statements concerning the intensity, persistence, and limiting effects of

[her] symptoms [were] not entirely consistent with the medical evidence and other

evidence in the record,” without adequate explanation. AR 39. According to the

Commissioner, Schiulaz’s statements

are inconsistent because [she] largely has a history of Lupus with

limited treatment with occasional flares that predate the alleged onset

date, during which she was able to perform substantial gainful activity.

Post alleged onset date examinations include minimal findings and

stable symptoms that were non-progressive. Submissions from

[Schiulaz] indicate that with the help of a nurse and her husband,

[Schiulaz] cares for [her] disabled son, who has Duchene Muscular

Dystrophy ([Tr. at 231)]. [Schiulaz] prepares basic meals four days a

week, has no problem with personal care, feeds her pet cats and does

light housekeeping, including some laundry, ri[n]sing dishes[,] and

dusting. [Schiulaz] drives and travels alone. She does light shopping

for personal items and groceries and socializes with friends and family.

AR 39. The Commissioner failed to adequately explain why these symptoms are

inconsistent with the record. The Court addresses each assertion in turn.

First, the Commissioner found that Schiulaz’s pre-onset history of Lupus

indicated minimal treatment with little impact, and that post-onset symptoms were

similar. But the record tells a different story. Prior to Schiulaz’s disability onset

date, the record indicates that Schiulaz showed improvement following an increase

in her Plaquenil dosage and administration of Prednisone, but nonetheless exhibited

elevated levels of antinuclear antibodies, “profound fatigue,”

polyarthralgias/polyarthritis, Raynaud’s phenomenon, and skins lesions (malar rash,

painless oral ulcers, and photosensitive skin eruptions), which had been ongoing for

twelve years. AR 312. Additionally, the same records indicate Schiulaz suffered

from some prolonged morning stiffness as well as chronic mid-low lumbar pain.

Medical evidence indicated that “[t]he pattern of joint symptomatology has been

stable and nonprogressive.” AR 312. In other words, notwithstanding the

improvement Schiulaz showed following the increase in her Plaquenil dosage and

the administration of Prednisone, Schiulaz’s conditions were not getting better, even

if they were not quite getting worse.

The record also contains treatment records from nearly six months after her

disability onset date indicating that Schiulaz’s systemic lupus erythematosus became

“more active,” coupled with generalized arthritis at multiple sites, degeneration of

lumbar disc (which, the record indicates, had nonetheless gotten better without

treatment), and a vitamin D deficiency. AR 326.

Schiulaz testified at the hearing that she stopped working when she began

suffering from poor concentration, “was fatigued all of the time,” and fell asleep at

her desk and while driving to work. AR 52. The Commissioner did not adequately

explain how this testimony conflicts with the record evidence discussed above.

Second, the Commissioner found that Schiulaz, with help from her husband

and nurses, cares for her disabled son afflicted with Duchene Muscular Dystrophy.

Again, the record tells a different story. Schiulaz wrote in her function report that

she “care[s]” for her son when the nurses—who are present for 21 hours a day, 7

days a week—are not present. AR 231, 234. In the same function report, Schiulaz

described the “care” she provides for her son, writing that she “[h]elp[s] nurses with

[her] son when asked,” and “[i]f no nurse [is] on duty,” then she will “sleep in [the]

room with” him and “monitor him.” AR 230. Schiulaz also wrote that prior to the

onset of her disability, she was able to “care for my son at night alone,” while

currently her husband and the nurses provide her son’s care. AR 231. The

Commissioner did not adequately explain how Schiulaz’s limited role caring for her

disabled son conflicts with the record.

Finally, the Commissioner mentioned that Schiulaz was able to manage many

of the activities of daily living. However, that Schiulaz can, for example, bathe

herself, feed her cats, perform some housekeeping, shop for groceries, and socialize

does not necessarily mean that Schiulaz possesses the ability to adequately perform

the duties of employment. In a work environment, an employer will require work

performed to a certain minimum standard and at a schedule dictated by the employer,

whereas in Schiulaz’s daily life, she alone determines when and how she will go

about her personal activities. See Samaru v. Comm’r of Social Sec., No. 18-CV-

6321, 2020 WL 3051576, at *10 (E.D.N.Y. June 8, 2020). The Commissioner did

not adequately explain how Schiulaz’s ability to perform her daily living activities

conflicts with the record.

The Commissioner argues that the ALJ considered all the relevant evidence

and that substantial evidence in the record supports his decision. This argument

misapprehends the error. Substantial evidence may or may not support the decision,

but the Court cannot determine whether that is so unless the ALJ adequately explains

his reasoning. Such an explanation is lacking here.

III

Schiulaz presented strong evidence of disability in her case, and the

Commissioner has not adequately explained why Schiulaz is not disabled. However,

it is possible that the Commissioner could properly have found Schiulaz disabled

with a properly explained decision. Generally, remand for further proceedings is

appropriate unless “there is no apparent basis to conclude that a more complete

record might support the Commissioner’s decision.” Rosa v. Callahan, 168 F.3d 72,

83 (2d Cir. 1999). Accordingly, remand is appropriate. Cf. Zabala v. Astrue, 595

F.3d 402, 410 (2d Cir. 2010) (holding that remand was not required where there was

“no reasonable likelihood” of a different result following remand).

IV

For the foregoing reasons, Schiulaz’s motion is granted, the Commissioner’s

motion is denied, and the case is remanded for further proceedings consistent with

this memorandum and order.

SO ORDERED.

_/S_/_ _F_re_d_e_ri_c _B_lo_c_k_________________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

February 8, 2021