Darden v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

W ESTERN DISTRICT OF NEW YORK

ANTOINE B. DARDEN,

Plaintiff,

v.

18-CV-349

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the

undersigned conduct any and all further proceedings in this case, including entry of final

judgment. Dkt. No. 16. Antoine B. Darden (“Plaintiff”), who is represented by counsel,

brings this action pursuant to the Social Security Act (“the Act”) seeking review of the

final decision of the Commissioner of Social Security (“the Commissioner”) denying his

application for Social Security Income (“SSI”) and Disability Insurance Benefits (“DIB”).

This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). 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. Dkt. Nos. 13, 14.

BACKGROUND

On October 20, 2014, Plaintiff protectively filed for SSI and DIB, alleging

that he became disabled on July 31, 2014, due to ulcerative colitis, ileostomy

complications, urological problems, and herniated disc in his neck and back. Tr. at 141-

54, 172.1 Plaintiff’s application was denied at the initial level and he requested review.

Tr. at 70-76.2 On December 15, 2016, Administrative Law Judge David J. Begley (“the

ALJ”) conducted a hearing. Tr. at 36-42. Plaintiff failed to appear. Tr. at 36-42.

Plaintiff’s attorney, who was present, indicated that Plaintiff had not responded in recent

weeks to his office’s attempts to contact him. Tr. at 11, 37. The ALJ proceeded with

the hearing, taking testimony from an impartial vocational expert (“VE”), and issued a

Notice to Show Cause for Failure to Appear to Plaintiff. Tr. at 11. On January 12, 2017,

the ALJ issued a decision, in which he found that Plaintiff was not disabled and

therefore not eligible for benefits. Tr. at 8-22. The Appeals Council denied Plaintiff’s

request for review making the ALJ’s determination the final decision of the

Commissioner. Tr. at 1-6. Plaintiff thereafter commenced this action seeking review of

the Commissioner’s decision. Dkt. No. 1.

LEGAL STANDARD

Disability Determination

An ALJ must follow a five-step process to determine whether an individual

is disabled under the Act. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). At

step one, the ALJ must determine whether the claimant is engaged in substantial gainful

work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,

the ALJ proceeds to step two and determines whether the claimant has an impairment,

1Citations to “Tr. __” refer to the pages of the administrative transcript, which appears at Docket

No. 8.

2Plaintiff previously applied for disability, once in May 2008 (Title II only) and again in June 2013

(Title II and XVI), but his applications were denied. Tr. at 11.

or combination of impairments, that is “severe,” meaning that it imposes significant

restrictions on the claimant’s ability to perform basic work activities. 20 C.F.R. §

404.1520(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, 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”). 20 C.F.R. § 404.1520(d). If the impairment meets or

medically equals a Listings criterion and meets the durational requirement (20 C.F.R.

§ 404.1509), 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 collective impairments.

See 20 C.F.R. § 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the

claimant’s RFC permits him or her to perform the requirements of his or her past

relevant work. 20 C.F.R. § 404.1520(f). If the claimant can perform such requirements,

then he or she is not disabled. If not, the analysis proceeds to the fifth and final step,

wherein the burden shifts to the Commissioner 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.

See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks omitted); see

also 20 C.F.R. § 404.1560(c).

District Court Review

42 U.S.C. § 405(g) authorizes a district court “to enter, upon the pleadings

and transcript of the record, a judgment affirming, modifying, or reversing the decision of

the Commissioner of Social Security, with or without remanding the cause for a

rehearing.” 42 U.S.C. § 405(g) (2007). Section 405(g) limits the scope of the Court’s

review to two inquiries: whether the Commissioner’s conclusions were based upon an

erroneous legal standard, and whether the Commissioner’s findings were supported by

substantial evidence in the record as a whole. See Green-Younger v. Barnhart, 335

F.3d 99, 105-106 (2d Cir. 2003). Substantial evidence is “more than a mere scintilla.”

Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009). “It means such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Id. (emphasis

added and citation omitted). The substantial evidence standard of review is a very

deferential standard, even more so than the “clearly erroneous” standard. Brault v.

Comm’r of Soc. Sec., 683 F.3d 443, 447-48 (2d Cir. 2012) (citing Dickinson v. Zurko,

527 U.S. 150, 153 (1999)).

When determining whether the Commissioner’s findings are supported by

substantial evidence, the Court’s task is “‘to examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be drawn.’”

Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d

1033, 1038 (2d Cir. 1983) (per curiam)). If there is substantial evidence for the ALJ’s

determination, the decision must be upheld, even if there is also substantial evidence

for the Plaintiff’s position. See Perez v. Chater, 77 F.3d 41, 46-47 (2d Cir. 1996); Conlin

ex rel. N.T.C.B. v. Colvin, 111 F. Supp. 3d 376, 384 (W.D.N.Y. 2015). Likewise, where

the evidence is susceptible to more than one rational interpretation, the Commissioner’s

conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.

1982).

DISCUSSION AND ANALYSIS

The ALJ’s Decision

The ALJ analyzed Plaintiff’s claims using the familiar five-step process

described above. Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y.

Aug. 8, 2008) (detailing the five steps). Preliminarily, the ALJ concluded that Plaintiff

had “failed to show good cause for his failure to appear at the hearing.” Tr. at 11. At

step one, the ALJ found that Plaintiff had worked after his alleged onset date, July 31,

2014, but that his work activity did not rise to the level of substantial gainful activity. Tr.

at 14. At step two, he found that Plaintiff had the following severe impairments: chronic

ulcerative colitis (status-post surgeries) and degenerative disc disease of the lumbar

spine. Tr. at 14. At step three, the ALJ concluded that Plaintiff’s impairments did not,

either individually or in combination, meet or equal the Listings, giving specific

consideration to Listings 1.04 (Disorders of the Spine) and 5.00 (Disorders of the

Digestive System). Tr. at 15.

Next, the ALJ found that Plaintiff retained the RFC to perform light

work as defined by 20 C.F.R. 404.1567(b) and 416.967(b), except he could not climb

ladders, ropes or scaffolds; could only occasionally climb ramps and stairs, balance,

stoop, kneel, crouch and crawl; he must avoid hazardous machinery, unprotected

heights, and open flames; and he would need ready access to a bathroom, in general

proximity of work space. Tr. at 15-21. Continuing to the fourth step, the ALJ found that

Plaintiff was able to perform his past relevant work as a Bicycle Assembler and a Retail

Clerk as those jobs were generally performed. Tr. at 21. Accordingly, the ALJ

concluded that Plaintiff had not been under a disability as defined by the Act from July

31, 2014, through the date of his decision January 12, 2017. Tr. at 22.

Judgment on the Pleadings

As noted above, the parties have cross-moved for judgment on the

pleadings. Dkt. Nos. 13, 14. Plaintiff contends that “the RFC fails to incorporate the

frequency in which Plaintiff required additional breaks for bowel movements” and that

“the record shows that Plaintiff had bowel movements that would cause him to be off-

task an impermissible amount of time.” Dkt. No. 13-1, pp. 17-20. The Commissioner

contends that the RFC adequately accounted for Plaintiff’s need to take bathroom

breaks, and that “[t]here is no evidence that Plaintiff required more breaks than the VE

indicated would be tolerated by employers.” Dkt. No. 14-1, pp. 17. Having reviewed the

record, this Court finds that the RFC is impermissibly vague regarding Plaintiff’s need

for bathroom breaks given the severity of his gastrointestinal symptoms, and that this

error warrants remand.3

RFC Assessment

An RFC is defined as “[a] medical assessment of what an individual can

do in a work setting in spite of the functional limitations and environmental restrictions

imposed by all of his or her medically determinable impairment(s) . . . .” SSR 83-10,

1983 WL 31251, at *7 (S.S.A. 1983). “Ordinarily, RFC is the individual’s maximum

remaining ability to do sustained work activities in an ordinary work setting on a regular

and continuing basis, and the RFC assessment must include a discussion of the

individual’s abilities on that basis.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). “A

‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent

work schedule.” Id. “The work functions likely to be limited depend on many factors,

including the particular limitations and symptoms caused by the claimant’s medically

determinable impairments.” Lowe v. Colvin, No. 6:15-CV-06077(MAT), 2016 WL

624922, at *5-7 (W.D.N.Y. Feb. 17, 2016) (considering claimant’s colitis and irritable

bowel syndrome). “As explicitly stated in the regulations, RFC is a medical assessment;

therefore, the ALJ is precluded from making his assessment without some expert

medical testimony or other medical evidence to support his decision.” Gray v. Chater,

903 F. Supp. 293, 301 (N.D.N.Y. 1995) (citing 20 C.F.R. § 404.1513(c) and (d)(3)).

3 Plaintiff advances other arguments but because this Court finds that remand is warranted on

this basis, it need not reach them.

The record establishes that Plaintiff suffers from chronic ulcerative

colitis with symptoms of severe abdominal and rectal pain and blood in his stool. Tr. at

345-56. Several doctors were involved in his treatment and care. In 2013, Plaintiff was

twice treated in the emergency room for his symptoms (Tr. at 345-56, 364), and twice

admitted to the hospital for several days for what his pain specialist, Dr. Eugene Gosy,

described as “severe intractable abdominal pain” resulting from “aggressive ulcerative

colitis.” Tr. at 492-94, 495-96. In 2014, Plaintiff consistently reported having more than

12 bowel movements a day, occasionally up to 15 to 20 times a day, with bloody stool.

Tr. 570, 688, 571-72, 573. Plaintiff visited the emergency room in May 7, 2014, with

fever, bloody stools, and abdominal and rectal pain. Tr. at 372-88. His symptoms

flared once again om July 30, 2014, resulting in another emergency room visit. Tr. at

421. Plaintiff’s weight fluctuated from day to day, sometimes by several pounds over a

matter of days. See Tr. at 345 (230 pounds on June 7, 2013); Tr. at 598 (220 pounds

on January 28, 2014); Tr. at 687 (224 pounds on January 30, 2014); Tr. at 428-29 (218

pounds on June 17, 2014, noting that he had lost three pounds since last visit); Tr. at

600 (212 pounds on May 3, 2014).

After Plaintiff failed to respond to conservative treatment, he underwent

surgery which consisted of a total proctocolectomy, ileoanal J-pouch and diverting loop

ileostomy on August 5, 2014. Tr. at 431, 466, 504, 518-20, 521-26. Following his

surgical discharge, Plaintiff developed sepsis from his abdominal wound, which required

him to be readmitted to the hospital. Tr. at 466. On October 5, 2014, Plaintiff was

treated in the hospital for abdominal pain, fever, and chills. Tr. at 550-59. At that time,

he weighed 200 pounds, his lowest documented weight. Tr. at 550-59. On January 12,

2015, Plaintiff underwent ileostomy closure. Tr. at 622, 637. In March 2015, Plaintiff

reported to his surgeon that he was having 4-6 bowel movements a day. Tr. at 639-40.

Plaintiff was treated for ulcerative colitis symptoms, including anal burning, on April 15,

2015 and April 27, 2015. Tr at 633, 638, 640. Plaintiff underwent a flexible

sigmoidoscopy on May 13, 2015. Tr. at 655.

On May 26, 2015, Plaintiff treated in the emergency room with rectal pain,

blood in his stool, and abdominal pain. Tr. at 651. Plaintiff reported to his surgeon on

September 28, 2015, that he was having 6-10 bowel movements per day, anal burning

and anal pain with bowel movements. Tr. at 671. He was instructed to have Sitz baths

three times a day after bowel movements. Tr. at 671. Plaintiff visited the emergency

room again for worsening rectal and abdominal pain in September 28, 2015, and for

abdominal pain and bloody/tarry stools on October 1, 2015. Tr. at 740-52. On October

6, 2015, Dr. Timothy Adams noted that “since having the reversal of the ileostomy[,] he

has had 12 bowel movements a day and he has suffered with anal pain and discomfort

as well as bright red bleeding.” Tr. at 775. Upon exam, Dr. Adams noted that Plaintiff’s

perianal ski was excoriated and tender to palpation. Tr. at 776.

An October 30, 2015, CT scan revealed that Plaintiff had a ventral hernia

(likely related to the prior ileostomy site) with a loop of small bowel projecting into the

hernia sac. Tr. at 716. Further findings from the CT were consistent with “persistent

inflammation from ulcerative colitis.” Tr. at 716. On November 2, 2015, it was noted

that Plaintiff had undergone a Botox injection at the anal sphincter muscle. Tr. at 696.

At that time, Plaintiff reported having more than 12 bowel movements a day, sometimes

with blood. Tr. at 696. On November 16, 2015, Plaintiff went to the emergency room

with complaints of abdominal pain and nausea. Tr. at 732. He visited the emergency

room again on December 22, 2015, with right lower quadrant abdominal pain over the

site of his incisional hernia. Tr. at 707-10, 773. Plaintiff had severe tenderness over the

hernia defect, and report that he “usually has approximately 15 bowel movements per

day but today only had 9-10.” Tr. at 707, 709.

Plaintiff underwent laparoscopic repair of the hernia on January 22, 2016.

Tr. at 705-06. After treating with several doctors, he was referred to Cleveland Clinic to

get another opinion related to his chronic rectal pain. Tr. at 795. Throughout

September 2016, Plaintiff treated with Dr. Adams for poor appetite, unintentional weight

loss, nausea, vomiting, diarrhea, chronic rectal pain, and chronic rectal bleeding. Tr. at

792-93. Plaintiff reported loose stools with mucus discharge, and upon examination,

had perianal excoriation which was tender to palpation. Tr. at 790. According to the

last record related to Plaintiff’s colitis treatment from September 27, 2016, Dr. Adams

noted that Plaintiff may suffer from Crohn’s disease. Tr. at 790.

The ALJ purported to accommodate Plaintiff’s well-documented

gastrointestinal symptoms in the RFC by stating that Plaintiff “would need ready access

to a bathroom, in general proximity of work space.” Tr. at 15. This Court finds that this

accommodation is impermissibly vague and does not account for the functional

limitations caused by Plaintiff’s ulcerative colitis. As an initial matter, the ALJ failed to

make specific findings regarding the frequency and length of Plaintiff’s anticipated

bathroom breaks. In this regard, the ALJ failed to consider whether Plaintiff’s bathroom

use was compatible with ordinary, acceptable breaks in terms of frequency and duration

or if it would be too frequent to be acceptable, i.e., if it would cause him to be off-task or

away from his workstation too often. Lowe, 2016 WL 624922, at *6. This was error.

Canty v. Colvin, No. 6:14-CV-6713(MAT), 2015 WL 9077651 (W.D.N.Y. Dec. 16, 2015);

see also Spaulding v. Astrue, 702 F. Supp. 2d 983, 985 (N.D. Ill. 2010) (holding that the

ALJ’s failure to sufficiently articulate his findings regarding the frequency and duration of

claimant’s required bathroom breaks precluded meaningful judicial review and required

remand); Compston v. Astrue, 2:10-CV-828, 2011 WL 4360106, at *11 (S.D. Ohio July

18, 2011) (“Dr. Hartwick opined that Plaintiff would need at least five restroom breaks

per day. This number of breaks is more than the usual number of breaks an employer

provides to an employee. The ALJ, however, made no specific findings concerning the

frequency and duration of Plaintiff's bathroom usage.”) (footnotes and citations omitted);

Brueggen v. Barnhart, No. 06-C-0154-C, 2006 WL 5999614, at *7 (W.D. Wisc. Dec. 15,

2006) (remanding the case for the ALJ to “make a specific finding concerning the

frequency and duration of plaintiff’s bathroom usage and determine whether, in light of

those findings, plaintiff is able to work”); Green v. Astrue, No. 3:09-CV-331, 2010 WL

2901765, at *6 (E.D. Tenn. July 2, 2010) (remanding because of “the ALJ’s failure to

specify precisely how [claimant]’s need for frequent restroom breaks impacted her

ability to work”).

Moreover, the ALJ’s conclusion that Plaintiff could perform his past work

as a Bicycle Assembler and Retail Clerk, notwithstanding his frequent need to use the

bathroom for long periods of time, contradicts the VE’s testimony and the record in

general. The VE explicitly testified that a person of claimant’s age, education, work

experience and RFC would NOT be able to maintain his past work if he was off task

more than 20% of the day in addition to his regularly scheduled breaks. Tr. at 40. The

VE explained:

Well, it’s my opinion that employers anticipate about 10% of the work shift

being nonproductive, but they anticipate that to be intermittent. So, about

one to three minutes every half hour a person might be stretching, taking

their eyes off the screen, taking a break, using the restroom, getting

coffee, whatever. And, that’s spread out throughout the day, and

employers realize that that helps people refresh . . . . So the 20%, that’s

excessive, so it’s my opinion that that range from ten to 20% would cause

an erosion of job numbers until there were no jobs left at 20%.

Tr. at 41. The record reflects that there were periods of time when Plaintiff had bowel

movements that would cause him to be off-task an impermissible amount of time. For

example, Plaintiff reported that during different periods both before and after his

surgeries he: was having 12 bowel movements per day (Tr. 688); was going to the

bathroom every hour up to 15-20 times daily (Tr. at 571-72); was having bloody, mucoid

stools at least 10 times a day (Tr. at 426); was having 10 bowel movements per day (Tr.

at 691); was having diarrhea at least 20 times per day (Tr. at 428); was having

persistent diarrhea (Tr. at 430); was going to the bathroom every 2 hours up to 15-20

times per day (Tr. at 573); was having 4-6 bowel movements per day (Tr. at 639, 668,

670); and was having 6-10 bowel movements per day (Tr. at 671).

This frequency and duration of bathroom usage clearly exceeds what an

employer would tolerate, according to the VE’s testimony. Tr. at 41. Moreover, the

ALJ’s provision for “ready” access to the bathroom fails to account for the fact that

Plaintiff required time to treat his symptoms during the day. As previously noted,

Plaintiff was ordered by his doctor to have Sitz baths three times a day after his bowel

movements to alleviate his rectal pain. Tr. at 671, 778. Under the circumstances, I find

that the RFC, which indicates only that Plaintiff would need “ready” access to a

bathroom, is impermissibly vague. This matter is therefore remanded to the

Commissioner to make specific findings concerning the frequency and duration of

plaintiff’s bathroom usage and to determine whether, in light of those findings and the

VE’s testimony, Plaintiff is able to work.

CONCLUSION

For the reasons stated herein, Plaintiff’s motion for judgment on the

pleadings (Dkt. No. 13) is hereby GRANTED insofar as it seeks remand, and the

Commissioner’s motion for judgment on the pleadings (Dkt. No. 14) is DENIED. The

Clerk of the Court is directed to close this case.

SO ORDERED.

DATED: Buffalo, New York

September 18, 2019

s/ H. Kenneth Schroeder, Jr.

H. KENNETH SCHROEDER, JR.

United States Magistrate Judge