United States District Court, E.D. New York
the Plaintiff: HAROLD SKOVRONSKY
the Defendant: BRIDGET M. ROHDE Acting United States Attorney
For the Defendant: BRIDGET M. ROHDE Acting United States
MEMORANDUM AND ORDER
FREDERIC BLOCK Senior United States District Judge.
Pasquale ("Pasquale"), who formerly worked as a
registered nurse, seeks review of the final decision of the
Commissioner of Social Security ("Commissioner")
denying her application for disability benefits under the
Social Security Act. Both parties move for judgment on the
pleadings. For the reasons stated below, the
Commissioner's motion is denied, Pasquale's motion is
granted, and the case is remanded for the calculation of
6, 2013, Pasquale filed an application for Disability
Insurance Benefits. She alleged disability, as of March 27,
2013, due to severe chronic back pain, back injury,
depression, and anxiety. The Social Security Administration
(the "SSA") denied her application, and she had a
hearing before an Administrative Law Judge ("ALJ").
In a decision dated October 31, 2014, the ALJ held that
Pasquale was not disabled. Applying the familiar five-step
evaluation process,  the ALJ determined that: (1) Pasquale had
not engaged in substantial gainful activity from March 27,
2013, through October 31, 2014, the date of the hearing; (2)
her degenerative disc disease of the lumbar spine was a
severe impairment, but her depression and anxiety were not;
and (3) her impairments did not meet or medically equal the
criteria of an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
then determined that Pasquale had the residual functional
capacity ("RFC") to perform sedentary work except
that she needed to stand for 5 minutes per hour while
remaining on task and she was limited to performing simple
and routine tasks. Applying this RFC to the remaining steps,
the ALJ determined that (4) Pasquale was unable to perform
her past relevant work as a registered nurse, but (5) there
were jobs existing in significant numbers in the national
economy that Pasquale could perform, namely order clerk,
bench hand, and addresser.
Appeals Council denied Pasquale's request for review,
rendering final the ALJ's decision to deny benefits.
Pasquale timely sought judicial review.
reviewing a final decision of the Commissioner, a district
court must determine whether the correct legal standards were
applied and whether substantial evidence supports the
decision." Butts v. Barnhart, 388 F.3d 377, 384
(2d Cir. 2004); see also 42 U.S.C. § 405(g).
"[Substantial evidence . . . 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); see also Selian v. Astrue,
708 F.3d 409, 417 (2d Cir. 2013).
the ALJ's RFC determination was not supported by
substantial evidence. Sedentary work generally involves up to
2 hours of walking or standing and up to 6 hours of sitting
in an eight-hour workday. SeeMdntyre v. Colvin, 758
F.3d 146, 152 (2d Cir. 2014); SSR 96-9p, 61 Fed. Reg. 34478,
34480 (July 2, 1996). Substantial evidence does not show that
Pasquale could perform those functions. The ALJ's
conclusion to the contrary was based primarily on his
determination that Pasquale's and her treating
physicians' statements regarding her functional
limitations lacked credibility. However, the ALJ's
credibility determinations were not supported by substantial
evidence, and the record as a whole shows that Pasquale was
not capable of sedentary work. Id.
Alastra, who performed spinal fusion surgery on Pasquale and
continued to treat her at follow-up visits, opined that she
could lift no more than 10 pounds, could stand or walk with
normal breaks for less than 2 hours in an eight-hour work
day, could sit for less than 2 hours in an eight-hour work
day and needed to periodically alternate between sitting and
standing to relieve pain or discomfort. See
ARat390-92. Pasquale described similar limitations.
SeeAR at 37-38, 184-92. The medical records, which
contain extensive documentation of spinal disease and
subjective complaints of severe pain, fully supported these
the ALJ determined that Dr. Alastra's opinion was
entitled to "only partial weight, " on several
grounds, which are all without merit. First, he reasoned that
"the claimant appeared to exhibit an intact gait prior
to surgery, and . . . only improved since her fusion
procedure." Id. at 21. However, the ALJ did not
cite any medical evidence to suggest that having an
"intact gait" was inconsistent with the functional
limitations described by Dr. Alastra. "[T]he ALJ cannot
arbitrarily substitute his own judgment for competent medical
opinion." Balsamo v. Chater, 142 F.3d 75, 81
(2d Cir. 1998). Moreover, the ALJ cherry-picked statements
regarding Pasquale's gait and ignored statements from the
same reports demonstrating the severity of her impairment.
For example, physical examinations by Dr. Stilwell
consistently revealed tenderness and muscle spasms in
Pasquale's lumbar spine and pain that radiated down both
legs. Id. at 271 (treatment notes from May 13,
2013), 274 (from April 8, 2013). An MRI from 2012 showed
degenerative spondylosis with minimal disc bulging but
"significant pathology" that, according to Dr.
Alastra, "likely correlate[d] with her discogenic-like
back pain symptoms . . . ." Id. at 263. By
ignoring the foregoing evidence, the ALJ failed to consider
"all of the relevant medical and other evidence" in
determining the credibility of Dr. Alastra's opinion.
Genier v. Astrue, 606 F.3d 46, 50 (2d Cir. 2010)
(citing 20 C.F.R. § 404.1545(a)(3)).
the evidence directly contradicted the ALJ's finding that
Pasquale's condition "only improved" after
surgery. Examinations continued to reveal tenderness and
muscle spasms in June 2014, several months after surgery.
Id. at 356. In the months following surgery, Dr.
Alastra reported on several occasions that Pasquale was
"backslid[ing]" in her recovery. AR at 351-53. In
June, she continued to experience pain and paresthesias,
which, according to Dr. Alastra, prevented her from sitting
"more than about 20 to 30 minutes at a time."
Id. at 351. Thus, ...