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Pasquale v. Berryhill

United States District Court, E.D. New York

October 31, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          For the Plaintiff: HAROLD SKOVRONSKY

          For the Defendant: BRIDGET M. ROHDE Acting United States Attorney For the Defendant: BRIDGET M. ROHDE Acting United States Attorney


          FREDERIC BLOCK Senior United States District Judge.

         Margurite 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 benefits.


         On June 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, [1] 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.

         The ALJ 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.

         The Appeals Council denied Pasquale's request for review, rendering final the ALJ's decision to deny benefits. Pasquale timely sought judicial review.


         "In 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).

         Here, 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.

         Dr. 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.[2] 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 functional limitations.

         Nonetheless, 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)).

         Second, 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, [3] which, according to Dr. Alastra, prevented her from sitting "more than about 20 to 30 minutes at a time." Id. at 351. Thus, ...

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