Genoeffa Melchionna v. Commissioner Social Security

• Court: Court of Appeals for the Third Circuit
• Decided: March 17, 2022
• Docket: 21-1860
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-1860 _____________

GENOEFFA M. MELCHIONNA, Appellant

v.

COMMISSIONER SOCIAL SECURITY __________

On Appeal from the United States District Court For the District of New Jersey (D.C. No. 2-19-cv-19692) District Judge: Honorable Kevin McNulty _______________

Submitted Under Third Circuit L.A.R. 34.1(a) March 14, 2022

Before: JORDAN, KRAUSE, and PORTER, Circuit Judges

(Filed: March 17, 2022) _______________

OPINION ∗ _______________

JORDAN, Circuit Judge.

∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. This appeal arises from Genoeffa Melchionna’s application for Social Security

disability insurance benefits. The administrative law judge (“ALJ”) at the Social Security

Administration denied part of her application, determining that, despite Melchionna’s

physical and cognitive impairments, she retained a residual functional capacity (“RFC”)

that would enable her to find work in the national economy. Melchionna appealed the

partial denial to the District Court, arguing that parts of the ALJ’s RFC determination

were not supported by substantial evidence. The District Court affirmed the ALJ’s

decision. For the following reasons, we will vacate and remand.

I. BACKGROUND

Melchionna was a hairdresser and licensed cosmetologist. In April 2011, she was

involved in a minor car accident. As a result of the accident, she began experiencing pain

in her neck and lower back, and numbness in her hands. She was ultimately diagnosed

with cervical and lumbar spine disc herniation with radiculopathy and bilateral carpal

tunnel syndrome, all of which required surgeries. The car accident also caused her to

experience multiple mental impairments, including anxiety, depression, post-traumatic

stress disorder, and a mild cognitive disorder.

Despite undergoing the surgeries and extensive treatment, Melchionna continued

to suffer pain and reduced range of motion in her spine and neck for the next several

years. Melchionna’s medical providers agreed that her continuing pain and physical

limitations made it unlikely that she could return to her prior work as a hairdresser. They

had differing opinions on the full extent of her physical and cognitive limitations.

2 In March 2013, Melchionna filed an application for disability insurance benefits.

The ALJ denied her application, finding that she was not disabled. Although the ALJ

determined that Melchionna’s RFC was limited to performing sedentary work and that it

precluded a return to her prior work as a hairdresser, she concluded that Melchionna

could still perform other jobs in the national economy. After the agency’s Appeals

Council denied Melchionna’s request for review of the ALJ’s findings, Melchionna

appealed to the District Court. The District Court remanded for the ALJ to clarify what

was meant by the limitation on Melchionna’s RFC that she “be given the ability to fidget

about in her seat.” (A.R. at 26, 1559.)

On July 6, 2017, while her application was on appeal, Melchionna fell down a

staircase. That accident exacerbated her existing physical and cognitive ailments. She

filed a second application for disability insurance benefits, which was combined with the

remanded first application for consideration by another ALJ.

On remand, the ALJ found that Melchionna was disabled as of July 6, 2017, but

not before that date. As before, the ALJ found that her RFC before July 2017 was limited

to sedentary work. But this time, instead of saying that Melchionna needed to be able to

“fidget about in her seat,” the ALJ said that she needed to be able to “change positions

while continuing to sit and work for 10 minutes every hour[.]” (A.R. at 1379.) The ALJ

determined that, even though Melchionna’s RFC left her unable to continue her work as a

hairdresser, she still could have performed other jobs in the national economy, including

that of a call-out operator. Melchionna appealed the partial denial to the District Court,

which affirmed the ALJ’s decision. She then filed this timely appeal.

3 II. DISCUSSION 1

An ALJ’s decision must be “accompanied by a clear and satisfactory explication

of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). The

ALJ must consider all evidence presented. Burnett v. Comm’r of Soc. Sec. Admin., 220

F.3d 112, 121 (3d Cir. 2000). “When a conflict in the evidence exists, the ALJ may

choose whom to credit but ‘cannot reject evidence for no reason or for the wrong

reason.’” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason v. Shalala,

994 F.2d 1058, 1066 (3d Cir. 1993)). If there is evidence that contradicts his decision,

the ALJ must “give some indication of the evidence which he rejects and his reason(s) for

discounting such evidence.” Burnett, 220 F.3d at 121. “In the absence of such an

indication, the reviewing court cannot tell if significant probative evidence was not

credited or simply ignored.” Id. (quoting Cotter, 642 F.2d at 705).

The ALJ here, applying 42 U.S.C. § 423(a)(1), had to determine whether

Melchionna was disabled within the meaning of the Social Security Act. A “disability” is

defined as an “inability to engage in any substantial gainful activity by reason of any

1 The District Court had jurisdiction under 42 U.S.C. § 405(g). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. “We review the ALJ’s decision under the same standard of review as the District Court, to determine whether there is substantial evidence on the record to support the ALJ’s decision.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir. 2000). The substantial evidence standard requires “more than a mere scintilla[,]” meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “We review de novo the district court’s determination as to whether the ALJ’s decision was supported by substantial evidence.” Buckwalter v. Acting Comm’r of Soc. Sec., 5 F.4th 1315, 1320 (11th Cir. 2021).

4 medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less

than 12 months[.]” Id. § 423(d)(1)(A). A claimant is disabled only if her impairment is

so severe that she cannot engage in her previous work nor “any other kind of substantial

gainful work which exists in the national economy[.]” Id. § 423(d)(2)(A).

The Social Security Administration’s regulations instruct ALJs to conduct a five-

step process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a).

The only step at issue here is the fifth step, at which the ALJ must determine whether the

claimant can perform any job in the national economy based on her age, education, work

experience, and residual functional capacity. Id. §§ 404.1520(a)(4)(v), 404.1560(c). A

claimant’s RFC is “that which [he or she] is still able to do despite the limitations caused

by his or her impairment(s).” Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)

(citing 20 C.F.R. § 404.1545(a)). The Social Security Administration classifies the type

of work the claimant can do based on physical exertion requirements, ranging

from sedentary work to very heavy work. 20 C.F.R. § 404.1567. In addition to that

general classification, an ALJ’s RFC determination often identifies more specific

limitations to the claimant’s exertional capabilities.

As mentioned, sedentary work is the least physically demanding classification of

work in the national economy. Id. It mostly involves sitting, only occasionally requires

walking and standing, and does not require lifting more than ten pounds. Id.

§ 404.1567(a). “A sedentary job should require no more than approximately 2 hours of

standing or walking per eight-hour work day, and sitting should typically amount to six

5 hours per eight-hour work day.” Mason, 994 F.2d at 1065. A sedentary job does not

necessarily require that a claimant be able to sit for long stretches at a time. SSR 96-9p,

1996 WL 374185 (July 2, 1996) (explaining that “[a]n individual may need to alternate

the required sitting of sedentary work by standing … periodically[,]” such as during

breaks and a lunch period); see also Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)

(“The regulations do not mandate the presumption that all sedentary jobs in the United

States require the worker to sit without moving for six hours, trapped like a seat-belted

passenger in the center seat on a transcontinental flight.”). Still, the time spent during the

workday must allow for approximately six hours of sitting. Boone v. Barnhart, 353 F.3d

203, 210 (3d Cir. 2003) (“[T]he requirement … that Boone’s employment allow her the

option to sit or stand at will every thirty minutes precludes her from performing ‘the

prolonged sitting contemplated in the definition of sedentary work[.]’” (quoting SSR 83-

12, 1983 WL 31253 (Jan. 1, 1983))).

The ALJ here determined that Melchionna was capable of performing sedentary

work prior to July 2017, but with numerous specific caveats. One of those limitations on

her ability to perform sedentary work was that, “when seated,” she needed to be able to

“change positions while continuing to sit and work for 10 minutes every hour[.]” (A.R.

at 1379.) Melchionna has challenged the ALJ’s inclusion of that “change positions”

limitation, among others, as being unsupported by substantial evidence.

We agree that the decisions of the ALJ and the District Court are without record

support at least with respect to the “change positions” limitation. The only evidence that

the ALJ cited in support of that limitation was the report of Dr. Susan Fuls. The ALJ

6 stated: “I also accord strong weight to Dr. Fuls’ opinion … indicating that the claimant

was seemingly capable of being on time and working, but needs to sit[,] stand[,] and

change position every 10 to 15 minutes.” (A.R. at 1392.) But the ALJ then

acknowledged that “there was no real explanation given for the 10 to 15 minute switch of

position.” (A.R. at 1392.) Indeed, there was no explanation because Dr. Fuls never

advanced that proposition. Her report instead stated that “[Melchionna’s] physical (acute

[and] chronic) back pain impair[s] her ability [to] sit for more than 10 min[utes] in a

chair[.]” (A.R. at 999; see also A.R. at 995 (noting that Melchionna was “unable to sit in

chair > 10 min at a time (has to stand + walk around)”).) Thus, Dr. Fuls’s remarks that

Melchionna could only sit for ten minutes contradict, rather than support, the ALJ’s

finding that Melchionna could sit continuously if given the ability to “change positions”

in her seat for ten minutes every hour.

Nor was there any other evidence in the record to support that RFC limitation. In

upholding the ALJ’s “change positions” limitation, the District Court pointed to two

other parts of the record, but neither provides the requisite substantial evidence. It first

cited Melchionna’s testimony from her initial hearing, which the District Court

summarized by saying: “Melchionna herself testified that she could only sit for ten

minutes before needing to ‘fidget’ to get into a comfortable position.” (App. at 8.) But

that is not quite what Melchionna said. Rather, the transcript reads:

Q: And what about sitting, how long can you sit? A: I’m always in pain so 10 minutes that I fidget all the time just trying to get into a comfortable position.

7 (A.R. at 61.) In other words, Melchionna did not say that she could sit for ten minutes,

change positions, and then sit for longer. Her comment is ambiguous but appears to be

that she could sit for a maximum of ten minutes, the whole time trying (unsuccessfully)

to get comfortable. Like the ALJ’s citation to Dr. Fuls’s report, the District Court’s

citation to Melchionna’s testimony appears to contradict, rather than support, the “change

positions” limitation.

The District Court also pointed to a report by psychotherapist John Kramer.

During one of his 45-minute therapy sessions with Melchionna, Mr. Kramer observed

that she “change[d] position in her chair every few minutes due to ‘pain[.]’” (A.R. at

1342.) But a therapist’s observation that Melchionna could sit uncomfortably for three-

quarters of an hour does not adequately support a finding that she could sit continuously

as long as she could change positions in her seat for ten minutes each hour, or that she

could sit for six hours each workday.

Thus, the evidence cited for the disability determination does not constitute the

substantial evidence necessary to support the ALJ’s determination that Melchionna could

perform sedentary work with the limitation of needing to “change positions while

continuing to sit and work for 10 minutes every hour[.]” (A.R. at 1379.) To the contrary,

the ALJ and the District Court appeared to be crediting, rather than rejecting, evidence

that contradicts a key limitation included in the ALJ’s RFC determination. We will

therefore remand so that the ALJ can provide “a clear and satisfactory explication” of the

8 evidence supporting her RFC determination, including what limitations (if any)

Melchionna had on her ability to sit prior to July 2017. Cotter, 642 F.2d at 704. 2

III. CONCLUSION

For the following reasons, we will vacate the District Court’s order and remand

with instructions to return the case to the Commissioner of Social Security for further

proceedings consistent with this opinion.

2 It is not always reversible error for an ALJ to put additional restrictions on a claimant’s RFC in a way that favors the claimant, even if those additional restrictions are not compelled by medical evidence. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361-62 (3d Cir. 2011) (affirming an RFC determination even after the ALJ “added restrictions [that the state’s medical consultant] did not deem necessary”). In this case, however, we cannot conclude that the ALJ made such a claimant-friendly determination. The finding that Melchionna needed to be able to change positions while seated is closely intertwined with – and perhaps necessary for – the finding that she could sit long enough to perform sedentary work. Because the other limitations in the RFC are only applicable to the extent that Melchionna could still perform the least demanding classification of work, we do not now address her challenges to those other limitations.