Shane Rutherford v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration

2022 DNH 062

• Court: District Court, D. New Hampshire
• Decided: May 9, 2022
• Docket: 21-cv-805-SE
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Shane Rutherford

v. Civil No. 21-cv-805-SE Opinion No. 2022 DNH 062 Kilolo Kijakazi, Acting Commissioner, Social Security Administration

O R D E R

Shane Rutherford challenges the denial of his application

for disability insurance benefits and supplemental security

income pursuant to 42 U.S.C. § 405(g). Rutherford moves to

reverse the Acting Commissioner’s decision, arguing that the

Administrative Law Judge (“ALJ”) erred in determining his

residual functional capacity. The Acting Commissioner moves to

affirm. For the reasons discussed below, the court grants

Rutherford’s motion to reverse and denies the Acting

Commissioner’s motion to affirm.

STANDARD OF REVIEW

For purposes of review under § 405(g), the court “is

limited to determining whether the ALJ deployed the proper legal

standards and found facts upon the proper quantum of evidence.”

Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord

Sacilowski v. Saul, 959 F.3d 431, 437 (1st Cir. 2020). The court defers to the ALJ’s factual findings if they are supported by

substantial evidence. Biestek v. Berryhill, 139 S. Ct. 1148,

1153 (2019). Substantial evidence is “more than a mere

scintilla,” id., and exists, even if the record could support a

different conclusion, when “a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate

to support [the ALJ’s] conclusion,” Irlanda Ortiz v. Sec’y of

Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991); accord

Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis, “such that the answer

at each step determines whether progression to the next is

warranted.” Sacilowski, 959 F.3d at 433; 20 C.F.R. §§

404.1520(a)(4), 416.920(a)(4).1 The claimant “has the burden of

production and proof at the first four steps of the process.”

Sacilowski, 959 F.3d at 433. At the first three steps, the

claimant must prove that (1) he is not engaged in substantial

gainful activity; (2) he has a severe impairment; and (3) the

1 Because the pertinent regulations governing disability insurance benefits at 20 C.F.R. Part 404 are the same as the pertinent regulations governing supplemental security income at 20 C.F.R. Part 416, the court will cite only Part 404 regulations. See Reagan v. Sec'y of Health & Human Servs., 877 F.2d 123, 124 (1st Cir. 1989).

2 impairment meets or equals a listed impairment. 20 C.F.R. §

404.1520(a)(4)(i)-(iii).

If the claimant meets his burden at the first two steps of

the sequential analysis, but not at the third, the ALJ assesses

the claimant’s residual functional capacity (“RFC”) before

proceeding to Step Four. Id. § 404.1520(e). RFC measures the

maximum amount a person can do in a work setting despite the

limitations caused by his impairments. Id. § 404.1545(a)(1). At

Step Four, the claimant must establish that his RFC is

insufficient to perform any of his past relevant work. Id. §

404.1520(a)(4)(iv). If the claimant can perform his past

relevant work, the ALJ will find that the claimant is not

disabled. See id. § 404.1520(a)(4)(iv). If the claimant cannot

perform his past relevant work, the ALJ proceeds to Step Five,

in which the Social Security Administration has the burden of

showing that jobs exist in the economy which the claimant can do

in light of the RFC assessment as well as the claimant’s age,

education, and work experience. See id. § 404.1520(a)(4)(v). If

such jobs exist, the claimant is not disabled. Id. If they do

not, he is disabled. Id.

3 BACKGROUND

A detailed factual background can be found in Rutherford’s

statement of facts (doc. no. 4-2) as supplemented by the Acting

Commissioner’s statement of facts (doc. no. 6) and in the

administrative record (doc. no. 3). The court provides a brief

summary of the case here.

I. Factual Background

After battling stomach issues in early 2019, Rutherford’s

doctor diagnosed him with irritable bowel syndrome in March. In

August of the same year, Rutherford’s doctor changed his

diagnosis to Crohn’s disease. In late-2019, his doctor

prescribed Stelara, which was administered by an injection every

eight weeks, to treat his symptoms.2

The severity of Rutherford’s symptoms varied significantly

throughout 2019 and 2020. At different points, he complained of

severe abdominal pain which could last for hours at a time. The

frequency of his bowel movements fluctuated greatly, from as few

as four per day to as many as 12-14 per day or more, often

2 At the hearing before the ALJ, Rutherford testified that his doctor had recently reduced the time between his Stelara injections from every eight weeks to every four weeks to help with his symptoms. Admin. Rec. at 50.

4 coming with little warning. According to Rutherford’s treatment

notes, his symptoms improved immediately after he received a

Stelara injection, but gradually worsened until his next dose.3

II. Procedural Background

On August 17, 2019, Rutherford filed an application for

disability insurance benefits. Shortly thereafter, on August 29,

2019, he filed an application for supplemental security income.

In both applications, Rutherford alleged a disability onset date

of March 15, 2019, when he was 40 years old, due to Crohn’s

disease and anxiety.

The Social Security Administration denied Rutherford’s

applications at the initial level and again after a request for

reconsideration. Rutherford then requested a hearing in front of

an ALJ. On February 25, 2021, the ALJ held a telephonic hearing,

during which Rutherford testified and was represented by an

attorney.

On May 19, 2021, the ALJ issued an unfavorable decision.

Under Step One and Step Two, he found that Rutherford had not

engaged in substantial gainful activity since the onset date of

3As discussed below, Rutherford alleged a disability due to both Crohn’s disease and anxiety. Because he does not challenge the ALJ’s RFC assessment other than as it pertains to his limitations from Crohn’s disease, the court does not address Rutherford’s other symptoms or limitations.

5 his impairments and had the following severe impairments:

Crohn’s disease, asthma, anxiety disorder, and depressive

disorder. Under Step Three, the ALJ found that none of

Rutherford’s impairments met or equaled the criteria of any

listed impairment. He further found that Rutherford had the RFC

to perform light work with certain limitations. Relevant to

Rutherford’s arguments in his motion to reverse, the RFC

assessment included a limitation that Rutherford would need to

work in proximity to a bathroom and be able to take up to four

unscheduled restroom breaks per day for five minutes each time.

In response to hypothetical questions posed by the ALJ,

the vocational expert, Connie Guillory, testified to her opinion

that a person with Rutherford’s age, education, past work

experience, and RFC (as assessed by the ALJ), could not perform

Rutherford’s past relevant work, but could perform the job

duties of occupations existing in significant numbers in the

national economy. These occupations included hand packager, sub-

assembler, and inspector. Based on the ALJ’s RFC assessment and

Guillory’s testimony, the ALJ found at Step Four of the

sequential process that Rutherford could not perform his past

relevant work, but at Step Five that Rutherford could perform

other jobs and was not disabled.

6 Guillory testified that the limitation regarding restroom

usage in the ALJ’s RFC assessment—that the individual could take

up to four restroom breaks per day lasting up to five minutes

each—was a determinative factor in her opinion. Admin. Rec. at

65. In response to additional hypothetical questions posed by

the ALJ, Guillory testified that a person with Rutherford’s RFC

who was instead limited to four ten-minute restroom breaks,

rather than four five-minute restroom breaks, could not do any

jobs that existed in significant numbers in the national

economy. See id.

On September 7, 2021, the Appeals Council denied

Rutherford’s request for review, making the ALJ’s decision the

final decision of the Acting Commissioner for purposes of

judicial review. 20 C.F.R. § 422.210(a); see Sims v. Apfel, 530

U.S. 103, 107 (2000). This action followed.

DISCUSSION

Rutherford argues that the ALJ erred in his RFC assessment.

Specifically, he challenges the ALJ’s determination that he

could do light work limited by his gastrointestinal symptoms

only in that he would need to work in proximity to a bathroom

and be able to take up to four unscheduled bathroom breaks per

7 day for five minutes each time.4 The Acting Commissioner contends

that the ALJ’s decision is supported by substantial evidence.

A claimant’s RFC is “the most [the claimant] can still do

despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1). It must

be crafted by an ALJ based on all relevant evidence in the

record. Id. In so doing, the ALJ may “piece together the

relevant medical facts from the findings and opinions of

multiple physicians,” Evangelista v. Sec’y of Health & Human

Servs., 826 F.2d 136, 144 (1st Cir. 1987), but may sometimes

incorporate “common-sense judgments about functional capacity”

based upon those findings, Gordils v. Sec'y of Health & Human

Servs., 921 F.2d 327, 329 (1st Cir. 1990). The ALJ, however, may

not “interpret raw medical data in functional terms” or

substitute his own opinion on medical issues. Nguyen, 172 F.3d

at 35.

In assessing Rutherford’s RFC, and in particular his

physical limitations, the ALJ stated that his findings were

supported by “the opinions of Dr. Staley, Dr. Platter, . . . and

4 Rutherford also challenges the ALJ’s finding that the opinion of his treating physician about limitations on Rutherford’s ability to work was not persuasive. Because, as discussed below, the ALJ’s RFC assessment is flawed for other reasons, the court need not address this issue.

8 the medical evidence of record.”5 Admin. Rec. at 34. Rutherford

argues in his motion that none of the evidence the ALJ cites

supports the limitation in the RFC assessment concerning his

restroom usage. The court agrees.

I. Dr. Staley and Dr. Platter

Dr. Norman Staley and Dr. Howard Platter separately

evaluated Rutherford’s physical limitations in 2020. Dr. Staley

opined in March that Rutherford could do work without exertional

or postural limitations but would need to work near a restroom

and get frequent breaks. Dr. Platter stated in June that

Rutherford could do light exertional work, limited by the need

to work near a restroom. The ALJ found both opinions persuasive

because they were supported by and consistent with the medical

evidence, including treatment records.

Rutherford argues that neither opinion supports the

physical limitations in the ALJ’s assessment. Specifically, he

argues that neither opinion provides any basis for the ALJ to

find that Rutherford would need only four bathroom breaks

limited to five minutes each.

5 The ALJ also stated that the RFC assessment was supported by the opinions of other physicians who evaluated Rutherford’s anxiety issues and mental limitations. As mentioned above, those opinions are not relevant to Rutherford’s arguments in his motion.

9 The Acting Commissioner does not argue that either Dr.

Staley’s or Dr. Platter’s opinion directly supports the

limitation regarding Rutherford’s restroom usage. Instead, she

contends, in cursory fashion, that it is reasonable to conclude

that the opinions support the ALJ’s finding.

Assuming without deciding that the ALJ made a reasonable

inference that Dr. Staley’s and Dr. Platter’s opinions support a

limitation that Rutherford would need to use the restroom four

times during an eight-hour workday, nothing in either doctor’s

opinion supports a limit of five minutes per restroom break.

Neither doctor offered any opinion on the length of Rutherford’s

needed restroom breaks, see Admin. Rec. at 97-108 (Dr. Staley’s

opinion); id. at 111-123 (Dr. Platter’s opinion), and the ALJ

cites nothing from either doctor’s assessment that would allow

him to make an inference as to the length of the breaks.

Therefore, Dr. Staley’s and Dr. Platter’s opinions do not

support the ALJ’s RFC assessment.

II. Medical Record

In the decision, the ALJ states that the limitations in the

RFC assessment are also supported by the medical evidence of

record. However, neither the ALJ’s decision nor the Acting

Commissioner points to anything in the record that supports a

10 limitation that Rutherford would need only four restroom breaks

for five minutes each.

The closest the ALJ comes to pointing to evidence to

support that limitation is a January 2021 progress note from

Rocket Nutrition showing Rutherford’s report that he was having

four bowel movements per day in December 2020. Admin. Rec. at

1008. But, as the ALJ detailed in his decision, and as

Rutherford states in his motion, the frequency of Rutherford’s

bowel movements varied greatly, from as few as four per day to

as many as 12-14 per day, and further varied depending on how

recently he received his latest Stelara injection. See Admin.

Rec. at 30, 32. Rutherford also testified at the hearing that

during “flare-ups,” he would need to use the restroom as often

as 20 times per day, which was consistent with the opinion of

Rutherford’s treating gastroenterologist, Dr. Sophia Swanson.

Admin. Rec. at 60.

Even if the ALJ’s determination that Rutherford would need

only four restroom breaks were supported by substantial

evidence, nowhere does the ALJ point to any evidence supporting

a limitation of five minutes for each bathroom break. The only

evidence in the record that either the ALJ or the Acting

Commissioner cites regarding the length of Rutherford’s restroom

breaks is Dr. Swanson’s opinion and Rutherford’s testimony

11 during the hearing asserting that Rutherford’s restroom breaks

lasted at least 15 minutes.6 Admin. Rec. at 778-81 (Dr. Swanson’s

opinion); id. at 60 (Rutherford’s testimony).

III. RFC Assessment

The ALJ’s RFC assessment includes a limitation that

Rutherford would need to use the restroom four times, for five

minutes each time, during an eight-hour workday. Neither the

ALJ’s decision nor the record evidence offers any support for

that limitation or allows the court to conclude that a

reasonable mind could find the record adequate to support the

ALJ’s conclusion. See, e.g., Picard v. Berryhill, No. 2:16-cv-

00636-JHR, 2018 WL 1370681, at *3 (D. Me. Mar. 16, 2018)

(“[W]hen failures to explicate and/or even address material

issues prevent a reviewing court from concluding that the ALJ

reached a supportable result via an acceptable pathway,”

reversal and remand are warranted.).

For those reasons, the record lacks substantial evidence to

support the ALJ’s RFC assessment. As a result, the vocational

expert’s opinion about available jobs, based on an erroneous

hypothetical, does not constitute substantial evidence to

6 Dr. Swanson opined that Rutherford’s restroom breaks lasted up to 50 minutes. Admin. Rec. at 780.

12 support the Acting Commissioner’s burden at Step Five. See

Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374, 375 (1st

Cir. 1982).

CONCLUSION

For the foregoing reasons, Rutherford’s motion to reverse

(document no. 4) is granted. The Acting Commissioner’s motion to

affirm (document no. 5) is denied.

The case is reversed and remanded for further proceedings

under Sentence Four of § 405(g).

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Samantha D. Elliott United States District Judge

May 9, 2022

cc: Counsel of Record.