UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brenda Trudnak

v. Civil No. 17-cv-195-LM Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security

O R D E R

Brenda Trudnak seeks judicial review, pursuant to

(g), of the decision of the Acting Commissioner of the

Social Security Administration, denying her application for

disability insurance benefits. Trudnak moves to reverse the

Acting Commissioner’s decision, contending that the

Administrative Law Judge (“ALJ”) erred by failing to perform a

function-by-function assessment for purposes of determining her

residual functional capacity, and by failing to determine the

medical necessity of her assistive devices. The Acting

Commissioner moves to affirm. For the reasons explained below,

the court remands this case to the Acting Commissioner for

further proceedings.

STANDARD OF REVIEW

In reviewing the final decision of the Acting Commissioner

in a social security case, 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,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s factual

findings as long as they are supported by substantial evidence.

(g); see also Fischer v. Colvin,

(1st Cir. 2016). “Substantial evidence is more than a scintilla.

It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Astralis Condo. Ass’n v.

Sec’y Dep’t of Housing & Urban Dev.,

(1st Cir.

2010).

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis.

(a)(4). The claimant “has the burden of production and

proof at the first four steps of the process.” Freeman v.

Barnhart,

(1st Cir. 2001). The first three

steps are (1) determining whether the claimant is engaged in

substantial gainful activity; (2) determining whether she has a

severe impairment; and (3) determining whether the impairment

meets or equals a listed impairment.

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

At the fourth step of the sequential analysis, the ALJ

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

which is a determination of the most a person can do in a work

2 setting despite her limitations caused by impairments,

§ 404.1545(a)(1), and her past relevant work, id.

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

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

disabled. See id. If the claimant cannot perform her past

relevant work, the ALJ proceeds to Step Five, in which the ALJ

has the burden of showing that jobs exist in the economy which

the claimant can do in light of her residual functional capacity

assessment. See id. § 404.1520(a)(4)(v).

BACKGROUND1

On March 25, 2014, Trudnak applied for disability insurance

benefits, claiming a disability that began on June 10, 2013. She

was 48 years old at the time of her application, had a high

school education, and had previously worked as a licensed nursing

assistant (“LNA”). Trudnak alleged that she was disabled because

of lower-back problems and an injured left leg, which arose from

an incident at work where Trudnak pulled her left leg while

moving a patient.

1 A detailed statement of the facts can be found in the parties’ Joint Statement of Material Facts (doc. no. 14).

3 I. Record Evidence

On March 17, 2016, a hearing before an ALJ was held on

Trudnak’s application for benefits. Trudnak was represented by

an attorney and testified at the hearing. Michael La Raia, a

vocational expert, appeared and testified by phone.

In order to provide some context, the court summarizes

relevant portions of the record. Generally, Trudnak presented

evidence to show that, as a result of her lower-back problems and

the symptoms resulting therefrom, she had extremely limited

mobility and could not stand or walk for even short periods of

time.

On this question, the medical records are mixed. Some

records show that, since June 2013, Trudnak has had significant

pain in her back and left leg, which limits her ability to walk

and stand. Over the years since her accident, Trudnak reported

and sought treatment for these medical issues, and she has

variously used a cane, a walker, and crutches to ambulate and

perform daily activities. In addition, at the hearing, Trudnak

testified about her physical limitations in her current part-time

job as a linen folder. Trudnak testified that, during a 7.5 hour

workday, she alternates between standing and sitting every twenty

minutes, and she takes approximately four thirty-minute breaks in

order to lie down in her van.

4 On the other hand, there are medical records which indicate

that, since 2013, Trudnak has been able to ambulate without

assistance, and which arguably show that Trudnak’s alleged

functional limitations are more intermittent than continuous.

The record also contains a number of evaluations completed

by various medical professionals regarding Trudnak’s capacity to

work. In September 2014, Louis Rosenthall, M.D., the state

agency consultant, completed an RFC assessment. He opined that

Trudnak could only perform sedentary work, could stand or walk

for up to two hours per eight-hour workday, and required a cane

throughout the workday. In February 2016, Dennis Badman, M.D.,

completed an RFC assessment, in which he opined that Trudnak

could only stand or walk for less than two hours per workday.

II. ALJ’s Decision

On July 8, 2016, the ALJ issued an unfavorable decision.

The ALJ found that Trudnak had severe impairments due to lumbar

radiculitis and spondylosis, along with non-severe impairments

due to obesity, bilateral carpal tunnel syndrome, alcohol abuse,

and a middle finger trigger release surgery. The ALJ found that

Trudnak’s impairments did not meet any listed impairments.

The ALJ then determined that Trudnak had the residual

functional capacity to do light work, as defined by

(b). In reaching this conclusion, the ALJ determined

5 that Trudnak’s physical abilities were more significantly

curtailed in the immediate aftermath of her June 2013 injury.

The ALJ found that Trudnak’s condition improved within one year,

but that her remaining lower-back problems and impairments

limited her to performing light work. The ALJ did not adopt Dr.

Badman’s RFC assessment. The ALJ gave “limited weight” to Dr.

Rosenthall’s evaluation “to the extent that it reflects

[Trudnak’s] abilities immediately after the alleged onset date,”

but the ALJ found that “her condition improved within 12 months”

such that she could perform light work. Admin. Rec. at 29. The

ALJ stated that she based this conclusion on Trudnak’s testimony,

the “objective evidence in the form of MRI results, and such

documentation of the . . . treatment and examination findings as

have been provided to this proceeding.” Id. at 29. The ALJ did

not rely on any other expert evaluation to reach this conclusion.

Based on that RFC finding, the ALJ determined that Trudnak

could not perform her past relevant work as a LNA, but that, in

light of the medical-vocational guidelines, she could perform

other jobs existing in the national economy. See 20 C.F.R. Pt.

404, Subpt. P, App. 2, Rules 202.14, .21. Therefore, the ALJ

found that Trudnak was not disabled within the meaning of the

Social Security Act. The Appeals Council denied Trudnak’s

6 request for review, making the ALJ’s decision the Acting

Commissioner’s final decision.

DISCUSSION

In support of her motion to reverse the Acting

Commissioner’s decision, Trudnak argues that the ALJ erred by (1)

failing to perform a function-by-function assessment of Trudnak’s

physical abilities; and (2) failing to determine whether any of

Trudnak’s assistive devices—her cane, walker, or crutches—were

medically necessary. The Acting Commissioner moves to affirm.

The court examines each argument in turn.

I. RFC for Light Work

Trudnak contends that the ALJ failed to perform a function-

by-function assessment in making the RFC finding. Trudnak

asserts that a more developed explanation was necessary in this

case, given the contrary evidence that her limitations on

standing, sitting, and walking would not permit her to perform

light work. The Acting Commissioner responds that the ALJ

adequately explained her reasoning regarding Trudnak’s functional

limitations, and that such reasoning is supported by substantial

evidence.

As noted above, a claimant's RFC is an assessment of the

most that a claimant can still do despite limitations. 20 C.F.R.

7 § 404.1545(a)(1). “The ALJ is responsible for determining a

claimant’s RFC based on all relevant evidence in the record. In

making that determination, the ALJ is responsible for resolving

any conflicts in the evidence.” St. Laurent v. Berryhill, No.

17-cv-053-LM,

, at *3 (D.N.H. Mar. 28, 2018)

(citation omitted). Furthermore, “the ALJ must specify the

evidentiary basis for his RFC determination.” Canfield v. Apfel,

No. Civ. 00-267-B,

, at *5 (D.N.H. Apr. 19, 2001).

The Social Security Administration specifically requires

that the ALJ conduct “a function-by-function consideration of

each work-related ability before expressing the RFC in terms of

the exertional categories of ‘sedentary,’ ‘light,’ and so forth.”

Gallagher v. Astrue, No. 08-cv-163-PB,

, at *7

(D.N.H. Apr. 3, 2009) (citing SSR 96-8p,

, at *3

(1996)). Such an analysis is important because it ensures that

an ALJ does not “overlook some of an individual's limitations or

restrictions, which could lead to an incorrect use of an

exertional category to find that the individual is able to do

past relevant work and an erroneous finding that the individual

is not disabled.” Beaune v. Colvin, No. 14-cv-174-PB,

, at *2 (D.N.H. July 10, 2015) (internal brackets and

quotation marks omitted).

8 Nevertheless, “courts have held that a failure to [perform a

full function-by-function assessment] will not invalidate the

decision if the functional limitations can be inferred from the

record as a whole.” Id. at *3. Thus, “the relevant inquiry

should be whether the ALJ applied the correct legal standards and

whether the ALJ's determination is supported by substantial

evidence.” Id. (internal quotation marks omitted); see also

MacKenzie v. Colvin, No. 15-cv-198-JD,

, at *3

(D.N.H. Feb. 23, 2016) (“[A]n ALJ's failure to assess all

functional limitations . . . is harmless if the functional

assessment is provided in the record.”).

Here, the court concludes that the ALJ’s RFC assessment is

erroneous both with respect to Trudnak’s limitations on walking

and standing, and with respect to the overall conclusion that

Trudnak could perform light work.

A. Trudnak’s Limitations on Walking and Standing

As noted above, the ALJ found that Trudnak could perform the

full range of light work. A job is in the category of light work

“when it requires a good deal of walking or standing, or when it

involves sitting most of the time with some pushing and pulling

of arm or leg controls.”

(b). As further

explicated by Social Security Ruling 83-10, “the full range of

light work requires standing or walking, off and on, for a total

9 of approximately 6 hours of an 8-hour workday. Sitting may occur

intermittently during the remaining time.” SSR 83-10,

, at *6.

It is not completely clear what evidence the ALJ relied on

to determine that Trudnak had the requisite abilities to stand

and walk during the workday. The ALJ cited only the following

evidence: (1) at an emergency room visit for left-leg swelling in

July 2013, Trudnak reported that she had been “standing outside

all day at the races” the day before, Admin. Rec. at 416; and (2)

Trudnak’s job as a linen folder requires that she stand or walk

“as much as 6 hours per day,” id. at 29.

Without additional explanation, the first reason is

insufficient. The record shows that, one month after her work

injury, Trudnak visited an emergency room complaining of pain and

swelling in her left leg. Trudnak reported to the physician that

she had been “standing outside all day at the races yesterday.”

Id. at 416. From this, the ALJ apparently found that Trudnak

could stand and walk for 6 hours per day on a regular and

continuing basis. See SSR 96-8p,

, at *2 (“RFC is

the individual's maximum remaining ability to do sustained work

activities in an ordinary work setting on a regular and

continuing basis.”). The court fails to see the reasonable

connection between Trudnak standing at an event on one occasion

10 and the broad conclusion that she can stand and walk for 6 hours

per workday, especially given that the event precipitated an

emergency-room visit due to swelling and pain.

The second reason appears, on its face, to be a misstatement

of the evidence. At her current part-time job as a linen folder,

Trudnak works up to 7.5 hours per day. However, Trudnak

testified that she alternates between standing and sitting every

twenty minutes, and she takes approximately four thirty-minute

breaks in order to lie down in her van. Thus, the time that she

spends standing or walking is far less than six hours per

workday. Indeed, the ALJ noted this testimony in the decision,

but nonetheless concluded without elaboration that Trudnak stood

or walked for as much as six hours per day as a linen folder.

The ALJ’s decision reveals no rationale for this contrary

finding. To be sure, the ALJ was free to credit or not credit

Trudnak’s description, but the ALJ could not “reject evidence for

no reason or the wrong reason.” Hildalgo-Rosa v. Colvin,

(D.P.R. Aug. 28, 2014). Therefore, the ALJ’s

finding relating to Trudnak’s limitations on walking and standing

is not supported by substantial evidence.

11 B. ALJ’s Overall RFC Assessment

The ALJ’s overall conclusion that Trudnak could perform

light work appears to be based on the combination of Dr.

Rosenthall’s 2014 evaluation and Trudnak’s subsequent functional

improvements. That is, the ALJ adopted Dr. Rosenthall’s opinion

as the baseline for Trudnak’s functional abilities after her June

2013 injury—sedentary work and a limit of two hours of walking

or standing—and then concluded that Trudnak’s abilities had

subsequently improved to the point that she could perform light

work. The ALJ stated that this RFC finding “is supported by

[Trudnak’s] testimony regarding low back and left leg pain, the

objective evidence in the form of MRI results, and such

documentation of [Trudnak’s] treatment and examination findings.”

Admin. Rec. at 29.

The problem is that the ALJ’s conclusion is not tethered to

any expert opinion or evaluation. Generally, an expert “is

necessary to provide a functional capacity assessment based on

medical data.” McGowen v. Colvin, No. 15-cv-329-JD,

, at *7 (D.N.H. Mar. 15, 2016). Although an ALJ may

render “common-sense judgments about functional capacity based on

medical findings,”

in this case the ALJ appears to have

relied on raw medical data from Trudnak’s physical examinations

to reach the conclusion that Trudnak’s functional abilities had

12 improved to the level that she could perform light work. “This

is something the ALJ cannot do.” Wallace v. Colvin, No. 2:12-CV-

578,

, at *6 (N.D. Ala. Apr. 1, 2013) (concluding

that ALJ inappropriately considered “the doctor's reports

regarding [claimant’s] range of motion, the results of his

straight leg raise tests, and the findings about his motor

strength and sensory functioning,”); see also Willey v. Colvin,

No. 15-cv-368-JL,

, at *6 (D.N.H. Apr. 7, 2016), R

& R approved by

(D.N.H. Apr. 29, 2016).

Moreover, the ALJ’s vague allusions to Trudnak’s testimony,

the “objective evidence,” and the other documentation in the

record do not constitute an adequate explanation that would

permit meaningful judicial review to “determine whether the

administrative decision is based on substantial evidence.”

Crosby v. Heckler,

(D. Mass. 1985).

Consequently, a remand is required for further explanation and

investigation. See

For these reasons, the court remands the case for further

consideration of Trudnak’s RFC and, once determined, of her

ability to perform work existing in significant numbers in the

national economy.

13 II. Assistive Devices

Trudnak next argues that the ALJ never explicitly determined

whether her various assistive devices—a cane, crutches, and

walker—were medically necessary. Trudnak cites Social Security

Ruling 96-9p for the proposition that the ALJ must make such a

determination when the record indicates that the claimant relies

on a handheld assistive device. See SSR 96-9p,

,

at *7 (1996). The Acting Commissioner responds that the ALJ did

make such a determination and that it was supported by

substantial evidence.

The court declines to address this issue. Given the court’s

remand order, as well as the fact that Trudnak’s use of assistive

devices is related to and intertwined with the general RFC

determination, the court considers it appropriate for the ALJ to

consider this issue again as part of the overall reconsideration

of the RFC assessment.

CONCLUSION

For the foregoing reasons, the Acting Commissioner's motion

to affirm (doc. no. 12) is denied, and Trudnak’s motion to

reverse (doc. no. 11) is granted to the extent that the case is

remanded to the Acting Commissioner for further proceedings,

pursuant to sentence four of

(g). The clerk of

14 the court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

May 3, 2018

cc: Counsel of Record

15