Opinion
Civil Action No. 6:19-3413-RMG-KFM
11-23-2020
Brenda Martin, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on December 17, 2015, alleging that she became unable to work on June 1, 2013. The application was denied initially and on reconsideration by the Social Security Administration. On August 3, 2016, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff, her attorney, and Carroll H. Crawford, an impartial vocational expert, appeared on August 16, 2018, considered the case de novo, and on September 19, 2018, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 16-26). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on August 9, 2019 (Tr. 5-9). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on December 31, 2016.
(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of June 1, 2013, through her date last insured of December 31, 2016 (20 C.F.R. § 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: irritable bowel syndrome ("IBS"), colitis, and status post appendectomy and hernia repair (20 C.F.R. § 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. § 404.1567(c) with restroom breaks being accommodated by normal breaks.
(6) Through the date last insured, the claimant was capable of performing past relevant work as a carpenter, maintenance repairer, project manager, and assembler. This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. § 404.1565).
(7) The claimant was not under a disability, as defined in the Social Security Act, at any time from June 1, 2013, the alleged onset date, through December 31, 2016, the date last insured (20 C.F.R. § 404.1520(f)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any 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." 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 51 years old on her alleged onset date (June 1, 2013) and 55 years old on her date last insured (December 31, 2016). She completed her education with her GED, and she has past relevant work as a carpenter, maintenance repairer, project manager, and assembler (Tr. 24, 32).
On August 6, 2012, the plaintiff was seen by Jason Dahlberg, M.D., at Uptown Family Practice for hypertension, chest pain, gastroesophageal reflux disease ("GERD"), and heavy menstrual cycles (Tr. 227). On August 24, 2012, she was still having heavy periods (Tr. 230). On July 3, 2013, the plaintiff was seen for a followup of her GERD and hypertension (Tr. 238). On July 31, 2013, she was seen for followup of an appendectomy performed on July 10, 2013. She had a normal physical examination, and Dr. Dahlberg advised her to stop smoking. She was diagnosed with chronic obstructive pulmonary disease ("COPD") and hypertension (Tr. 241-42). On October 3, 2013, she had bronchitis and bulging over her appendectomy incision site. A persistent cough caused pain over her incision. Dr. Dahlberg noted some movement of the abdominal wall over the scar, but no palpable hernia. He suspected weakened abdominal musculature (Tr. 243-44). On November 21, 2013, the plaintiff had an acute exacerbation of her COPD (Tr. 245-46).
On March 28, 2014, Dr. Dahlberg noted that the plaintiff had a history of high blood pressure (Tr. 248). On April 9, 2014, she was willing to discuss a colonoscopy, but she was not sure she wanted one (Tr. 267). On August 12, 2014, she returned with abdominal pain, bloating, and watery diarrhea. The plaintiff had diffuse and crampy abdominal pain overnight. Her abdomen was mildly distended with decreased bowel sounds, but no guarding. A CT scan showed a "colitis type picture," and Dr. Dahlberg diagnosed colitis (Tr. 251-53). On August 21, 2014, the plaintiff stated she could not afford the $500.00 required for the colonoscopy. She was referred to the Colon Cancer Prevention Service (Tr. 254). On October 22, 2014, the plaintiff reported a "knot" in her stomach every time she ate or coughed. She had milder diarrhea and colitis. She had an area below her umbilicus on the left that protruded when she coughed. Dr. Dahlberg diagnosed an incisional hernia and referred the plaintiff to a surgeon (Tr. 257-58).
On November 5, 2014, John Konsek, M.D., confirmed the hernia diagnosis and advised the plaintiff to quit her heavy tobacco intake to maximize a good surgical outcome. Dr. Konsek explained the association between heavy tobacco use and recurrent hernia formation and wound infection. She agreed to return in a month after stopping all tobacco intake (Tr. 300-01).
On April 2, 2015, the plaintiff underwent a laparoscopic incisional hernia repair (Tr. 303-04). On May 12, 2015, the plaintiff was doing well (Tr. 305). On October 20, 2015, the plaintiff complained to Dr. Konsek that one of her incisions had been irritated since the hernia repair. He noted that all of the incisions had healed nicely, and other examination findings were normal. Dr. Konsek recommended that the plaintiff see Dr. Dahlberg for treatment of the irritated skin (Tr. 307-08).
On December 11, 2015, the plaintiff reported to Dr. Dahlberg that she had diarrhea and bloating. She said that these symptoms had improved after her hernia surgery, but then the diarrhea got worse. A colonoscopy and abdominal examination were normal. Dr. Dahlberg assessed irritable bowel syndrome ("IBS") and prescribed Xifaxan (Tr. 263-65).
On March 18, 2016, the plaintiff was seen for COPD and GERD, as well as IBS and allergic rhinitis. The plaintiff was feeling well, but still had diarrhea. Her abdomen was normal, soft and nontender, without masses and with active bowel sounds. Dr. Dahlberg prescribed Viberzi in lieu of Xifaxan, which the plaintiff said she could not afford (Tr. 316-18).
In March and June 2016, state agency medical consultants Matthew Fox, M.D., and William Crosby, M.D., opined that the plaintiff could perform medium work (Tr. 36, 48).
On July 1, 2016, Dr. Dahlberg noted that the plaintiff was losing weight (Tr. 351).
On October 28, 2016, Dr. Dahlberg noted that the plaintiff had chronic diarrhea that limited her daily activities. She had to go to the bathroom hourly. Her abdomen was normal, soft and nontender, without masses and with active bowel sounds. Dr. Dahlberg prescribed cholestyramine for IBS (Tr. 340-43). On the same date, Dr. Dahlberg wrote that the plaintiff had symptoms of chronic diarrhea, weight loss, and loss of appetite due to IBS and hypertension. She experienced these symptoms at a level of intensity sufficient to markedly interfere with concentration and/or performance on a continual basis. She would experience more than four episodes per day, lasting more than 20 minutes. The plaintiff had daily episodes and could not go to church or attend other activities due to diarrhea. Her impairments were reasonably consistent with the symptoms and functional limitations described in the evaluation. The plaintiff needed a job that permitted ready access to a bathroom. Dr. Dahlberg opined that she could sit and stand for only 15 minutes at one time, and sit, stand, or walk for less than two hours each in an eight-hour workday. She would need to take unscheduled restroom breaks during an eight-hour workday. She would need to be away from the workstation for an average of five to ten minutes for unscheduled restroom breaks. She had only a one minute advance notice of her need for a restroom break. She could frequently lift 50 pounds and engage in postural activities. The plaintiff would be absent more than three days per month. The plaintiff's CT scans showed evidence of colitis at times, and she could not afford IBS medications (Tr. 321-25).
On February 9, 2017, the plaintiff saw Dr. Dahlberg for a complete physical. She reported that since her last visit, her health had been "good." She had a normal physical examination, including her abdomen, which was non-tender with no masses, hernia, hepatomegaly, or splenomegaly (Tr. 335-38). Although the plaintiff continued taking her anti-diarrhea medications, she reported in late 2017 and early 2018 (a year after her date last insured) that she still had diarrhea (Tr. 327, 331). She continued to have normal examinations, including examinations of her abdomen (Tr. 329-30, 333-34).
On October 13, 2017, the plaintiff still had diarrhea even though she was taking cholestyramine and Lomotil (Tr. 331). On February 2, 2018, she had diarrhea without any changes (Tr. 327-30).
On August 16, 2018, the plaintiff testified at the administrative hearing that she was born September 16, 1961. She was 5'7" and weighed 198 pounds, and she lived with her husband. She had a driver's license and was able to drive. She drove to the grocery store, the doctor's office, and the gas station. The plaintiff testified that she stopped working due to stomach problems and a hernia surgery. She tried to change her diet, but her stomach problems worsened. She had to go to the bathroom a lot, and she had accidents (Tr. 376). She could do her housework, but it took her a long time because she had IBS. She went to the bathroom every 15 or 20 minutes. Sometimes she made it to the bathroom without having an accident, but sometimes she did not. The plaintiff testified that she had been going to the bathroom every 15 to 20 minutes for about three years. She took one medication twice a day, but it did not help. Her doctor changed her blood pressure medication to a type of medication that had constipation as a side effect, but that did not help either (Tr. 377-78). The plaintiff stated that when she had diarrhea, she was typically in the restroom for ten minutes. The time spent in the bathroom depended on how much she had to clean up. She stated she was in the bathroom five times before going into the hearing. She wore protective undergarments sometimes, but her diarrhea was very watery, and the undergarments did not always work (Tr. 379-80).
The plaintiff did not have pain with the diarrhea, but she was bloated. Her condition had not improved at all since 2013. Her condition had worsened a little as she was going to the bathroom more often than she used to. The plaintiff stated that she could not perform a job in which she was seated all day because she had no warning as to when she needed to go to the bathroom. If her diarrhea was coming, she had to get to the bathroom right at that moment. She no longer attended church, because she had an accident there once, and she had other accidents when away from home (Tr. 381-82). The plaintiff testified that she was able to cook and clean her house, but she had to take bathroom breaks. She mostly stayed home and did what she could at the house. Her grandsons did the yardwork. She was able to lift things, but she had unpredictable bowel movements (Tr. 382-83).
The vocational expert classified the plaintiff's past work as that of carpenter, medium, skilled work, Specific Vocational Preference ("SVP") of 7, Dictionary of Occupational Titles ("DOT") No. 860.381-022; maintenance repairer, medium, skilled, SVP of 6, DOT No. 899.381-010; project manager, medium, skilled, SVP of 7, DOT No. 929.137-022; and assembler, light, unskilled, SVP of 2, DOT No. 706.684-022 (Tr. 384-85).
The ALJ proposed the following hypothetical: "Assume an individual with the claimant's age, education, and past relevant work as the claimant. Assume the individual is limited to medium work, but restroom breaks would be accommodated by normal breaks" (Tr. 385). The vocational expert testified that the individual could perform the plaintiff's past relevant work. She could also perform unskilled, medium work such as hand packager, SVP of 2, DOT No. 920.587-018, with 105,000 jobs nationally; order filler, medium, SVP of 2, DOT No. 922.687-058, with 102,000 jobs nationally; and produce packer, medium, SVP of 2, DOT No. 920.687-134, with 140,000 jobs nationally (Tr. 385-86).
The ALJ asked the vocational expert to consider additional limitations of needing a five to ten minute unscheduled restroom break hourly or having three absences a month. The vocational expert stated that those limitations would preclude all employment (Tr. 386-87).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) failing to sufficiently explain the findings in the residual functional capacity ("RFC") assessment, as required by Social Security Ruling ("SSR") 96-8p; (2) failing to properly assess the opinion of Dr. Dahlberg; and (3) failing to properly evaluate her subjective complaints (doc. 18 at 10-26).
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, and the ALJ does so by considering all of the relevant medical and other evidence in the record. Id. §§ 404.1545(a)(3), 404.1546(c). Social Security Ruling 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed
in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted).
Further, "[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." Id. The Fourth Circuit Court of Appeals has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. . . .Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit Court of Appeals panel held, "Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or so severe that it prevent[ed] him from working a full eight-hour day." 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that "'[o]bjective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available, should be obtained and considered.'" Id. at 564. The court further acknowledged:
***
It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.
While objective evidence is not mandatory at the second step of the test, "[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers."Id. at 565 n.3 (quoting Craig, 76 F.3d at 595). See Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. § 404.1529(c)(2) ("We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.").
A claimant's symptoms, including pain, are considered to diminish her capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. § 404.1529(c)(4). Furthermore, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence he relies on" in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). In making these determinations, the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *10 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
(1) the individual's daily activities;20 C.F.R. § 404.1529(c).
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." SSR 96-8p, 1996 WL 374184, at *7. The regulations require that all medical opinions in a case be considered. 20 C.F.R. § 404.1527(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. Id. § 404.1527(c)(2). If a treating physician's opinion is not given controlling weight, the ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based upon the following non-exclusive list of factors: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. § 404.1527(c)(1)-(5). See also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005).
These regulations apply for applications, like the plaintiff's, filed before March 27, 2017. See 20 C.F.R. § 404.1527. In the argument regarding medical source opinion evidence, the plaintiff's counsel cites recent changes made to the federal regulations (doc. 18 at 10-18). However, the new regulations quoted by the plaintiff apply to applications filed on or after March 27, 2017, and thus do not apply to the plaintiff's application, which was filed on December 17, 2015 (Tr. 32). See 20 C.F.R. § 404.1520c. See also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017).
All of the plaintiff's allegations of error relate to the ALJ's finding in the RFC assessment that any bathroom breaks the plaintiff needed for her IBS and colitis could be accommodated by normal breaks (Tr. 19). The ALJ acknowledged that the plaintiff "allege[d] disability primarily on frequent bathroom use due to diarrhea" (Tr. 21). The ALJ then discussed the following evidence, as is relevant to the issues raised here: the plaintiff's medical treatment for IBS, colitis, appendicitis, and hernia repair; the objective evidence, including a CT scan showing a colitis-type stricture and a normal colonoscopy; the plaintiff's complaints of diarrhea and bloating since August 2014; the numerous medications prescribed for treatment of the plaintiff's colitis and IBS; the plaintiff's complaints to Dr. Dahlberg in October 2016 that she had to go to the bathroom hourly; the plaintiff's testimony at the administrative hearing that she had to the bathroom every 15 to 20 minutes and that she had frequent accidents; the medical records showing that the plaintiff gained weight since the alleged onset date; treating physician Dr. Dahlberg's opinion that the plaintiff needed a job that permitted ready access to the bathroom and hourly unscheduled restroom breaks each lasting five to ten minutes, she would only have one minute advance notice of the need for a restroom break, and she would be absent from work more than three days per month due to her impairments; and the state agency physicians' opinions that the plaintiff could perform medium work (Tr. 19-24).
The ALJ concluded that "[a]ny bathroom breaks [the plaintiff] need[ed] for her IBS and colitis [could] be accommodated by normal breaks, as the evidence simply [did] not support more frequent use." The ALJ found that the "the medical evidence support[ed] [the plaintiff's] alleged symptoms of diarrhea and bloating, but not her allegations regarding the frequency of her bowel movements" (Tr. 22). In reaching this conclusion, the ALJ noted that the plaintiff had "never reported such frequency to her medical providers," noting that she complained to Dr. Dahlberg that she went to the bathroom hourly, but she never reported going up to four times per hour as she testified in the administrative hearing. The ALJ further noted that the following evidence was "inconsistent with the frequency and severity of the diarrhea alleged": the plaintiff's weight gain since her alleged onset date; no evidence in the record of vitamin deficiency, anemia, or dehydration; and Dr. Dahlberg consistently described the plaintiff as normally nourished and in no acute distress (Tr. 22). The ALJ gave "little weight" to Dr. Dahlberg's opinion, noting that he was not a specialist in gastroenterology; he offered no objective findings in support of the assessed limitations and instead referred only to the plaintiff's subjective complaints; and the portion of the opinion regarding the frequency of the plaintiff's bowel movements was inconsistent with the plaintiff's weight gain and lack of anemia or vitamin deficiencies (Tr. 23). In making the RFC assessment, the ALJ gave "great weight" to the opinions of the state agency medical consultants, who opined that the plaintiff could perform medium work (Tr. 24).
Notably, Dr. Dahlberg did state that the plaintiff's CT scans showed evidence of colitis at times (Tr. 325).
The RFC limitation to "restroom breaks being accommodated by normal breaks" would include morning, lunch, and afternoon breaks. SSA Program Operations Manual System, ch. DI, subch. 24510.005(C)(2)(b), available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510005. Thus, the ALJ determined that the plaintiff's need for bathroom breaks could be accommodated by a break every two hours. Even assuming that the ALJ appropriately found that the plaintiff did not need to use the restroom every hour as she reported to Dr. Dahlberg and as Dr. Dahlberg opined, there is no indication that the ALJ considered the alleged urgency of the plaintiff's bowel movements in the RFC analysis. The plaintiff testified that she often had no forewarning, there were times that she could not get to the bathroom in time, and she had accidents that required her to change her clothes (Tr. 149-50, 154, 215, 381-83). Also, Dr. Dahlberg opined that the plaintiff needed ready access to the bathroom, hourly unscheduled restroom breaks, and would only have one minute advance notice of the need for a restroom break. The ALJ failed to explain how the evidence did not support the alleged urgency of the plaintiff's bowel movements. Further, as argued by the plaintiff, the ALJ relied exclusively on objective medical evidence, in contravention of SSR 16-3p, in disregarding her subjective complaints, and he failed to consider additional factors such as the ineffectiveness of her medications and her inability to afford "IBS/ diarrhea variant meds" or specialized treatment (doc. 18 at 24-25) (citing Tr. 325).
"A proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion,' and '[t]he second component, the ALJ's logical explanation, is just as important as the other two." Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019), as amended (Feb. 22, 2019)). Here, the ALJ failed to sufficiently explain how the evidence did not support the alleged urgency of the plaintiff's bowel movements. Accordingly, the undersigned recommends that this matter be remanded for further analysis and explanation of the plaintiff's RFC as explained above. See, e.g., Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted).
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address any remaining allegations of error. The ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); see Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). As such, should the district court adopt this recommendation and remand the matter, the ALJ should also take into consideration the plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge November 23, 2020
Greenville, South Carolina The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).