Queeney v. Berryhill
Filing
33
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 5/27/2022. Mailed notice(gel, )
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KELLY Q.,
Plaintiff,
Case No. 18-CV-3998
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Judge John Robert Blakey
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Kelly Q., who suffers from Crohn’s disease, Barrett’s Esophagus,
degenerative disc disease, asthma, and morbid obesity, among other ailments, seeks
reversal under 42 U.S.C. § 405(g) of an administrative law judge’s (“ALJ”)
determination that, despite her impairments, she has the residual functional capacity
(“RFC”) to perform past work as a 911 dispatcher. [12]. The Commissioner also seeks
summary judgment affirming the ALJ’s decision, [21]. For the reasons explained
below, the Court grants Plaintiff’s motion [12], denies the Commissioner’s motion
[21], and reverses and remands the case.
I.
Background 1
A.
Procedural History
In November 2014, Plaintiff applied for disability insurance benefits, claiming
that she became disabled in June 2013 because her Crohn’s disease, Barrett’s
Esophagus, asthma, allergies, scoliosis, and attention deficit hyperactivity disorder
1
The Court draws all facts from the Administrative Record, [9], hereinafter referred to as “R.”
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rendered her unable to work. R. at 1031–39. Her claim was initially denied on May
6, 2015, R. at 925–36, 954, and upon reconsideration on August 26, 2015, R. at 938–
52, 964–68. On February 17, 2017, the ALJ issued a written decision finding Plaintiff
was not disabled as defined under the Social Security Act (“SSA”), R. at 863–75, and
the Appeals Council denied review on April 4, 2018, R. at 1–4, making the ALJ’s
decision the final decision of the Commissioner for review, see Varga v. Colvin, 794
F.3d 809, 813 (7th Cir. 2015).
B.
Medical Record Evidence
Plaintiff’s medical records show that as early as June 2012 she sought
treatment for abdominal pain and severe diarrhea. R. at 1209–13. Doctors initially
diagnosed her with Barrett’s Esophagus (a condition affecting the lining of the
esophagus) and ulcerative colitis (inflammation of the colon lining). Id. Then in 2013,
a gastroenterologist diagnosed her with Crohn’s disease. R. at 1344–46. The doctor
prescribed her a chemotherapy drug, 6 MP, which initially improved her symptoms
but did not resolve her condition. R. at 1310, 1468. From 2013 to 2016, the severity
and frequency of her symptoms fluctuated, as her doctors tried numerous prescription
medications, but Plaintiff consistently reported frequent abdominal pain.
For
example, she reported using the bathroom 8–10 times on a bad day in July 2013, R.
at 1304; 3–8 times on a bad day in September 2014, R. at 1322; 2–3 times on a bad
day in November 2014, R. at 1324; 7–8 times on a bad day in December 2014, R. at
1414; 3–4 times on a bad day in January 2015, R. at 1623; 10–20 times on a bad day
in July 2015, id.; twice a day in November 2015, R. at 1632; and 3–5 times on a good
day but 10–15 times on a bad day in September 2016, R. at 1748–53. Her records
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also show that, at times, she self-discontinued her prescribed medications, reporting
after-the-fact that she suffered problematic side effects.
For example, she self-
discontinued 6 MP twice in 2014 and once in both 2015 and 2016 but restarted it
when her stomach issues worsened.
R. at 872, 1318, 1324, 1630–31.
She also
self-discontinued Humira, claiming it no longer helped and gave her side effects
including body aches. R. at 1611.
Plaintiff’s medical records also indicate that she suffered from a host of other
maladies over the years. As early as 2012, she repeatedly sought treatment for upper
respiratory and sinus issues, including a bout of pneumonia in July 2012, loss of
smell, asthma and recurring sinus infections and bronchitis. R. at 1209–27, 1307. In
September 2012, she began seeking treatment for back and knee pain. Id. An MRI
revealed a disc herniation, but it improved with physical therapy and spinal
injections. R. at 1310–15. Then, in July 2014, she told her gastroenterologist that
she had trouble concentrating and processing information. R. at 1300–01. At her
doctor’s recommendation, she went for psychiatric testing, and a psychiatric nurse
practitioner diagnosed Plaintiff with “Attention Deficit Disorder of Childhood With
Hyperactivity” and prescribed medication to treat her symptoms. R. at 1535–55.
In addition, in late 2015, Plaintiff saw a rheumatologist, Dr. Muthalaly,
regarding chronic pain to her elbows, feet, ankles, wrists and hands. R. at 1773–75.
Dr. Muthalaly diagnosed her with fibromyalgia but noted she had normal and full
range of motion in her elbows, wrists, and ankles, with tenderness to the bilateral
hands. Id. He prescribed Cymbalta to manage pain symptoms, following which
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Plaintiff reported “remarkable,” but not complete, relief. R. at 1611. Over this time,
doctors also diagnosed Plaintiff with other conditions, including sleep apnea,
pre-diabetes, hypothyroidism, morbid obesity, and ovarian cysts.
C.
Plaintiff’s Work History and Subjective Evidence’
Plaintiff previously worked as a full-time IT technician (1998–2002, 2004),
part-time salesclerk (2004), part-time school bus driver (2004–2008), part-time
advertisement merchandiser (2005–2006), full-time 911 dispatcher (2007–2013), and
part-time school food server (2013–2014). R. at 1097, 1120. During the hearing
before ALJ Smith, Plaintiff testified that she quit her 911 dispatch job in 2013
because she frequently called off work because of bowel incontinence and stomach
pain and her frequent, urgent, and lengthy bathroom breaks made it impossible for
her to perform the job as required, since she was not allowed to get up freely to use
the bathroom. R. at 892, 896.
After leaving her 911 dispatcher job, she took a part-time lunch server position
at an elementary school. R. at 890–91. But she claimed that she continued to suffer
stomach pain, bowel incontinence and urgency, upper respiratory issues, and back
and joint pain. Id. These afflictions, she testified, caused her to frequently call out
sick or need many breaks. Id. Although she completed the 2013–2014 school year,
she testified that her employer told her she could not return the next year because of
her repeated absences and work interruptions. Id.
Plaintiff testified that medications have helped, but not eliminated, her many
afflictions. Some, like the Humira she took for her Crohn’s disease, helped initially
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but stopped working and had significant side effects. R. at 898. She also testified
that she continues to take 6 MP, which stops “the Crohn’s from being too active.” R.
at 899. She rated her stomach pain as 10 out of 10, sometimes leaving her unable to
walk without her husband’s assistance.
R. at 898.
She takes dicyclomine and
tramadol to reduce cramping but refuses to take stronger pain medications because
she has seen “too many people who have gone down bad paths with that.” R. at 899.
Overall, she testified that, although her symptoms have improved since 2012, she can
still have up to 6–10 bowel movements on good days and up to twenty with severe
cramping on bad days. R. at 896, 914–15. She also claimed to have seven to ten “bad
days” per month and cannot identify a trigger, other than suspecting stress or
allergies. Id. at 915. She spends 5–10 minutes in the bathroom each time, and when
she feels the need to void, she can sometimes hold off on using the bathroom for 15–
20 minutes but other times she finds herself “shuffling to the bathroom quickly” and
“unable to make it” with “frequent accidents.” R. at 897, 915.
The ALJ also questioned Plaintiff about her daily activities. She testified that
she grocery shops, cooks dinner, drives her children to events, and can do some
household chores, although her stomach pain limits her ability to bend over, and her
back, hip, knee, ankle, and foot pain keeps her from comfortably walking more than
a block, standing more than twenty minutes, or sitting for more than an hour. R. at
901–02, 909–10. She also testified about ongoing sleep issues from her diagnosed
severe sleep apnea, constant pain and frequent need to use the bathroom during the
night. R. at 911. She reported needing to lie down to nap from 1–3 pm every day,
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even on days when she is “feeling good.” R. at 914. She also confirmed that she
recently took a family vacation to California, where she visited the zoo but had to
take breaks to sit or use the bathroom. R. at 903, 905.
She confirmed that her asthma remains well controlled with an inhaler and
she only requires nebulizer treatments when sick. R. at 903. She also testified that
she no longer sees a psychiatrist or counselor and does not take any medications for
her
psychiatric
issues
rheumatologist—not
a
other
than
Cymbalta
psychiatrist—prescribed
for
it
anxiety
to
(although
alleviate
pain
her
from
fibromyalgia). R. at 904. She confirmed that the Cymbalta helps control her joint
pain symptoms somewhat, although she can only take a half dosage because of
stomach pain side effects. Id. Overall, she rated her joint pain at a constant 7 out of
10 even with the Cymbalta. Id. at 909–10. She also testified that, for years, she
struggled with hand stiffness and her fingers frequently “cramp and stick straight or
stick bent.” R. at 907. She acknowledged that her rheumatologist found she can pass
finger strength tests and has not “really addressed” her hand complaints, but claimed
she struggles to “open a jar,” “cut vegetables for a long time,” or “twist the can opener
all the way.” R. at 907–08. Finally, she admitted that her gastroenterologist found
her “noncompliant” with follow-ups in July 2015 notwithstanding “exacerbation of
diarrhea,” but she blamed this on her primary care doctor’s slow referral process. R.
at 911–12.
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D.
State-Agency Experts
Three state-agency medical consultants offered opinions about Plaintiff’s
condition. First, in April 2015, clinical psychologist John Brauer interviewed Plaintiff
about her claimed mental status and reviewed her medical records. R. at 1558–61.
He found that she did not meet the diagnostic criteria for ADHD, but he diagnosed
her with an adjustment disorder with anxiety from “the impact of her illness on her
ability to live her life,” including fears about the “trajectory of her illness” and “the
social impact of incontinence in public.” Id. at 1561.
Second, in March 2015, Dr. Richard Lee Smith reviewed Plaintiff’s medical
records (but did not independently examine Plaintiff) to determine her medically
determinable impairments (“MDI”) and establish her RFC.
R. at 925–36. He
categorized as severe her inflammatory bowel disease/Crohn’s disease, obesity, and
spine disorders; but categorized as non-severe her asthma and anxiety disorders. Id.
at 929. He also found only partially credible her statements “regarding the functional
limitations” imposed by her MDIs but did not explain which portions of her claimed
functional limitations he found non-credible, particularly with respect to her
inflammatory bowel disease/Crohn’s disease symptoms.
Id. at 930. Overall, he
concluded, Plaintiff had an RFC for “a broad range of light work,” but noted
“limitations to occasional climbing, kneeling, stooping, crawling and crouching, as
these may exacerbate abdominal pain” symptoms. Id. at 934.
Third, in August 2015, Dr. Mary Ann Westfall also reviewed Plaintiff’s medical
records (but did not independently examine Plaintiff) to determine her MDIs and
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RFC.
R. at 938–51.
Dr. Westfall categorized Plaintiff’s asthma as severe, but
otherwise agreed with Dr. Smith’s MDI and RFC determinations. Id. at 944–50.
E.
ALJ’s Decision
On February 2017, the ALJ found Plaintiff not disabled after conducting the
five-step sequential test set out in 20 C.F.R. § 404.1520(a)(4). R. at 860–75. This
five-step test examines whether: (1) the claimant has performed any substantial
gainful activity during the period for which claimant asserts disability; (2) the
claimant has a severe MDI or combination of MDIs; (3) the claimant's impairment
meets or equals any listed impairment; (4) the claimant retains the RFC to perform
claimant’s past relevant work; and (5) the claimant is able to perform any other work
existing in significant numbers in the national economy. Id.; see also Zurawski v.
Halter, 245 F.3d 881, 885 (7th Cir. 2001).
The ALJ found that Plaintiff had not engaged in substantial gainful activity
since June 1, 2013 (Step 1); and that Plaintiff had a combination of severe MDIs
including Crohn’s disease, Barrett’s Esophagus, degenerative disc disease of the
lumbar spine with lumbar radiculopathy, asthma due to allergies, and morbid obesity
(Step 2); but that none met or equaled a listed impairment (Step 3). R. at 865.
Turning to Step 4, the ALJ considered the medical record, the state-agency
medical opinions, Plaintiff’s own testimony about her symptoms, and the testimony
of a third-party vocational expert.
The ALJ found that Plaintiff’s MDIs could
reasonably be expected to cause her claimed symptoms but found Plaintiff’s
statements concerning the intensity, persistence and limiting effect of her symptoms
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“not entirely consistent with the medical evidence and other evidence in the record.”
R. at 869, 872. Specifically, he found that, although the medical records confirmed
Plaintiff’s claimed abdominal pain, they did not support a 10 out of 10 pain level. Id.
at 872. The ALJ also found that although the medical records supported some of
Plaintiff’s claimed bowel incontinence and bathroom use, the records revealed that
her symptoms improved when she took medications, yet she self-discontinued these
medications from time-to-time without consulting her doctors. Id. He noted that she
most recently reported to her gastroenterologist only 3–5 bowel movements a day, not
the 20 she claimed in her testimony. Id. The ALJ also concluded that Plaintiff had
successfully “maintained the ability to work as a 911 dispatcher and a food server for
the schools” while she suffered from these symptoms. Id. at 873. Finally, he found
only partially credible her claims about back pain, asthma, and fatigue, given her
daily activities around the house and her California vacation. Id.
Overall, the ALJ gave the third-party consultant’s medical assessments great
weight and adopted their RFC determinations of light work with certain limitations.
R. at 874. Based on the vocational expert’s testimony about the demands of a 911
dispatcher job, he further concluded that Plaintiff retains the RFC to perform this
prior work. Id. Having found Plaintiff could perform prior work, he did not proceed
to Step 5 to examine whether Plaintiff could perform other work existing in the
national economy. Instead, he concluded Plaintiff was not “disabled” as defined
under the SSA from June 1, 2013, through the date of his decision. R. at 875.
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II.
Standard of Appellate Review
An ALJ’s findings of fact are “conclusive” as long as they are supported by
“substantial evidence.” 42 U.S.C. § 405(g). The “threshold for such evidentiary
sufficiency is not high”; it “means—and means only—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 Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). Courts affirm any adequately supported denial, even if
reasonable minds could disagree about disability status, Elder v. Astrue, 529 F.3d
408, 413 (7th Cir. 2008); but an ALJ must articulate a “logical bridge” from the
medical evidence to the decision, id.; see also Craft v. Astrue, 539 F.3d 668, 673 (7th
Cir. 2008). A court will remand a decision if it lacks evidentiary support or adequate
discussion of the issues to form this requisite logical bridge. Villano v. Astrue, 556
F.3d 558, 562 (7th Cir. 2009).
III.
Analysis
Plaintiff seeks reversal of the ALJ’s decision, arguing that: (1) the ALJ imposed
“an impermissibly high legal standard” on Plaintiff’s subjective testimony when he
found her “not entirely credible”, [12] at 9–15; and (2) the ALJ’s RFC analysis did not
properly account for all of Plaintiff’s impairments and failed to compare Plaintiff’s
RFC to the specific demands of her past 911 dispatcher job, id. at 4–9, 15–16. In
contrast, the Commissioner argues that: (1) there exists substantial evidence
supporting the ALJ’s RFC findings and assessment of Plaintiff’s symptoms, [22] at
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1–14; and (2) the ALJ properly concluded Plaintiff could return to her past relevant
work as a 911 dispatcher, id. at 14–15.
After reviewing the full record and as discussed below, the Court rejects many
of Plaintiff’s arguments but agrees that the ALJ failed to account for the severity of
her Crohn’s disease symptoms—particularly regarding the frequency and urgency
with which she must take bathroom breaks—when determining her RFC and ability
to perform past relevant work as a 911 dispatcher.
A.
The ALJ Did Not Impose an “Impermissibly High” Standard to
Plaintiff’s Testimony
Plaintiff complains that the ALJ imposed an “impermissibly high” standard on
her testimony when he found her subjective symptoms “not entirely consistent” with
the record evidence. [12] at 9. Plaintiff analogizes the ALJ’s “not entirely consistent”
language to the “not entirely credible” boilerplate language that the Seventh Circuit
has rejected as “meaningless” because it “yields no clue to what weight the trier of
fact gave the testimony.” Id. (quoting Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.
2010)). Plaintiff also argues that the SSA rules only require “reasonably” consistent
statements, not “entirely consistent” statements. [12] at 9 (citing SSR 16-3p. 2017
WL 5180304, at *3). Plaintiff’s arguments fail.
First, as Plaintiff acknowledges, the Seventh Circuit only takes issue with “not
entirely credible” language when offered without an explanation of which statements
“are not entirely credible or how credible or noncredible any of them are.” [12] at 9
(quoting Martinez v. Astrue, 630 F.3d 693, 696–97 (7th Cir. 2011). Here, the ALJ
engaged in a detailed analysis of how Plaintiff’s testimony differed from the medical
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records and why he concluded it lacked some credibility.
The Seventh Circuit
demands nothing more.
Second, the ALJ did not impose an impermissibly high standard. The SSA
ruling that Plaintiff references, SSR 16-3p, instructs a factfinder to analyze alleged
symptoms in two steps: (1) evaluate whether the underlying medical impairments
could “reasonably be expected to produce” the claimed symptoms; and (2) if so,
evaluate the intensity and persistence of those symptoms based on all the record
evidence even if “the level of pain an individual alleges may seem out of proportion
with the objective medical evidence.” 2017 WL 5180304, at *3.
Plaintiff argues that the ALJ should have accepted her testimony about the
severity of her symptoms so long as they remained “reasonably” consistent with her
medical impairments. [12] at 9. But SSR 16-3p’s reference to “reasonableness” goes
to the types of symptoms claimed, not the claimed intensity and persistence of those
symptoms. A fact-finder need not accept as true a claimant’s subjective testimony on
intensity and persistence; rather, the rule requires the fact-finder to “examine the
entire case record, including the objective medical evidence; an individual’s
statements about the intensity, persistence, and limiting effects of symptoms;
statements of other information provided by medical sources and other persons; and
any other relevant evidence in the individual’s case record.” Id. at *4. Except for the
errors discussed below with respect to the ALJ’s analysis of Plaintiff’s Crohn’s disease
symptoms, the ALJ properly engaged in this two-step analysis in evaluating her
symptoms’ intensity and persistence. He agreed that Plaintiff’s impairments caused
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the general symptoms that she alleged, but then discounted some of her testimony
about the severity of those symptoms based upon his review of the entire record. Such
analysis comports with the SSA rules.
B.
The ALJ’s RFC Determination
In Step 2 of the 5-part test, the ALJ found that Plaintiff suffered from severe
MDIs—namely, Crohn’s disease/irritable bowel syndrome; Barrett’s Esophagus;
degenerative disc disease of the lumbar spine with lumbar radiculopathy; asthma due
to allergies; and morbid obesity. R. at 865. He also found that she suffered from the
following non-severe MDIs that do not cause significant functional limitations:
(1) hypothyroidism; (2) knee issues; and (3) attention deficit disorder and adjustment
disorder with anxiety. R. at 865–67. Further, he found the record did not support a
diagnosis of fibromyalgia. Id. at 866. The ALJ then determined that Plaintiff retained
the functional capacity to perform light work. Id. at 873.
Plaintiff contests the ALJ’s RFC determination, arguing that he improperly
rejected her fibromyalgia diagnosis and other joint/muscle symptoms; failed to
properly account for her mental impairments; and failed to account for symptoms
related to her Crohn’s disease/irritable bowel syndrome.
She also claims that,
because the ALJ failed to properly account for her symptoms, he improperly
determined she could perform her prior work as a 911 dispatcher. [12] at 4–9, 15–16
1.
Fibromyalgia and Joint/Muscle Impairments
Contrary to Plaintiff’s claims, the ALJ’s decision confirms that he accounted
for Plaintiff’s joint and muscle impairments when he found that Plaintiff’s RFC
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limited her to light work with certain limitations in lifting, moving, and bending and
set out detailed reasons for finding Plaintiff’s subjective pain ratings only partially
credible. R. at 866, 869–71, 873. He did not ignore her pain symptoms and agreed
that her symptoms impaired to some extent her ability to sit, stand, and walk. But
he explained that the medical records confirmed that physical therapy, injections,
and Cymbalta alleviated some of her pain; she did not require surgery or medical
devices; and on physical exams she showed “normal muscles strength, intact
sensation, normal reflexes, limited tenderness and a normal gait.” Id. at 873. He
also gave great weight to the state-agency consultants who offered detailed opinions
on Plaintiff’s joint and muscle pain history and agreed that these impairments
limited Plaintiff to light work with certain postural and environmental limitations.
R. at 874.
Plaintiff next argues the ALJ erred by discounting her physician’s fibromyalgia
diagnosis and relying on the state-agency consultants who offered opinions before the
physician diagnosed Plaintiff with fibromyalgia and other progressive joint issues.
[12] at 5–6. The Court disagrees. The ALJ adequately set out his reasons for
discounting the fibromyalgia diagnosis—he found that the physician only relied on
Plaintiff’s subjective complaints and did not review her medical history, and he noted
that the rest of her medical records did not support such a diagnosis. R. at 866. Yet,
even if the ALJ erred in discounting the fibromyalgia diagnosis or improperly took
his “lay medical analysis” over that of a trained professional, [12] at 6, the error
proves harmless. The ALJ still accounted for Plaintiff’s numerous reported joint and
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muscle symptoms (whether classified as fibromyalgia or not) in the RFC limitations
he imposed. Further, even if the state-agency consultants did not review all the
medical records (because some post-date their record review), the ALJ reviewed them
and concluded that they did not diminish the credibility of the consultants’
muscle/joint impairment evaluation. R. at 868–74. To the contrary, the subsequent
records confirmed that Plaintiff reported significant pain relief from Cymbalta,
injections, and other non-invasive therapies. Id. The records also supported, rather
than undermined, the consultants’ conclusions that Plaintiff suffered with
muscle/joint conditions that impaired her ability to perform certain types of work but
did not render her unable to perform light work of a primarily sedentary nature. Id.
2.
Concentration Impairments
Plaintiff next argues that the ALJ’s RFC evaluation failed to account for her
concentration impairments. R. at 8–9. According to Plaintiff, the ALJ committed
reversable error when he failed to question the vocational expert regarding the
impact that concentration impairments would have on the ability to perform certain
jobs. Id. Not so.
As discussed above, the two-part test for alleged symptoms required the ALJ
to evaluate whether an MDI reasonably could cause certain alleged symptoms and, if
so, evaluate the frequency and persistence of those symptoms. Here, the ALJ
analyzed, in detail, Plaintiff’s claimed mental impairments and concluded her
“medically determinable mental impairments of attention deficit disorder and
adjustment disorder with anxiety, considered singly and in combination, do not cause
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more than minimal limitation on the claimant’s ability to perform basic mental work
activities and are therefore non-severe.” R. at 866–67. The ALJ also analyzed the
medical records and Dr. Brauer’s psychological consultative examination, finding
that, among other things, these records show “concentration and attention to be
within normal limits,” and Plaintiff’s more recent medical records reveal she
“reported feeling well overall.” R. at 871.
Having found that the medical records confirm Plaintiff’s “concentration and
attention to be within normal limits” it comes as no surprise that the ALJ did not
question the vocational expert regarding what impact, if any, such “normal”
concentration and attention would have on Plaintiff’s ability to work. In other words,
having found that Plaintiff’s non-severe mental impairment would not reasonably
cause the concentration and attention symptoms she claimed and that here
concentration fell “within normal limits,” there remained nothing more for the ALJ
to evaluate.
C.
Plaintiff’s Crohn’s Disease Symptoms and Limitations
Finally, Plaintiff argues that the ALJ’s RFC determination failed to properly
account for her Crohn’s disease symptoms and limitations. The Court agrees.
First, as discussed above, the ALJ acknowledged that the medical records
showed Plaintiff consistently reported frequent abdominal cramps and that her bowel
movement frequency fluctuated over time, but he did not credit Plaintiff’s claimed
abdominal pain level or bathroom frequency of twenty times a day. In addition, he
criticized Plaintiff for self-discontinuing medications that she previously reported
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alleviated her bowel incontinence.
He also found that, even if she had such
symptoms, he believed she “maintained the ability to work as a 911 dispatcher and a
food server” and did so “without alleging serious issues.” R. at 873. After making
these credibility determinations, he summarily concluded that Plaintiff could still
reasonably perform her prior job as a 911 dispatcher. R. at 874.
Plaintiff argues on appeal that the ALJ failed to properly consider her
bathroom needs when evaluating her RFC and her past work as a 911 dispatcher.
[12] at 5–7.
Plaintiff highlights the vocational expert’s testimony that a 911
dispatcher must be on-task more than 95 percent of the time and all light duty
occupations require at least an 85 percent on-task rate. Id. at 6. She insists that her
testimony and medical records confirm that the frequency, persistence, and severity
of her bowel movement “precluded any employment possibilities.” Id. at 7.
The Seventh Circuit addressed similar issues in Sikorski v. Berryhill, 690 Fed.
App’x 429 (7th Cir. 2017), where a claimant alleged that her Crohn’s disease
symptoms and bowel incontinence, among other things, rendered her disabled.
There, the ALJ found the claimant’s testimony about the severity of her impairments
and bathroom needs only partially credible; noted a lack of clear documentation about
her Crohn’s disease flare-ups; and found she could work in 2005 “when her Crohn’s
symptoms were worse.” Id. at 432. The Seventh Circuit reversed. The court noted
that the vocational expert opined that an employee may take five-minute bathroom
breaks every two hours for the occupations under consideration, but that “a person
requiring ten-minute breaks would not be able to find competitive work.” Id. at 432.
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Given this, the court held that ALJ failed to resolve the frequency and duration of the
claimant’s bathroom break needs and “did not adequately justify her conclusion that
Sikorksi could perform her past work.” Id. at 433. The court also rejected the ALJ’s
finding that the claimant successfully performed her job in 2005, stating “the record
of her past work does not reflect whether her employer was forgiving by making an
exception to allow her lengthy bathroom breaks. Moreover Sikorski testified at the
hearing that her need during her shipping-checker job to spend significant time in
the bathroom caused her to leave this job.” Id. at 433.
The ALJ’s decision here suffers from the same flaws as the one in Sikorski.
Here, the vocational expert testified that a 911 dispatcher’s on-task rate could not fall
below 95 percent more than one day per month; nor could a 911 dispatcher have two
unscheduled absences per month. R. at 920–22. He also testified that no light work
occupation permits an employee to fall below 85 to 90 percent on-task time. Id. at
920. Even if the ALJ discredited Plaintiff’s claimed bathroom use frequency, the
medical records show that, most recently, Plaintiff used the bathroom 3–5 times a
day on a good day and 10–15 times a day on a bad day. R. at 1748–53. And even if
Plaintiff occasionally self-discontinued medications, the records indicate that she still
suffered bathroom urgency (albeit less frequently) while medicated and that the
medications’ effectiveness varied over time. R. 1304, 1322, 1324, 1414, 1623, 1632,
1748–53. Plaintiff also testified that she suffers “bad days” up to seven times per
month and requires 5–10 minute for each bathroom break. She also testified that she
experienced significant stress as a 911 operator, which exacerbated her flare ups.
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Yet, the ALJ failed to evaluate whether and to what extent Plaintiff’s bathroom needs
could impact her ability to perform her past work as a 911 dispatcher (or any other
light work). He also did not ask the vocational expert if a 911 dispatcher could take
urgent five- or ten-minute breaks, regardless of the frequency. Nor did he consider
Plaintiff’s claims about stress exacerbating her symptoms. Further, contrary to the
ALJ’s findings, the record suggests Plaintiff did not maintain “the ability to work as
a 911 dispatcher and a food server.” Plaintiff testified that she had to quit her 911
dispatcher job because she called out sick too frequently and needed too many
bathroom breaks. She also testified, and her employee files confirm, that her food
service employer did not ask her back for a second year because of her attendance
issues, which related to these symptoms (and others). R. at 890–91, 1164–66.
This constitutes reversable error. See, e.g., Sikorski, 690 Fed. Appx. at 433;
Richard K. v. Saul, No 18-C-7316, 2020 WL 1986985, at 4–5 (N.D. Ill. Apr. 17, 2020)
(finding reversable error where an ALJ’s RFC evaluation “did not incorporate any
bathroom-related limitations” because she failed to determine how long the claimant
“needs for breaks and whether an employer could tolerate such work interruptions.”);
Mark J. v. Saul, No 18-C-8479, 2020 WL 374676 (N.D. Ill. Jan. 23, 2020) (same).
As another court emphasized in Manker v. Berryhill, No. 16-C-10704, 2017 WL
6569719, at *4 (N.D. Ill. Dec. 22, 2017), the frequency and duration of bathroom
breaks are “highly relevant to the denial of benefits” for a claimant suffering from
irritable bowel syndrome. For example, if Plaintiff requires only three bathroom
breaks a day lasting five minutes each, then perhaps she can perform the 911
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dispatcher job. But, if she required five bathroom breaks of ten minutes each, even
if only twice a month, then the vocational expert’s testimony suggests she could not
perform her 911 dispatch job, particularly if the need comes on suddenly. If she had
two bad days a month with more than eight bathroom breaks of ten minutes each,
then, according to the vocational expert, this may render her unemployable in any
light duty job.
The Commissioner counters that the ALJ found “no off-task time was
required.” [22] at 7. Yet, the Commissioner fails to point to where the ALJ made
such a finding. The Commissioner also argues that the state-agency consultants’
findings and the vocational expert’s testimony provide sufficient support for the ALJ’s
RFC finding. [22] at 14–15. But the consultants also did not discuss Plaintiff’s
bathroom break needs and only generally considered if she could perform light duty
work with certain limitations, not whether she could perform light duty work that
demands greater than 95 percent on-task time. Further, as discussed above, the ALJ
failed to ask the vocational expert numerous questions about the impact of some of
these Crohn’s disease-related symptoms.
Just like the Seventh Circuit held in
Sikorksi, 690 Fed. Appx. at 433, this Court “cannot be confident that the ALJ provided
the vocational expert with a complete picture” of Plaintiff’s RFC.
Accordingly, the Court reverses and remands this case so that the ALJ can
evaluate how (if at all) Plaintiff’s Crohn’s disease symptoms—including the
sometimes urgent and frequent need for bathroom breaks, associated time off-task
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and off-work, and impact of stress on those symptoms—impact her ability to perform
her past work as a 911 dispatcher or any alternative light duty work.
IV.
Conclusion
For the reasons discussed above, the Court grants the Plaintiff’s request for
reversal [12] and denies the Commissioner’s motion for summary judgment, [21].
Pursuant to 42 U.S.C. § 405(g), the Court reverses the Commissioner’s decisions
denying benefits and remands the case for further proceedings consistent with this
opinion. Civil case terminated.
Dated: May 27, 2022
Entered:
_________________________________
John Robert Blakey
United States District Judge
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