Allen v. Colvin

Filing 16

MEMORANDUM: For the reasons set forth above, the decision of the Commissioner of Social Security is reversed and remanded. The action is remanded to the Commissioner for further development of the record. The ALJ is instructed to consider plaint iff's chronic diarrhea as a condition separate from GERD. The ALJ is further instructed to investigate the uncontrolled and spontaneous nature of plaintiffs diarrhea, especially with regard to his specific bathroom availability requirements, and, if necessary, obtain relevant VE testimony. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 5/15/2017. (CLO) (copy sent to Bureau of Hearings and Appeals)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DOUGLAS R. ALLEN,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security
Defendant.

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No. 4:16 CV 652 DDN

MEMORANDUM
This action is before this court for judicial review of the final decision of the
Commissioner of Social Security finding that plaintiff Douglas R. Allen is not disabled
and, thus, not entitled to disability insurance benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. §§ 401 et seq. The parties have consented to the exercise of
plenary authority by the undersigned United States Magistrate judge pursuant to 28
U.S.C. §§ 636(c). For the reasons set forth below, the decision of the Commissioner is
reversed and remanded.

I.

BACKGROUND
Plaintiff was born in June 1951 and worked professionally as an airplane pilot.

(Tr. 123, 127, 150-61). Plaintiff’s insured status under Title II of the Act expired on
March 31, 2017. (Tr. 9, 113). He filed his application for DIB in December 2012,

1

The Hon. Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Federal Rule of Civil Procedure 25(d), she is substituted in her official
capacity for Carolyn W. Colvin as the defendant in this suit. 42 U.S.C. § 405(g) (last
sentence).

alleging a total disability onset date of April 27, 2012. 2 (Tr. 45, 51, 123-24). Plaintiff
claims that his irritable bowel syndrome (“IBS”) limits his ability to work. (Tr. 47, 126,
135, 140, 216). His application was denied on February 28, 2013, and he requested a
hearing before an administrative law judge (“ALJ”). (Tr. 9, 54-58, 61). A hearing was
held in September 2014, where plaintiff testified.

(Tr. 21-44).

By decision dated

December 19, 2014, the ALJ found that plaintiff was not disabled under the Social
Security Act.

(Tr. 6-16).

The ALJ determined that plaintiff retained the residual

functional capacity (“RFC”) to perform jobs available in the national economy. Id. On
January 14, 2016, the Appeals Council of the Social Security Administration denied
plaintiff’s request for review of the ALJ’s decision. (Tr. 1-5). Consequently, the ALJ’s
decision stands as the final decision of the Commissioner.
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence.
Specifically, he asserts that the ALJ erred in finding that plaintiff’s bathroom breaks can
be scheduled, failed to articulate the weight given to the opinion of plaintiff’s treating
specialist and the testimony of plaintiff’s wife, produced an improperly vague RFC
finding, and relied on unreliable VE testimony. Plaintiff asks that judgment be entered in
his favor.

A.

Medical Record and Evidentiary Hearing
The court adopts plaintiff’s unopposed statement of facts (ECF No. 15), as well as

defendant’s unopposed statement of facts. (ECF No. 20). These facts, taken together,
present a fair and accurate summary of the medical record and testimony at the
evidentiary hearing. The court will discuss specific facts as they are relevant to the
parties’ arguments.

2

To be entitled to disability benefits under Title II of the Act, plaintiff has the burden to
show disability prior to the expiration of his insured status on March 31, 2017. (Tr. 9,
113). See 20 C.F.R. § 404.130; Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009).
Thus, the relevant period for consideration in this case is from April 27, 2012, plaintiff’s
alleged onset date, through March 31, 2017, the date the plaintiff’s insured status ended.
2

B.

ALJ’s Decision
The ALJ found that plaintiff suffered from the severe impairment of

gastroesophageal reflux disease (“GERD”) and that he had not engaged in substantial
gainful activity since his alleged onset date. (Tr. 11). The ALJ concluded that plaintiff’s
GERD did not meet or equal an impairment listed in the Commissioner’s regulations.
(Tr. 14-15).
The ALJ determined that plaintiff’s impairment left him with the RFC to “perform
a full range of work at all exertional levels,” though “he must have access to restroom
facilities during all regularly scheduled breaks.” (Tr. 12). The ALJ considered plaintiff
to be
generally credible in his allegations as the medical record shows
complaints to his medical providers that are consistent with his
allegations. Additionally, the [plaintiff] has a strong work history and at
the hearing expressed a sincere regret that he was unable to fly due to his
issues. This suggests a positive desire to work and bolsters the [plaintiff's]
credibility.
(Tr. 13) (bolding added). Nevertheless, the ALJ also found that the objective medical
evidence did not support the severity of his allegations. Although plaintiff complained he
“has frequent bowel urgency, makes efforts to know the location of and be near a
restroom, and has been unable to make it to a restroom before defecating,” the ALJ
reasoned that “there is no objective medical evidence to support these allegations and
[his] medical providers have not indicated his condition prevents him from working.”
(Tr. 13).
The ALJ noted that plaintiff passed his most recent pilot physical in June 2014,
has had normal colonoscopies, and has had negative results for other related tests. (Tr.
13-14). The ALJ also noted that his activities of daily living are those associated with an
able individual: “caring for pets, tending to personal needs, preparing meals, driving,
shopping in stores, using a computer, attending church weekly, and biking 10 to 15 miles
several times a week.” (Tr. 14). The ALJ did not discuss the weight given to any of the
medical sources.
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Because plaintiff’s previous work as a pilot would not give him ready access to a
restroom during breaks, the ALJ concluded plaintiff is unable to perform his past relevant
work. (Tr. 14).3 However, considering plaintiff’s age, education, work experience, and
RFC, the ALJ relied on the testimony of a vocational expert (“VE”) to find there were
jobs in significant numbers in the national economy that a person like plaintiff could
perform. (Tr. 14-15). The ALJ therefore concluded that plaintiff is not disabled. Id.

II.

DISCUSSION
Plaintiff argues that the ALJ produced an improperly vague RFC finding, erred in

his finding that plaintiff’s bathroom breaks could be scheduled, failed to articulate the
weight given to the opinion of plaintiff’s treating specialist and the testimony of
plaintiff’s wife, and relied on unreliable VE testimony.

A.

General Legal Principles
In reviewing the denial of Social Security disability benefits, the court’s role is to

determine whether the Commissioner’s findings comply with the relevant legal
requirements and are supported by substantial evidence in the record as a whole. PateFires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). “Substantial evidence is less than a
preponderance, but is enough that a reasonable mind would find it adequate to support
the Commissioner’s conclusion.” Id. In determining whether the evidence is substantial,
the court considers evidence that both supports and detracts from the Commissioner’s
decision. Id. As long as substantial evidence supports the decision, the court may not
reverse it merely because there is substantial evidence in the record that would support a
contrary outcome or because the court would have decided the case differently. See
Johnson v. Astrue, 628 F.3d 991, 992 (8th Cir. 2011).
To be entitled to disability benefits, a claimant must prove that he is unable to
perform any substantial gainful activity due to a medically determinable physical or
3

Apparently the ALJ credited plaintiff's testimony that he was terminated from his pilot
position, because he soiled his aircraft seat while flying. (Tr. 13).
4

mental impairment that would either result in a death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D),
(d)(1)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework is used to
determine whether an individual is disabled. 20 CFR § 404.1520(a)(4); see also PateFires, 564 F.3d at 942 (describing the five-step process).
Steps One through Three require the claimant to prove (1) he is not currently
engaged in substantial gainful activity, (2) he suffers from a severe impairment, and (3)
his disability meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to Steps Four and Five.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform past relevant
work (“PRW”).

Id. at § 404.1520(a)(4)(iv).

The claimant bears the burden of

demonstrating he is no longer able to return to his PRW. Pate-Fires, 564 F.3d at 942. If
the Commissioner determines the claimant cannot return to his PRW, the burden shifts to
the Commissioner at Step Five to show the claimant retains the RFC to perform other
work that exists in significant numbers in the national economy.

Id.; 20 C.F.R. §

404.1520(a)(4)(v).

B.

The ALJ’s Decision is Not Supported by Substantial Evidence
An ALJ’s decision is not supported by substantial evidence if it fails to “clearly

and directly” assess all of a claimant’s functional limitations. Grissom v. Barnhart, 416
F.3d 834 (8th Cir. 2005). In assessing the claimant’s limitations to determine his RFC,
an ALJ must consider all of the relevant evidence, including “an individual’s own
description of his limitations.” McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir.
2003). The ALJ must explain her assessment of the RFC with specific references to the
record.

SSR 96-8p (the RFC assessment must cite “specific medical facts (e.g.,

laboratory findings) and nonmedical evidence (e.g., daily activities, observations)” in
describing how the evidence supports each conclusion). Throughout this inquiry, the

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burden of persuasion to prove disability and to demonstrate RFC is on the claimant.
Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016).
In this case, the ALJ found plaintiff had the capacity to work around regularly
scheduled breaks, so long as he had access to restroom facilities during those breaks. (Tr.
12-14). Plaintiff argues that this conclusion finds no support within the medical record.
Plaintiff points to specific instances in the record where he was diagnosed with diarrhea,
a sense of rectal urgency or “tenesmus,” and rectal incontinence. (Tr. 216, 288, 292, 305,
309, 317, 319, 323-24). While the ALJ found plaintiff to be generally credible, she
pointed to a lack of objective medical evidence to support the severity of his subjective
complaints. She noted clinical observations and medical testing that were inconsistent
with plaintiff’s allegations of frequent and uncontrollable bowel urgency: normal
colonoscopies in August 2012 and October 2013 and negative results for bacterial testing.
(Tr. 13, 215, 303, 320, 331).
The ALJ also considered that plaintiff took prescription medication to treat his
gastrointestinal issues, and reported on two different occasions that it largely controlled
his GERD.

(Tr. 13, 233, 323) (plaintiff reported he was “doing great” on the

medication). At his 2014 hearing, plaintiff testified that medication for his diarrhea helps
around 30 percent of the time. (Tr. 1, 32). If a plaintiff’s medical impairment is
controlled with treatment, it is not disabling. Lawson v. Colvin, 807 F.3d 962, 965 (8th
Cir. 2015). Moreover, the ALJ emphasized that none of plaintiff’s physicians imposed
functional limitations suggesting that plaintiff could not work. (Tr. 13). Ponder v.
Colvin, 770 F.3d 1190, 1195 (8th Cir. 2014) (holding that a lack of restrictions imposed
by treating physicians supported the ALJ’s denial of benefits).
Additionally, the ALJ considered plaintiff’s daily activities to be inconsistent with
his alleged symptoms: plaintiff rides his bike 10 to 15 miles a day several days a week
up to 100 miles a week, prepares his own meals daily, cleans, does laundry, performs
household repairs, irons, mows the lawn, often leaves his home on foot, car, or bicycle,
works on an amateur radio for several hours a day, attends church weekly, and regularly
socializes at his home or other people’s homes. (Tr. 13-154, 42, 136-39, 234).
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This evidence notwithstanding, the ALJ erred. It is well settled that an ALJ has a
duty to develop the record fully and fairly. Snead v. Barnhart, 360 F.3d 834, 836–37 (8th
Cir. 2004). Failing to develop the record is reversible error when it does not contain
enough evidence to determine the impact of a claimant’s impairment on his ability to
work. Byes v. Astrue, 687 F.3d 913, 916 (8th Cir. 2012) (citing Freeman v. Apfel, 208
F.3d 687, 692 (8th Cir. 2000) (“[I]t is reversible error for an ALJ not to order a
consultative examination when such an evaluation is necessary for [her] to make an
informed decision.”) (citations omitted).
At Step Two, the ALJ discussed plaintiff’s GERD and knee pain, but she did not
discuss plaintiff’s chronic diarrhea. (Tr. 11). Elsewhere in the opinion, the ALJ conflates
plaintiff’s GERD and diarrhea as “digestive related issues.”

(Tr. 13).

plaintiff’s treatment records discuss these as separate conditions.

However,

(Tr. 323-24).

Plaintiff’s claim for disability refers to his chronic, spontaneous diarrhea, not any
gastroesophageal concerns. (Tr. 47, 126, 135, 140, 216). Plaintiff alleges that the
diarrhea began after the removal of his gall bladder, and he supported this allegation with
evidence from his wife, various medical literature, and some medical records. (Tr. 194,
208-14, 323-25). The ALJ credited plaintiff’s subjective complaints about his diarrhea.
(Tr. 13). She did not discredit plaintiff’s claim that his diarrhea was spontaneous and
uncontrolled. (Tr. 13). The ALJ erred in failing to consider the diarrhea as a condition
separate from GERD.
Additionally, at Step Five, the Commissioner must prove that plaintiff is capable
of competitive employment in the national economy. Nevland v. Apfel, 204 F.3d 853,
857-58 (8th Cir. 2000) (citing Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir. 1975)).
The ALJ is entitled to weigh various medical opinions, but she is not free to make her
own independent medical findings or draw her own inferences from medical reports. Id;
Pate–Fires, 564 F.3d at 946–47. If the record is underdeveloped, the ALJ needs to obtain
clarifying information from a medical source with relevant expertise. Goff v. Barnhart,
421 F.3d 785, 791 (8th Cir. 2005). The ALJ has an obligation to clarify or augment the
records if the medical evidence is insufficient, which may include contacting the treating
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physician, requesting additional records, ordering a consultative examination, or asking
the claimant or others for additional information. 20 C.F.R. § 404.1520b (2012); see also
77 Fed. Reg. 10655 (Feb. 23, 2012).
In this case, at Step Four, the ALJ found that plaintiff was unable to perform his
PRW, based on VE testimony that pilots do not always have ready access to restrooms
during scheduled breaks. (Tr. 188). At Step Five, the ALJ did not rely on any medical
opinions. Instead, the ALJ inferred from treatment notes that plaintiff’s IBS could be
accommodated by access to restrooms during scheduled breaks. (Tr. 12-14). For all the
ALJ’s emphasis on the results of colonoscopies and bacterial tests, there is no substantial
evidence in the record that explains the relevance of those results to plaintiff’s alleged
symptoms, which the ALJ credits. Moreover, plaintiff’s allegations of daily living are
not inconsistent with his alleged symptoms.

As in Nevland, while there are some

treatment notes as to plaintiff’s impairments in the record, none comment on plaintiff’s
ability to function in the workplace or on the schedulable nature of his symptoms.
Nevland, 204 F.3d at 858.
In the case at bar, the ALJ found that plaintiff’s impairments prevent him from
doing past work, but it is unclear how his alleged and credited IBS impairment affects his
RFC to do other work. The ALJ’s failure to develop this point was not harmless error,
because the VE testified that requiring three to five spontaneous bathroom breaks
throughout the workday would preclude an individual from maintaining competitive
employment. (Tr. 192, 200).

III.

CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social

Security is reversed and remanded. The action is remanded to the Commissioner for
further development of the record. The ALJ is instructed to consider plaintiff’s chronic
diarrhea as a condition separate from GERD. The ALJ is further instructed to investigate
the uncontrolled and spontaneous nature of plaintiff’s diarrhea, especially with regard to

8

his specific bathroom availability requirements, and, if necessary, obtain relevant VE
testimony. An appropriate Judgment Order is issued herewith.

/S/ David D. Noce
u
UNITED STATES MAGISTRATE JUDGE
Signed on May 15, 2017.

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