Carr v. Commissioner of Social Security Administration
Memorandum Opinion and Order: The Commissioner's decision is AFFIRMED. Magistrate Judge Kathleen B. Burke on 6/28/2017. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
KRISTA R. CARR,
COMMISSIONER OF SOCIAL
CASE NO. 5:16CV2247
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff Krista Carr (“Carr”) seeks judicial review of the final decision of Defendant
Commissioner of Social Security (“Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Doc. 1. This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned Magistrate
Judge pursuant to the consent of the parties. Doc. 13.
For the reasons stated below, the decision of the Commissioner is AFFIRMED.
I. Procedural History
Carr filed applications for DIB and SSI on October 15, 2013, alleging a disability onset
date of September 1, 2013. Tr. 19, 187, 194. She alleged disability based on the following:
Crohn’s Disease and stomach pain. Tr. 228. After denials by the state agency initially (Tr. 86,
87) and on reconsideration (Tr. 106, 107), Carr requested an administrative hearing. Tr. 140. A
hearing was held before Administrative Law Judge (“ALJ”) Tracey B. Leibowitz on August 4,
2015. Tr. 38-68. In her August 7, 2015, decision (Tr. 19-31), the ALJ determined that there are
jobs that exist in significant numbers in the national economy that Carr can perform, i.e., she is
not disabled. Tr. 30. Carr requested review of the ALJ’s decision by the Appeals Council (Tr.
14) and, on August 9, 2016, the Appeals Council denied review, making the ALJ’s decision the
final decision of the Commissioner. Tr. 1-3.
A. Personal and Vocational Evidence
Carr was born in 1989 and was 24 years old on the date her applications were filed. Tr.
29, 194. She graduated from high school, obtained State Tested Nurse Aide status, and
previously worked as a mental retardation aide. Tr. 45, 47-48, 65, 229.
B. Medical Evidence
In September 2011, Carr underwent exploratory surgery as a result of a history of
abdominal discomfort, nausea, vomiting, and some loose stool; multiple emergency room visits;
and a possible bowel obstruction. Tr. 276. Gastroenterologist Mona Shay, D.O., saw Carr and
discussed with her that the surgery revealed a small bowel obstruction and inflammatory changes
that suggest Crohn’s disease. Tr. 276-277. Dr. Shay discussed the importance of medication
compliance and follow-up. Tr. 277.
In January 2013, Carr was living in West Virginia and saw Michael Roberts, M.D.,
because she had a retained capsule that she had never passed after an endoscopy performed for
her Crohn’s disease. Tr. 300. The capsule was in Carr’s distal ileum, where there was a twist.
Tr. 300. She reported that she was taking Remicade for her Crohn’s and described intermittent
obstructive symptoms that were not severe at that time. Tr. 300. Dr. Roberts noted that Carr had
a history of colon resection surgery and recommended another resection surgery after further
diagnostic testing. Tr. 300, 302.
Dr. Roberts performed surgery on February 26, 2013 (Tr. 1037-1038) and, in April 2013,
opined that Carr had recovered post-operatively and had no work restrictions. Tr. 1019-1020.
Carr was not restarted on Remicade. Tr. 323. In March 2013 a CT of her gallbladder showed a
poorly distended gallbladder with the wall appearing to be concerning for inflammation and
acalculus cholecystitis. Tr. 1024-1025.
Thereafter, Carr moved back to Ohio. She had three hospital visits in July 2013. At the
first she reported pain, nausea, vomiting and diarrhea. Tr. 562. A CT scan was normal. Tr. 323.
She was discharged with pain medication. Tr. 564. At the second, she reported pain and
vomiting since the night before. Tr. 541. A CT scan showed inflammation of the distal ileum.
Tr. 544, 323. She was discharged with pain medication. Tr. 753. At the third, she reported pain,
nausea and vomiting. Tr. 487. She stated that she had just moved to the area and had not been
taking Remicade. Tr. 487. She last took it in November 2012. Tr. 589. She was admitted,
placed on antibiotics, and was seen by Edward Schirack, D.O., an associate of Dr. Shay’s, for a
gastroenterology consultation. Tr. 323, 312. Dr. Schirack noted that Carr had been working and
that she had not been receiving medical therapy for her Crohn’s. Tr. 312. He explained that the
type of Crohn’s that Carr had tended to require ongoing therapy, and Carr reported that she has
recurrences “almost immediately when stopping medications.” Tr. 312. A colonoscopy showed
a normal colon and mild inflammatory changes in her ileum. Tr. 323. Dr. Schirack started her
on medication, including prednisone. Tr. 323.
At a follow up visit with Dr. Schirack in early August she reported six loose bowel
movements a day, intermittent vomiting, and constant abdominal pain. Tr. 323. She reported
that her abdominal pain was the type she had previously experienced and that Remicade had
helped. Tr. 323. Dr. Schirack adjusted Carr’s medication and began preclearance for Remicade.
Tr. 325. Carr reported no weight loss. Tr. 323. She weighed 227 pounds. Tr. 323.
On September 6, 2013, Carr saw Dr. Schirack after having been hospitalized the previous
day for pain, nausea and vomiting. Tr. 319, 611. Dr. Schirack observed that Carr’s “history has
been difficult as she has had these episodes of nausea, vomiting and ... pain which have not
really been correlating with disease activity of Crohn disease.” Tr. 318. He noted that her recent
small bowel x-ray and CT scans had been normal. Tr. 318. He adjusted her medications,
continued her Remicade, and recommended a referral to pain management for her complaints of
abdominal pain to prevent recurrent hospitalizations. Tr. 320.
On September 11, 2013, Carr went to the hospital for her Remicade infusion and was
transferred to the emergency room because of headache and vomiting. Tr. 996. A drug screen
came back positive for cannabinoids. Tr. 996.
On September 16, 2013, Carr had a follow-up visit with Dr. Shay. Tr. 326. Carr had
been hospitalized the previous week. Tr. 326. Dr. Shay remarked, “[Carr’s] history seems to
vary depending on where she is being evaluated.” Tr. 326. She noted Carr’s recent emergency
room visits and her normal recent diagnostic tests results. Tr. 326, 328. Carr reported to Dr.
Shay that she had had a reaction to her Remicade infusion. Tr. 326. Dr. Shay had multiple
conversations with nursing staff and Dr. Schirack, reviewed Carr’s history, and stated, “There is
some concern with pain medication seeking behavior.” Tr. 328. Carr’s medications were
adjusted and an ultrasound ordered. Tr. 328. Dr. Shay also discussed with Carr the need to
avoid emergency room visits to assist with the continuity of care. Tr. 328. Carr was to return for
a follow up visit in three weeks. Tr. 328. Dr. Shay requested insurance authorization for Humira
based on Carr’s stated reaction to the Remicade. Tr. 328.
On September 29, 2013, Carr went to the emergency room for abdominal pain, nausea,
vomiting and watery stools. Tr. 334. Her symptoms were noted to be similar to those at her
previous emergency room visits. Tr. 334. Carr reported that her gastroenterologist indicated that
her Crohn’s was in remission. Tr. 334. She was reminded of the importance of managing her
chronic pain with her gastroenterologist to ensure continuity of care. Tr. 338. She received pain
medication upon discharge. Tr. 338.
The next day Carr drove herself to a different hospital emergency room complaining of
abdominal pain, nausea and vomiting. Tr. 937. The treatment notes indicate that she had been to
other emergency rooms but that tests have been negative. Tr. 937. Carr reported that the onset
of her symptoms had been gradual and her associated symptoms were “occasional” vomiting.
Tr. 938. She was diagnosed with chest wall pain and discharged with pain medication. Tr. 939940.
Carr continued to seek treatment through various hospital emergency departments. See,
e.g., Tr. 344, 916, 1042, 1084, 1134, 1103. At an October 2013 visit, she was diagnosed with
“chronic pain w/ narcotic dependency and inappropriate narcotic seeking behavior.” Tr. 899.
She was encouraged to be compliant and to establish pain management care. Tr. 899.
Carr stopped seeing Dr. Schirack and started seeing Frank D. Lazzerini, M.D, as her
primary care physician. Tr. 1134. An abdominal CT scan in early December 2013 showed no
evidence of active Crohn’s disease or bowel obstruction, post-surgical changes, and a small
bowel hernia that had not changed since the last examination. Tr. 1106. Dr. Lazzerini referred
Carr to gastroenterologist Ghulam Mir, M.D., who started Carr on Humira in January 2014. Tr.
1146, 1148. On March 11, Carr stated that the Humira was helping. Tr. 1073. At the time she
reported abdominal pain, diarrhea, nausea and vomiting. Tr. 1073. On March 29, she went to
the emergency room and a CT scan showed two areas of narrowing in the sigmoid colon which
could relate to contractions or strictures, no obstruction, and fluid in her colon consistent with
mild colitis. Tr. 1100.
In April she reported constant nausea without vomiting, diarrhea up to 8 times a day, and
blood in her stool one week prior. Tr. 1143. In May 2014, an abdominal and chest x-ray was
unremarkable (Tr. 1217) and a colonoscopy revealed ulceration in the terminal ileum compatible
with Crohn’s disease. Tr. 1213.
On June 18, 2014, Carr went to the hospital for severe abdominal pain. Tr. 1299. She
was seen for a gastroenterologist consultation with Essam Quraishi, M.D. Tr. 1301. Dr.
Quraishi observed, “Patient has been in the hospital multiple times in the last month with
complaints of abdominal pain.” Tr. 1301. She was currently on Humira. Tr. 1301. Dr. Quraishi
observed that “the last few admission[s] there was no obvious evidence of severe Crohn’s
noted.” Tr. 1301. Her last CT scan was 1 ½ weeks prior and was not consistent with severe
Crohn’s exacerbation. Tr. 1301. Dr. Quraishi continued, “The patient has been on high dose
narcotic medications and continues to get those.” Tr. 1301. He found no convincing evidence of
Crohn’s, did not repeat a CT scan based on her past multiple CT scans, and recommended no
medication from a gastrointestinal standpoint. Tr. 1302. Carr was “very upset” that she was not
getting pain medications. Tr. 1302. Two days prior to seeing Dr. Quraishi, she had gotten a
120-count prescription for Percocet from Dr. Lazzerini. Tr. 1168.
On July 17, 2014, Carr saw Dr. Mir and reported nausea every couple of days, vomiting
2-3 times per week, and diarrhea 6-7 times a day. Tr. 1213. Dr. Mir’s impression was “Crohn’s
disease, on relapse, on Humira.” Tr. 1215.
Carr saw Dr. Mir in August 2014 and had no GI complaints. Tr. 1209. She still had
abdominal pain, was on Humira, and was having 3-4 bowel movements a day. Tr. 1209. A CT
scan on September 16 showed a small bowel obstruction in Carr’s mid to lower right abdomen.
Tr. 1289. An x-ray on September 17 showed no evidence of bowel obstruction and that the
previously noted dilated loops of small bowel had resolved. Tr. 1276.
On October 11, 2014, Carr went to the emergency room for nausea, vomiting and
abdominal pain. Tr. 1252. A CT scan showed short segment bowel dilation with wall
thickening, which may be related to active Crohn’s, and potential focal ileus that warranted
continued surveillance to document whether it resolved or progressed. Tr. 1254. In November
2014, Carr underwent a surgical intervention for an incisional hernia and strictures from Crohn’s
disease, including a small bowel resection. Tr. 1228-1229. Six inches of bowel were removed
and her hernia was repaired. Tr. 1228.
In March 2015 Carr complained to Dr. Mir of nausea and vomiting every other day or
every day, abdominal pain, and diarrhea approximately eight times a day for the past “couple
weeks.” Tr. 1401. She weighed 229 pounds. Tr. 1402.
In all, Carr had about 30 hospital visits in two years.
C. Medical Opinion Evidence
1. Treating Source
In November 2013, Dr. Schirack filled out an assessment form, wherein he stated that he
last saw Carr in September 2013; she had not been compliant with office visits and was not
returning phone calls; and she had not started the Humira as recommended. Tr. 1001-1002,
1017. Dr. Schirack left blank the section asking what, if any, limitations Carr would have
performing work-related activities due to her impairments. Tr. 1002.
2. State Agency Reviewers
In January 2014, state agency physician Steve McKee, M.D., reviewed Carr’s record. Tr.
76. He opined that Carr’s impairments (Crohn’s disease and stomach pain) were non-severe. Tr.
In April 2014, state agency physician Elizabeth Das, M.D., reviewed Carr’s record. Tr.
88. Dr. Das opined that Carr’s impairments (Crohn’s disease, stomach pain, obesity) were
severe. 91. Regarding Carr’s residual functional capacity (RFC), Dr. Das opined that Carr could
perform light work, including the ability to lift or carry 20 pounds occasionally and 10 pounds
frequently, sit about six hours in an eight-hour workday, and stand and/or walk about six hours in
an eight-hour workday. Tr. 93. She could occasionally climb ramps/stairs and
ladders/ropes/scaffolds, stoop, crouch, crawl, and frequently balance. Tr. 93. Dr. Das observed
that Carr’s Crohn’s disease was in remission, she had no weight loss, and her symptoms did not
correlate with Crohn’s disease. Tr. 93-94.
D. Testimonial Evidence
1. Carr’s Testimony
Carr was represented by counsel and testified at the administrative hearing. Tr. 40-63.
She testified that she lives in a house with her five-year old son. Tr. 44. At the time of her
hearing, she weighed about 208 pounds. Tr. 44. She had lost a lot of weight in the past year
because of vomiting and not eating for days and weeks at a time. Tr. 44-45. She usually
weighed about 230 pounds but it fluctuates depending on how sick she is. Tr. 45. She drives a
car and drove herself to the hearing; it took her a half hour. Tr. 45. She drives when she has to
go somewhere, like when her son has school. Tr. 45. She last drove “the other day” to take her
son to the doctor to get shots for school. Tr. 45.
Carr previously worked as a nurse’s aide at a nursing home. Tr. 47. She worked there
for just under three months and was fired because she kept calling off work. Tr. 47. When asked
why she believed that she could not work, Carr stated that she will have days where she is okay
for 3-4 days, but then she becomes symptomatic “and I’ll be down and be like useless for like a
week” and hopefully does not end up in the hospital. Tr. 49. Quite often she is not able to
control her symptoms with her medicine. Tr. 49. She described it as a constant game of chance
of how she’s going to feel and whether she will be able to do anything in the morning when she
wakes up. Tr. 49. The day of the hearing, her pain level was at a 5 out of 10 and her pain is all
day; it is rare that her stomach does not hurt or she does not feel nauseous. Tr. 50.
On a good day, Carr gets up, makes her son breakfast, and takes care of him. Tr. 51. On
a day that she is sick, “everything gets put on hold.” Tr. 51. She has to drive to pick up her
mother, who is not mobile, and bring her to Carr’s house to take care of Carr’s son. Tr. 51. She
“pretty much live[s] in the bathroom, sitting on the toilet with my head in a bucket probably for
the next good four or five hours.” Tr. 51. This happens about 2-3 times a month or every other
week. Tr. 51. Nothing triggers it, although she gets injections every other week, on Fridays, and
as it gets closer to that time it starts to get worse. Tr. 51. After she gets her injections, it takes a
while to kick in; she does not have instant relief. Tr. 59. Good days last for about five days
before she can feel the medication starting to wear off. Tr. 59.
When the ALJ asked whether she feels that her doctors are helping her, Carr responded
that she has been through a lot of them, and that, right now, “I wouldn’t say it’s under control,
but it’s I guess better than it’s been in the last few years. But it’s still definitely not under
control.” Tr. 54. She still considers that it is severe because she still has days constantly,
multiple times a month, where her condition flares up and she is vomiting all day and “pretty
much living in my bathroom.” Tr. 54. The last emergency room visit she had was about one
month prior. Tr. 55. She had to go to the emergency room because she could not keep anything
down; when that happens, there is nothing else that she can do and she has to go to the hospital.
Tr. 55. She takes medication for her Crohn’s, nausea, and stomach cramping. Tr. 55. Smoking
and drinking make it worse, and she does neither; she also does not do drugs like marijuana. Tr.
The day of the hearing, Carr stated that she was not having a good day. Tr. 56. She had
been “kind of” sick for the last couple of days and was lucky that she got to the hearing. Tr. 56.
Her attorney asked her whether, if she was having a “really bad day,” when she was having to go
to the bathroom and vomit, it would have been impossible for her to come to the hearing, and she
answered that it definitely would have been impossible. Tr. 56. The last time she was sick and
vomiting in the bathroom throughout the day was “probably Saturday.” Tr. 57.
Carr last had surgery in 2014, when a portion of her bowel was removed because it was
obstructed. Tr. 60. She feels better than she had before as a result. Tr. 60. But she does not
think her symptoms are even slightly better since then; they are still not under control. Tr. 60.
She relayed that her doctor told her that, by the time she is 40, she will probably have no more
intestine left because it is just eating away at itself and she will have to have a colostomy bag
“probably most likely, at the rate that it’s going.” Tr. 60. Some Crohn’s patients can manage
their symptoms but Carr’s are not manageable. Tr. 61. She has been on different kinds of
infusions, which did not work at all, and then they had to be stopped because she became allergic
to them. Tr. 61. Her current medication is doing okay but just slowing the Crohn’s down, it’s
not stopping it. Tr. 61. Her Crohn’s doesn’t go into remission. Tr. 61. When she feels like she
is about to have a flare up, she tries to take her Phenergan, if she can keep it down, and she also
avoids eating certain things like greasy foods. Tr. 62.
2. Vocational Expert’s Testimony
Vocational Expert Barbara Burke (“VE”) testified at the hearing. Tr. 64-68. The ALJ
discussed with the VE Carr’s past relevant work as a mental retardation aide. Tr. 65-66. The
ALJ asked the VE to determine whether a hypothetical individual with Carr’s age, education and
work experience could perform her past work if that person had the following characteristics: can
lift 20 pounds occasionally and 10 pounds frequently; can stand and/or walk about 6 hours in an
8-hour workday and sit for up to 6 hours in an 8-hour workday with normal breaks; can
occasionally climb ladders, ropes or scaffolds and climb ramps and stairs; can frequently
balance; and can occasionally stoop, crouch and crawl. Tr. 66. Tr. 66. The VE testified that
such a person could not perform Carr’s past work. Tr. 66. The ALJ asked the VE if there are
other jobs that the person could perform, and the VE testified that the person could perform jobs
as a housekeeping cleaner (140,000 national jobs), cashier (540,000 national jobs), and fast food
worker (1,180,000 national jobs). Tr. 66-67.
Next, the ALJ asked the VE if there would be jobs the hypothetical individual could
perform if that individual would need, in addition to normal work breaks, two to three bathroom
breaks per day lasting five minutes per break. Tr. 67. The VE responded that there would be no
jobs that such an individual could perform. Tr. 67. The ALJ asked if the VE’s answer would
change if the individual’s bathroom breaks lasted three minutes rather than five minutes, and the
VE replied that it would not. Tr. 67.
Carr’s attorney asked the VE whether the hypothetical individual described by the ALJ
could perform work if the additional bathroom breaks described were not needed every day, but
were needed two to three times per month, and the amount of time each break lasted would be
periodic and unpredictable, e.g., sometimes the break would last three minutes, sometimes ten
minutes, and sometimes there would be an extra seven or eight breaks per day. Tr. 67-68. The
VE answered that such an individual would not be able to sustain work on an ongoing basis. Tr.
III. Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in 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.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
If claimant is doing substantial gainful activity, he is not disabled.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, claimant is presumed disabled without further inquiry.
If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
20 C.F.R. §§ 404.1520, 416.920;1 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the vocational factors to
perform work available in the national economy. Id.
IV. The ALJ’s Decision
In her August 7, 2015, decision, the ALJ made the following findings:
The claimant meets the insured status requirements of the Social Security
Act through December 31, 2016. Tr. 21.
The claimant has not engaged in substantial gainful activity since September 1,
2013, the alleged onset date. Tr. 21.
The claimant has the following severe impairments:
Crohn’s/inflammatory bowel disease, status post 3 surgical resection
procedures, and obesity. Tr. 21.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 22.
The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
The claimant has the residual functional capacity to perform light work as
defined in 20 C.F.R. §404.1567(b) and 416.967(b), but she is limited to
the frequent performance of tasks requiring balance, and she can no more
than occasionally stoop, crouch, crawl, and/or climb ladders, ropes,
scaffolds, ramps and stairs. Tr. 22.
The claimant is unable to perform any past relevant work. Tr. 29.
The claimant was born on June 15, 1989 and was 24 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
date. Tr. 29.
The claimant has at least a high school education and is able to
communicate in English. Tr. 29.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not the
claimant has transferable job skills. Tr. 30.
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform. Tr. 30.
The claimant has not been under a disability, as defined in the Social
Security Act, from September 1, 2013, through the date of this decision.
V. Parties’ Arguments
Carr objects to the ALJ’s decision on two grounds. She asserts that the ALJ erred when
she failed to include the need for restroom breaks in her RFC assessment and when she
considered Carr’s credibility. Doc. 14, pp. 13-23. In response, the Commissioner submits that
the ALJ’s determinations with respect to Carr’s RFC and credibility are supported by substantial
evidence. Doc. 16, pp. 9-16.
Discussion of Carr’s argument pertaining to her restroom breaks necessitates discussion
of the ALJ’s assessment of Carr’s credibility. Thus, the Court considers both of Carr’s
VI. Law & Analysis
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679, 681
(6th Cir.1989) (per curiam) (citations omitted)). A court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984).
Carr argues that the ALJ failed to “validly articulate” why the need for restroom breaks
was left out of her RFC assessment. Doc. 14, p. 13. She states, “The need for additional
restroom breaks during the day is the crux of this case” because multiple places in the record
show that Carr complained of pain and excessive vomiting and diarrhea. Doc. 14, p. 14. She
asserts that the ALJ’s decision “does not address this issue at all.” Id.
Although it is correct to say that that ALJ did not specifically state why she was not
including a restriction for additional restroom breaks in her RFC assessment, it cannot be said
that the ALJ did not address the issue “at all.” As described below, the ALJ gave a detailed
account of the evidence and explained that she did not find Carr’s allegations describing the
extent of her limitations to be credible. In other words, the need for additional bathroom breaks
is based primarily on Carr’s subjective complaints, which the ALJ did not find convincing.
The ALJ spent a page detailing Carr’s testimony. Tr. 24. She concluded that Carr is “not
particularly limited on a ‘good day’ and that [her] ‘bad day’ symptoms are not as severe as she
asserts.” Tr. 24. Carr had testified that on “bad days” “everything stops” and she is unable to do
anything and is in the bathroom all day. Tr. 24. She also stated that, the day of the hearing, she
was not having a good day. Tr. 56. The ALJ accurately observed that, despite not having a good
day, Carr had driven herself to the hearing (30 minutes, without stating that she had to stop along
the way), sat during the 30-minute hearing, and appeared appropriately dressed, groomed and
composed. Tr. 24. Carr argues that the ALJ’s observation of her behavior at the hearing has
been characterized by the Sixth Circuit as the “sit and squirm” test and has been rejected. Doc.
14, p. 17 (citing Martin v. Sec’y of Health & Human Servs., 735 F.2d 1008, 1010 (6th Cir.
1984)). Martin is inapplicable because it concerns a situation where the ALJ rejected the
claimant’s complaints of pain solely on the basis of her own observations of the claimant at the
hearing. 735 F.2d at 1010. Here, the ALJ did not reject Carr’s complaints solely on the basis of
the ALJ’s observations at the hearing.
Specifically, the ALJ explained that, in September 2011, Carr lived in Ohio and had
exploratory surgery, saw gastroenterologist Dr. Shay, and was diagnosed with Crohn’s disease.
Tr. 25. Carr then moved to West Virginia, was on Remicade, and her symptoms were not severe.
Tr. 25. In early 2013, she had a retained endoscopy capsule that required surgery to resolve,
which she elected to put off until after she obtained her imminent STNA certification. Tr. 25.
Post-surgery, she denied complaints and her treating physician, Dr. Roberts, assessed her with no
work restrictions. Tr. 25. Carr moved back to Ohio, did not establish care, and was working as
an STNA. Tr. 25. In July 2013 she began a pattern of frequent emergency room visits,
underwent diagnostic testing that was mostly normal, and was repeatedly discharged on pain
medication. Tr. 25-26. She eventually did see a specialist, Dr. Schirack, who noted that Carr
had relatively minimal diagnostic findings and instructed Carr that patients with her type of
Crohn’s disease tend to require ongoing therapy. Tr. 26. Carr resumed her emergency room
visits and had inconsistent complaints (e.g., “moderate” pain rated as 10/10 and appearing in no
acute distress (Tr. 468, 462, 463)). Tr. 26. After further emergency room visits and the
acquisition of pain medication, she saw Dr. Schirack again. Tr. 26. Dr. Schirack noted that
Carr’s pain did not correlate with Crohn’s disease and that she reported being on morphine pain
patches while living in West Virginia; remarked that her updated imaging studies were negative;
and referred Carr to pain management to prevent further recurrent hospitalizations. Tr. 26-27.
Carr had three more hospitalizations, updated unremarkable imagings, and a positive drug screen
for cannabinoids. Tr. 27. Dr. Schirack documented his concern that Carr was exhibiting drug
seeking behavior and advised Carr to follow up with him and avoid the emergency room so that
she could maintain continuity of care. Tr. 27. Carr did not return to Dr. Schirack and instead
went back to the emergency room, stated that her gastroenterologist told her that her Crohn’s was
in remission, and asked for Dilaudid because morphine made her ill. Tr. 27. She reported that
her pain was a 10 but she had walked to the emergency room. Tr. 27. The next day she drove
herself to a different emergency room and received a morphine injection, without apparent
illness, as well as other pain medication. Tr. 28. A week later she was back in the emergency
room and was diagnosed with narcotic dependency; three days later she presented to a different
emergency room, and nine days after that, a third emergency room. Tr. 28. Eventually, she
started treating with Dr. Mir, who started her on Humira. Tr. 28. June 2014 found her again in
an emergency room with a staff concern for the use of high dose narcotics when GI evidence did
not warrant it. Tr. 28. Despite her monthly Percocet refills (120 pills) from Dr. Lazzerini, her
primary care physician, her drug screen was negative for opiates and she continued to receive
monthly Percocet refills from Dr. Lazzerini. Tr. 28, 1172, 1170, 1168, 1158, 1156, 1154. Carr
had resection and repair surgery in December 2014. Tr. 28-29.
The ALJ commented that no treating physician provided an opinion that Carr’s
impairment caused any work related limitations; in fact, Dr. Roberts had stated that she had no
limitations, Dr. Schirack declined to offer an opinion on the issue, and an emergency room
provider indicated that she could return to work a few days after discharge. Tr. 27, 29. The ALJ
relied upon the state agency reviewer’s opinion that Carr could perform light work. Tr. 29. In
sum, the ALJ explained why, in addition to Carr’s hearing testimony, she did not find Carr’s
allegations of pain and limitations credible: generally unremarkable exam and diagnostic
findings despite frequent emergency room visits; provider-observed drug seeking behavior with
inconsistent drug testing results; and non-compliance with treatment. See 20 C.F.R. §
404.1529(c) (ALJ considers objective medical evidence, medical opinions, treatment and
medication); SSR 96-7p, 1996 WL 374186, at *5, 7 (when assessing credibility, an ALJ
considers the consistency of the claimant’s own statements and treatment compliance).2
Carr argues that her condition “has required in excess of 30 ER and hospital visits with
primary symptoms of vomiting and diarrhea.” Doc. 14, p. 16. She also identifies areas in the
record where she had abnormal diagnostic imaging results. Doc. 14, p. 18. But the ALJ
acknowledged that Carr had Crohn’s disease, that she had had three surgeries, and that it was a
severe impairment. That the ALJ did not find Carr to be as limited by her Crohn’s as Carr
alleged does not mean that the ALJ erred. And Carr’s numerous hospital visits actually cut
Carr argues, “The ALJ makes all of Ms. Carr’s complaints look as if all she is engaging in is drug seeking
behavior.” Doc. 14, p. 19. The ALJ did not “make” it look like Carr was engaging in drug seeking behavior.
Rather, the ALJ detailed Carr’s longitudinal history and recited what Carr’s own providers had observed and
against Carr’s argument. As the ALJ observed, Carr’s treating gastroenterologists informed Carr
on multiple occasions that she needed to establish and maintain Crohn’s therapy and that
repeated visits to emergency rooms were counterproductive in establishing this continual care.
Tr. 27, 28. She did not receive Remicade or Humira injections for extended periods of time. Tr.
25, 28. She did not establish care with pain management, as she was advised to do on multiple
occasions by multiple providers. See, e.g., Tr. 356, 320, 1302. And her treating physicians
suspected that she was abusing emergency room services, given the number of times that she
visited, the different locations that she visited, her assessed condition upon arrival, her often
negative diagnostic findings, and the prescription pain medication that she had received from
multiple sources on a regular basis. Tr. 29, 890, 892, 1302, 328.
Lastly, Carr complains that the ALJ misstated evidence, made inappropriate comments
during the hearing, and highlighted, in her decision, irrelevant evidence in the record such as
Carr’s body piercings, tattoos, and sexual activity. Doc. 14, p. 19-20. The Court disagrees that
the ALJ misrepresented evidence or made inappropriate comments during the hearing. The
difference between the language found in treatment notes and the ALJ’s description of these
notes is not material.3 When read in full, the ALJ’s comments at the hearing were not
inappropriate. And, while the Court agrees that the ALJ did not need to recite treatment notes
detailing Carr’s piercings, tattoos and sexual activity, the inclusion of this evidence does not
For instance, Carr alleges that the ALJ misquoted an October 18, 2013, treatment note as stating that Carr had said
that she was “in the middle of switching doctors” and “had not had anything ... for her Crohn’s.” Doc. 14, p. 19
(citing Tr. 28). Carr asserts that the treatment note actually reads that Carr stated that she had “not had anything
right now for her Crohn’s.” Doc. 14, p. 19 (citing Tr. 962) (emphasis added). Carr contends that the ALJ’s
omission of the words “right now” “makes Ms. Carr look like she never took any medications for her Crohn’s where
the complete quote places the proper context.” Doc, 14, p. 19. This assertion is without basis. The ALJ discussed
the medication that Carr had taken in the past for her Crohn’s and accurately noted that Carr stopped treating with
Dr. Schirack in September 2013, had numerous emergency room visits, including three different emergency rooms
within 12 days, and then began treating with Dr. Mir, who started Carr on Humira for her Crohn’s disease in January
2014. Dr. Schirack’s office attempted to start Carr on Humira in September 2013, but Carr stopped seeing Dr.
Schirack at that time and, thus, did not start Humira until four months later. Therefore, it is accurate to say that Carr
was not taking medication for her Crohn’s in October 2013 when she stated to an emergency room provider that she
had not “had anything” for her Crohn’s.
undermine the ALJ’s decision, which is based on substantial evidence and is sufficiently
explained. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (A court
“defer[s] to an agency’s decision ‘even if there is substantial evidence in the record that would
have supported an opposite conclusion, so long as substantial evidence supports the conclusion
reached by the ALJ.’”).
For the reasons state above, the Commissioner’s decision is AFFIRMED.
Dated: June 28, 2017
Kathleen B. Burke
United States Magistrate Judge
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