Harper v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS re 3 Complaint filed by April Lynn Harper. It is RECOMMENDED that the Court REVERSE the Commissioner of Social Securitys non-disability finding and REMAND this case to the Commissioner and ALJ underSentence Four of § 405(g) for further consideration consistent with the Report and Recommendation. Objections to R&R due by 8/18/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on August 4, 2017. (jlk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
APRIL LYNN HARPER,
Plaintiff,
Case No. 2:16-cv-690
JUDGE MICHAEL H. WATSON
Chief Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, April Lynn Harper, brings this action under 42 U.S.C. § 405(g) for review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying her application
for social security disability insurance benefits. This matter is before the United States
Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No.
11) (“SOE”), the Commissioner’s Memorandum in Opposition (ECF No. 16) (“Opposition”),
Plaintiff’s Reply (ECF No. 19) (“Reply”), and the administrative record (ECF No. 8). For the
reasons that follow, it is RECOMMENDED that the Court REVERSE the Commissioner of
Social Security’s non-disability finding and REMAND this case to the Commissioner and
Administrative Law Judge (“ALJ”) under Sentence Four of § 405(g) for further consideration
consistent with this Report and Recommendation.
I.

BACKGROUND

Plaintiff filed her application for benefits on December 3, 2012, alleging that she has
been disabled since January 26, 2011, due to interstitial cystitis, depression, broken right wrist,
fibromyalgia/inflammation throughout the body, bleeding from the bladder, acid reflux, and high

blood pressure. (R. at 216–21, 240.) Plaintiff’s application was denied initially and upon
reconsideration. (R. at 132–40, 142–48). Plaintiff sought a de novo hearing before an
administrative law judge. Administrative Law Judge Patricia Witkowski Supergan (“ALJ”) held
a hearing on December 4, 2014, at which Plaintiff, who was represented by counsel, appeared
and testified. (R. at 70–103.) On January 29, 2015, the ALJ issued a decision finding that
Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 50–64.) On May
17, 2016, the Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s
decision as the Commissioner’s final decision. (R. at 1–4.) Plaintiff then timely commenced the
instant action.
II.
A.

HEARING TESTIMONY1

Plaintiff’s Testimony
Plaintiff testified at the administrative hearing on December 4, 2014, that she last worked

as a lunch lady in 2011 and stopped working because she kept calling off due to stomach pain.
(R. at 74–75.) Plaintiff testified that she is five foot, two inches tall, and weighs 205 pounds. (R.
at 75.) At the time of the administrative hearing, Plaintiff had been married for twenty-seven
years. (Id.) She has one child, a son, who is twenty-two years old and who no longer lives at
home. (Id.)
Plaintiff and her unemployed husband share cleaning responsibilities, while he does most
of the grocery shopping and Plaintiff does most of the cooking. (R. at 76.)
Plaintiff has an unrestricted driver’s license, but her husband usually does the driving.
(Id.) Plaintiff testified that she does not like to drive. (R. at 88.) Plaintiff has not taken any trips

1

The Court limits its analysis of the evidence and the administrative decision to the issues raised
in the SOE, i.e., that the ALJ failed to properly consider Plaintiff’s impairment of interstitial
cystitis under SSR 02-2p and that the ALJ’s credibility determination was deficient.
2

or vacations in the last few years, but she and her husband do visit their son approximately once
a month in Barberton, Ohio, which is approximately two hours from her house. (R. at 76–77.)
These visits consist of one-day trips. (R. at 77.) Plaintiff spends Thanksgiving with her sisterin-law, who lives across the road from where Plaintiff lives. (Id.) Plaintiff denied ever getting
together with friends, keeping in touch with friends, or belonging to any clubs or social groups.
(Id.) She does not ever go out to the movies or to lunch or dinner with anyone. (R. at 84.)
Plaintiff has a cell phone and has no problem using it and sending text messages to her
mother. (R. at 77.) She also uses Facebook on her phone every day. (R. at 79.) Plaintiff does
not use a computer. (R. at 78.)
Plaintiff smokes a pack of cigarettes a day and uses marijuana a couple of times a month.
(R. at 78–79.) She last used marijuana the day before hearing. (R. at 79.) Plaintiff last drank
one glass of wine at her son’s wedding a few months before the hearing and has never used
cocaine, meth, or heroin. (Id.)
In the twenty-four hours before the hearing, Plaintiff had taken her prescribed
medications as well as aspirin “a little bit ago.” (R. at 80.) She takes medications for
cholesterol, high blood pressure, depression, and headaches. (Id.) Dr. Roth, who knows about
her marijuana use, prescribed her antidepressants and she sees him every couple of months. (R.
at 80–81.) Plaintiff also goes to counseling once or twice a week. (R. at 81.)
Plaintiff testified that the day before the hearing she ate leftovers for lunch and dinner,
which came from a meal that she had cooked earlier. (R. at 82–83.)
When asked if she has any animals that she might take care of, Plaintiff testified that she
has two dogs. (R. at 83.) Her husband takes them to the veterinarian. (Id.)
The day before the hearing, Plaintiff went to the doctor and watched movies. (Id.)

3

Plaintiff testified that when she coughs or sneezes, she wets herself, but she does not
wear protective undergarments. (R. at 81.) When asked whether she has any problems with her
interstitial cystitis, Plaintiff testified that when she becomes nervous or stressed out, “it really
hurts.” (R. at 85.) Plaintiff also explained that it hurts to wear pants because of the “tightness”
and “pressure on” her stomach. (R. at 85–86.) Plaintiff testified that she goes to the bathroom
twenty to thirty times a day. (R. at 86.)
Plaintiff has experienced headaches since she was a teenager. (R. at 86.) Plaintiff’s
doctor recently prescribed Topamax, which has helped her headaches. (Id.) She still gets
headaches every day, but there are not as severe. (Id.) When she does have a bad headache,
however, it can prevent her from doing household chores or personal care at least once a week
even if she is taking Topamax. (R. at 86–87.) On days that she has a bad headache, she lies
down with the lights off and keeps everything quiet. (R. at 87.) Plaintiff testified that her doctor
recently increased her Topamax prescription to 100 milligrams twice a day. (Id.)
B.

Vocational Expert Testimony
Amy Mowry testified as a vocational expert (“VE”) at the December 4, 2014,

administrative hearing. (R. at 97–102.) The VE classified Plaintiff’s past relevant work as
follows: lunch person (which is classified as a child nutrition aide), a light, semi-skilled
position; cashier, a light, semi-skilled position; and store laborer, a medium, unskilled position.
(R. at 98–99.)2 The ALJ proposed a hypothetical question regarding an individual with
Plaintiff’s age, education, past employment, and the residual functional capacity (“RFC”) she
ultimately assessed for Plaintiff. (R. at 99–100.) The VE testified that the hypothetical
individual could perform the following work: “cleaner housekeeping,” with 20,000 jobs in the
2

According to the VE, Plaintiff describes her work as a lunch person at the medium exertional
level and her work as a store laborer at the heavy exertional level. (Id.)
4

state economy and 377,000 jobs in the national economy; “cashier 2,” with 48,000 jobs in the
state economy and one million jobs in the national economy; and hand packager, with 7,700 in
the state economy and 129,000 in the national economy. (Id.)
The ALJ next proposed the same hypothetical individual, but limited the individual to
work at the sedentary level of exertion. (R. at 100.) The VE testified that the hypothetical
individual could perform the following work: preparer, with 3,700 jobs in the state economy and
98,000 jobs in the national economy; final assembler, with 1,200 jobs in the state economy and
28,000 jobs in the national economy, and server, with 1,600 jobs in the state economy and
23,400 in the national economy. (Id.)
The VE went on to testify that one absence or less per month would be tolerated in a
competitive work environment. (R. at 100–01.) According to the VE, there are typically two
fifteen-minute breaks and one thirty-minute break in a competitive work environment. (R. at
101.) The VE denied that there would be competitive work for someone who was off task
twenty-five percent of a work day, explaining that employer tolerances were up to fifteen percent
off task in an eight-hour day. (Id.)
On cross-examination, Plaintiff’s counsel asked whether employers would accept if an
individual required more breaks to utilize the restroom at least once an hour, which is in addition
to the breaks generally tolerated. (Id.) The VE testified “[r]outinely exceeding the normal
breaks would result in a behavioral issue, and eventually, they will be terminated after three
occurrences.” (Id.) Plaintiff’s counsel next asked if unskilled employers would tolerate an
individual who, at the end of the training period, is not able to independently perform the job
task with at least more than occasional interaction with a supervisor or questioning a supervisor.

5

(R. at 102.) The VE testified that that would be a behavior issue, and after approximately three
occurrences, typically, the employee would be terminated. (Id.)
C.

Medical Expert Testimony
Ashok Jilhewar, M.D., testified as an independent medical expert at the December 4,

2014, administrative hearing. (R. at 88–97.) Dr. Jilhewar testified that Plaintiff’s medically
determinable impairments from January 26, 2011, to December 31, 2013, included interstitial
cystitis, with supra pubic pain and with symptoms of mixed incontinence; stress incontinence;
moderate to extreme obesity; and Colle’s fracture of the right wrist (resolved). (R. at 89–92.)
Dr. Jilhewar also testified that although Plaintiff had been prescribed Topamax, which is
prescribed to prevent migraine attacks, he did not see any specific descriptions of Plaintiff
suffering from such acute migraine attacks or any hospitalizations with headaches. (R. at 92.)
Dr. Jilhewar testified that Plaintiff suffered from hypertension and had been prescribed
medications to treat this condition. (R. at 92–93.) According to Dr. Jilhewar, Plaintiff had been
diagnosed with enthesopathy and had been prescribed differing doses of Prednisone, but did not
have any further follow-up. (R. at 93.) While fibromyalgia was mentioned in Plaintiff’s
application, Dr. Jilhewar did not find any diagnostic information or treatment of fibromyalgia or
treating exam documenting tender points. (Id.) X-rays of both shoulders and a left angle were
normal, but x-rays of hips revealed mild demyelination. (Id.)
According to Dr. Jilhewar, none of these impairments met or equaled any listings. (R. at
94.) However, Dr. Jilhewar went on to testify that “[t]he listing I would considered was 11.203
regarding the interstitial cystitis. It is a chronic pain syndrome. The disease is also known as
bladder pain syndrome, and the most consistent listing are chronic pain.” (Id.)

6

Dr. Jilhewar offered two opinions as to Plaintiff’s RFC, depending on whether the ALJ
considered Plaintiff’s pain as significant in the absence of intensity of management of pain in the
medical record. (Id.) If her pain is significant, Plaintiff is limited to sedentary work, but if the
pain is not significant, then she is limited to light work. (Id.) Dr. Jilhewar testified that Plaintiff
did not need an assistive device to ambulate and that her lifting/carrying capacity limits her
pushing/pulling capacity. (R. at 94–95.) According to Dr. Jilhewar, Plaintiff can never climb
ladders, ropes, or scaffolds because of moderate to extreme obesity. (R. at 95.) He did not have
any specific clinical findings to limit the use of her upper extremities and there was no
information to believe that visual function, hearing function, communication, or environmental
limitations were necessary. (Id.)
Upon cross-examination, Plaintiff’s counsel asked whether it would be probable that
someone like Plaintiff with a history of interstitial cystitis may have continued frequency of
urination with time. (R. at 96.) Dr. Jilhewar testified as follows:
If you use the wor[d] may or approximate, the answer is definitely yes, and I was
looking for medical record documentation of the frequency and/or urination in the
night, and I do not have any in the medical record. That doesn’t mean Claimant
doesn’t have it. I just don’t have the document.
(Id.) When Plaintiff’s counsel asked whether there is objective finding for Plaintiff’s complaints
of frequency even though there’s no documentation or frequency in the record, Dr. Jilhewar
responded as follows: “I can explain the frequency. Whether the Claimant has the frequency or
not, I do not know the answer at present.” (R. at 96–97.)
III.
A.

MEDICAL RECORDS

Medical Records Prior to Alleged Onset Date
Prior to her alleged onset date of January 26, 2011, Plaintiff’s medical records reflect a

history of bladder and abdominal problems, including cystoscopy operations for hematuria and
7

left renal pelvis (R. at 438–61), a vaginal sling operation for stress urinary incontinence on May
6, 2008 (R. at 423–34), and emergency room treatment for chronic abdominal pain, left flank
pain, back pain, and kidney stones (R. at 397–408, 464–508). On June 7, 2010, Plaintiff was
diagnosed with interstitial cystitis with urgency and frequent urination, and pelvic pain, and
underwent a cystoscopy. (R. at 390–94, 557). On July 26, 2010, Plaintiff reported improvement
through medications and modification of her diet. (R. at 552.)
B.

Christopher D. Rooney, M.D.
In February 2011, Christopher D. Rooney, M.D., reported that Plaintiff suffered from

chronic interstitial cystitis. (R. at 549–51.) He ordered modification of her diet and weekly
bladder instillation treatment. (Id.)
C.

Emergency Room Records
In September 2011, Plaintiff presented for emergency treatment at Southeastern Ohio

Regional Medical Center for a urinary tract infection with resultant lip discoloration, shaking,
shortness of breath, constipation, slight dysuria, elevated temperature, nausea, vomiting,
headache, and photophobia. (R. at 563–65.)
In July 2013, Plaintiff presented at Selby General Hospital for emergency treatment of a
urinary tract infection and resultant fever, nausea, and body aches. (R. at 633–38.)
D.

Joseph P. Burick, D.O.
On January 10, 2012, Plaintiff presented to Joseph P. Burick, D.O., complaining of fever,

dizziness, and vomiting. (R. at 573.) Plaintiff denied any dysuria urgency or frequency. (Id.)
Dr. Burick assessed her with acute sinusitis and prescribed medication. (R. at 574.)
In December 2012, Dr. Burick saw Plaintiff for frequent headaches and sought a letter
from Dr. Burick regarding her request for Social Security disability benefits relating to her

8

interstitial cystitis. (R. at 341–43.) Dr. Burick reported that Plaintiff had stopped taking most of
her medications because she cannot afford them. (R. at 341.) Dr. Burick noted that Plaintiff
presented an isolated incident of high blood pressure and prescribed hydrochlorothiazide. (R. at
342.) Dr. Burick reported that Plaintiff “stated she needed a note that she was unable to work
she did not bring any other material” so Dr. Burick was unsure he could simply say that Plaintiff
was unable to work. (Id.)
D.

Tony Starr, D.O.
On July 1, 2014, Plaintiff presented to Tony Starr, D.O., complaining of daily headaches,

leg swelling, and pain throughout her body. (R. at 599–601.) Dr. Starr noted interstitial cystitis
and reported that Plaintiff smoked a pack of cigarettes a day. (R. at 599.) Upon examination of
her abdomen, Dr. Starr reported positive bowel sounds, no bruits, soft and nondistended with no
tenderness or masses. (R. at 600.) Dr. Starr assessed Plaintiff with a headache, benign
hypertension, a depressive disorder, and espophageal reflux. (Id.) He prescribed medications,
including Topamax, and a follow-up examination in three weeks. (Id.)
On July 23, 2014, Plaintiff presented to Dr. Starr for her follow-up examination. (R. at
602–04.) Plaintiff reported moderately severe daily headaches and left hip and thigh pain. (R. at
602.) Upon examination, Dr. Starr noted that Plaintiff’s mobility was unchanged and that she
walked with a normal gait for her age. (R. at 602–03.) Plaintiff’s abdomen continued to have
positive bowel sounds, no bruits, soft, nontender, and nondistended with no palpable abdominal
masses, aneurysms, or hernias present. (R. at 603.) In addition to his prior assessments, Dr.
Starr assessed Plaintiff with enthesopathy of hip region. (Id.) Dr. Starr prescribed medications,
including an increased Topamax prescription, and ordered that she follow up in three months.
(R. at 603–04.)

9

On October 23, 2014, Dr. Starr examined Plaintiff for her three-month follow-up visit.
(R. at 653–55.) Dr. Starr reported that Plaintiff’s hypertension has been well controlled and that
she is taking medication as prescribed. (R. at 653.) Upon examination, Dr. Starr noted that
Plaintiff appeared healthy and well developed, that her mobility was unchanged, that she had a
normal gait and posture. (R. at 654.) Dr. Starr further noted that Plaintiff’s abdomen was again
soft, nontender, nondistended with positive bowel sounds and no palpable masses, aneurysms, or
hernias. (Id.)
E.

State-Agency Evaluations
On February 28, 2013, state-agency physician Jeffrey Vasiloff, M.D., reviewed the

record and assessed Plaintiff’s physical functioning capacity. (R. at 104–15.) Dr. Vasiloff
opined that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds
frequently; stand and/or walk about six hours in a workday; and sit for about six hours in a
workday. (R. at 111.) According to Dr. Vasiloff, Plaintiff could frequently climb ramps/stairs,
kneel or crawl; never climb ladders, ropes, or scaffolds; balance for an unlimited period; and
frequently stoop, kneel, crouch, and crawl. (R. at 111–12.) Dr. Vasiloff found Plaintiff partially
credible, explaining that that the severity of her allegations is not consistent with the totality of
the evidence. (R. at 110.)
Leanne M. Bertani, M.D., reviewed Plaintiff’s records upon reconsideration on April 29,
2013, and agreed with Dr. Vasiloff’s assessment. (R. at 117–27.)
IV.

ADMINISTRATIVE DECISION

On January 29, 2015, the ALJ issued her decision. (R. at 50–64.) The ALJ found that
Plaintiff last met the insured status requirements of the Social Security Act on December 31,

10

2013. (R. at 52.) At step one of the sequential evaluation process,3 the ALJ found that Plaintiff
had not engaged in substantially gainful activity during the period from her alleged onset date of
January 26, 2011, through her date last insured of December 31, 2013. (R. at 52.)
At step two, the ALJ determined that through the date last insured, Plaintiff had the
severe impairments of interstitial cystitis, obesity, and headaches. (Id.)
At step three, the ALJ next found that through Plaintiff’s date last insured, she did not
have an impairment or combination of impairments that met or medically equaled one of the
listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 57–58.) In
connection with the finding, the ALJ explained why Plaintiff’s interstitial cystitis did not meet or
medically equal a listing:
With regard to the claimant’s interstitial cystitis, there is no listing which
specifically addresses interstitial cystitis. However, pursuant to SSR 02-2p,
interstitial cystitis will meet the requirements of a listing if the claimant has
another impairment that, by itself, meets the requirements of a listing. In
addition, the claimant meets a listing if there is an impairment that, in
combination with interstitial cystitis, meets the requirements of a listing. In this
case, independent medical expert, Dr. Ashok Jilhewar, concluded at the hearing
3

Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1.
2.
3.

4.
5.

Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant’s residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
11

that a review of the medical records in the file did not support a finding that the
claimant meets or medically equals a listing. Based on a review of the record as a
whole, the undersigned finds that the claimant has not provided objective medical
evidence of an impairment that by itself or in combination with interstitial cystitis
meets or medically equals a listing.
(R. at 57.)
At step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional capacity to
perform light work as define in 20 CFR 404.1567(b) except she could frequently
climb ramps and stairs, but never ladders, ropes or scaffolds; frequently balance
and stoop, but never kneel, crouch, or crawl; tolerate occasional exposure to and
work around extreme cold and heat, hazards such as moving machinery or
unprotected heights; and she was limited to the performance of unskilled work
tasks that can be learned by demonstration or in 30 days or less, and that are of a
simple, repetitive and routine nature.
(R. at 58.)
In assessing the foregoing RFC, the ALJ assigned “significant weight” to Dr. Jilhewar’s
opinion that Plaintiff should be limited to light work with additional postural restrictions if the
ALJ found Plaintiff’s pain less significant. (R. at 61.) The ALJ explained that
the evidence and Dr. Jilhewar’s evidentiary analysis and thorough testimony
support a finding that the claimant can perform light work. Additionally, Dr.
Jilhewar had the opportunity to review all of the evidence in the record, and he
has an understanding of social security disability programs and the evidentiary
requirement, which are both factors lending credibility to Dr. Jilhewar’s opinion.
(R. at 61.) However, the ALJ assigned “little weight” to Dr. Jilhewar’s opinion that Plaintiff
does not require environmental limitations because it did not appear that Dr. Jilhewar accounted
for Plaintiff’s subjective complaints of hot flashes, headaches, or other effects of Plaintiff’s
obesity. (Id.) The ALJ therefore limited Plaintiff to “occasional exposure to extreme cold and
heat, workplace hazards such as moving machinery or unprotected heights, and unskilled work
tasks that are of a simple, repetitive and routine nature.” (Id.)

12

The ALJ next assigned the opinions of the state agency consultants, Drs. Bertani and
Vasiloff, “significant weight” to “the extent they are consistent” the ALJ’s articulated RFC. (Id.)
The ALJ explained that she accorded significant weight to these doctors’ opinions in this regard
because “their assessments are consistent with the overall evidence in the record, and” because
they are “highly qualified physicians who are experts in the Social Security disability programs
and its rules as well as in the evaluation of medical issues in disability claims under the Act.”
(R. at 61–62.) Nevertheless, the ALJ went on to assign “little weight” to these doctors’ opinions
to the extent they recommend no environmental limitations and frequent exposure to crouching,
kneeling, crawling, and unlimited balancing. (R. at 62.) The ALJ explained that Drs. Bertani
and Vasiloff “did not appropriately consider the full extent of limitations that the claimant’s
condition pose, in particular her obesity and headaches[,]” justifying the greater environmental
and postural limitations contained in the ALJ’s articulated RFC. (Id.)
The ALJ also found Plaintiff’s testimony regarding the extent of her symptoms and
limitations to be not fully credible. (R. at 59.) The ALJ then offered a detailed discussion of the
objective medical evidence in the record, including a discussion of physical examination
findings, gaps in treatment, and Plaintiff’s noncompliance with her medication regimen. (R. at
59–60.) The ALJ also considered Plaintiff’s ability to perform daily activities, which the ALJ
concluded undermined Plaintiff’s claim of disability, “especially in light of her testimony of
severe incontinence.” (R. at 60.)
Relying on the VEs’ testimony, the ALJ concluded that Plaintiff cannot perform past
relevant work as a child nutritionist/food-management aide or cashier checker. (R. at 62.)
However, the ALJ went on to find that Plaintiff can perform other jobs existing in significant

13

numbers in the national economy. (R. at 63–64.) She therefore concluded that Plaintiff was not
disabled under the Social Security Act. (R. at 64.)
V.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is
defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the SSA fails to follow its own regulations and
where that error prejudices a claimant on the merits or deprives the claimant of a substantial

14

right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
VI.

ANALYSIS

Plaintiff advances two contentions of error. The Court finds Plaintiff’s first assignment
of error—that the ALJ failed to properly consider Plaintiff’s impairment of interstitial cystitis
under SSR 02-2p4—to be meritorious.5
SSR 02-2p explains that there is no listing for interstitial cystitis. SSR 02-2p, ¶ 8, 2002
WL 32063799 (Nov. 5, 2002). Interstitial cystitis, “when accompanied by appropriate
symptoms, signs, and laboratory findings, is a medically determinable impairment that can be the
basis for a finding of ‘disability.’” Id. at Introduction. Like fibromyalgia, interstitial cystitis
affects mostly women and its symptoms may vary:
IC is a complex, chronic bladder disorder characterized by urinary frequency,
urinary urgency, and pelvic pain. IC occurs most frequently in women (about 10
times more often than in men), and sometimes prior to age 18. IC may be
associated with other disorders, such as fibromyalgia, chronic fatigue syndrome,
allergies, irritable bowel syndrome, inflammatory bowel disease, endometriosis,
and vulvodynia (vulvar/vaginal pain). IC also may be associated with systemic
lupus erythematosus.
The symptoms of IC may vary in incidence, duration, and severity.
Id. at ¶ 1. SSR 02-2p instructs that interstitial cystitis may be a consideration in both the “meets”
and “equals” determinations at step three of the sequential evaluation and that interstitial cystitis

4

Plaintiff notes that SSR 02-2p was rescinded six weeks after the ALJ’s decision and was
replaced with SSR 15-1p. (SOE at 10.) Plaintiff explains that the SSRs are not significantly
different and will confine her arguments to SSR 02-2p. (Id.) Because the Commissioner’s
arguments are likewise limited to SSR 02-2p (Opposition at 5 n.5), the Court will do the same.
5
Because this finding obviates the need for analysis of Plaintiff’s remaining assignment of error
as to Plaintiff’s credibility, the Undersigned need not, and does not resolve whether this
alternative base supports reversal and remand. Nevertheless, on remand, the ALJ may consider
Plaintiff’s remaining assignment of error if appropriate. Cox v. Comm’r of Soc. Sec., No. 2:13cv-1203, 2015 WL 1000648, at *3 n.1 (S.D. Ohio Mar. 5, 2015).
15

may also, by itself, be “medically equivalent to a listed impairment[.]” Id. at ¶ 8.
Here, after summarizing Plaintiff’s medical records, Dr. Jilhewar answered whether any
of Plaintiff’s impairments met or equaled any listings or whether he considered any listings:
I cannot consider any specific listing because of the lack of durational
requirement on interstitial cystitis absent some medical record documentation or
presence of fibromyalgia, absence of intractable headaches, migraines or
otherwise in the medical records. The listing I would considered [sic] was 11.203
regarding the interstitial cystitis. It is a chronic pain syndrome. The disease is
also known as bladder pain syndrome, and the most consistent listing are chronic
pain.
(R. at 94.)
At step three, the ALJ acknowledged SSR 02-2p and noted that there was no listing that
specifically addressed interstitial cystitis. (R. at 57.) The ALJ went on to find that Plaintiff’s
interstitial cystitis did not meet or medically equal a listing:
In this case, independent medical expert, Dr. Ashok Jilhewar, concluded at the
hearing that a review of the medical records in the file did not support a finding
that the claimant meets or medically equals a listing. Based on a review of the
record as a whole, the undersigned finds that the claimant has not provided
objective medical evidence of an impairment that by itself or in combination with
interstitial cystitis meets or medically equals a listing.
(Id.)
Plaintiff contends that the ALJ erred in her analysis at step three because, inter alia, Dr.
Jilhewar referred to a listing, “11.203,” which does not exist, arguing that “it is unclear what
listing he was referencing and why.” (SOE at 12.) The Commissioner “acknowledges that the
medical expert’s testimony was unclear and contained a mistake regarding the listings[,]” but
insists that substantial evidence supports the ALJ’s finding. (Opposition at 6–12.)
The Commissioner’s assertion is unavailing. The ALJ’s decision “must fairly set out the
legal framework for the disability determination and support that determination with substantial
evidence.” Chavis v. Astrue, No. 2:11-cv-00917, 2012 WL 5306130, at *2 (S.D. Ohio Oct. 26,
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2012). Here, it is undisputed that Dr. Jilhewar referred to a listing that does not exist and that his
testimony was unclear. The ALJ relied on this testimony when finding that Plaintiff had not
provided “objective medical evidence of an impairment that by itself or in combination with
interstitial cystitis meets or medically equals a listing.” (R. at 57.) Although the ALJ also stated
that her finding at step three was “[b]ased on a review of the record as a whole,” (id.) the
Undersigned cannot conclude that substantial evidence supports her finding because she failed to
follow the proper standards when she relied on Dr. Jilhewar’s flawed testimony. See Collins v.
Comm’r of Soc. Sec., No. 1:13cv756, 2014 WL 5308582, at *6 (S.D. Ohio Oct. 16, 2014) (“As
with fibromyalgia, the diagnosis of ‘severe’ IC [interstitial cystitis] is not always disabling. The
difficulty in this case is that Dr. Fischer, the ME [medical expert] upon whom the ALJ so heavily
relied, does not appear to have considered or even to have been familiar with the detailed
guidance offered by SSR 02–2p. That failure requires remand.”).
The Commissioner attempts to distinguish Collins, arguing that, in this case, Plaintiff’s
counsel did not alert the ALJ to SSR 02-2p, that the ALJ still referred to SSR 02-2p before
discussing Dr. Jilhewar’s testimony, and denying that the ALJ relied heavily on Dr. Jilhewar’s
testimony. (Opposition at 6.) The Commissioner’s arguments are not well taken. It is
undisputed that Dr. Jilhewar’s testimony was unclear. While the Commissioner contends that
the ALJ referred to SSR 02-2p, that fact does not distinguish this case from Collins: In both
cases, the medical experts did “not appear to have considered or even to have been familiar with
the detailed guidance offered by SSR 02-2p.” Collins, 2014 WL 5308582, at *6. The ALJ’s
reliance on Dr. Jilhewar’s flawed testimony requires remand. Id.
Moreover, to the extent the Commissioner suggests that substantial evidence exists to
support the ALJ’s decision regarding interstitial cystitis even though the ALJ did not specifically

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identify such evidence at step three, that assertion is not well taken. The Undersigned must
evaluate the ALJ’s express findings and must not conduct a de novo review of her decision. See
Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 468, 2006 WL 2472910, at *6 (6th Cir. 2006)
(“This court may not review the case de novo, resolve conflicts in the evidence, or decide
questions of credibility.” (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)); Steel v.
Comm’r of Soc. Sec., No. 09–11658, 2010 WL 3037983, at *1 (E.D. Mich. July 30, 2010) (“A
district court’s review of an ALJ’s decision is not de novo review.”). While it may be that
Plaintiff’s interstitial cystitis does not meet or equal a listing, the Undersigned is not a medical
expert and cannot conclude that substantial evidence supports the ALJ’s actual finding at step
three when it was based on flawed medical expert testimony.
In sum, it is RECOMMENDED that Plaintiff’s first contention of error be
SUSTAINED.
VII.

CONCLUSION

Due to the errors outlined above, Plaintiff is entitled to an order remanding this case to
the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g).
Accordingly, it is RECOMMENDED that the Court REVERSE the Commissioner of Social
Security’s non-disability finding and REMAND this case to the Commissioner and ALJ under
Sentence Four of § 405(g) for further consideration consistent with this Report and
Recommendation.
VIII.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in

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question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

Date: August 4, 2017

s/ Elizabeth A. Preston Deavers _______
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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