Fernandes v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS: 1) The Commissioner's decision denying Plaintiff's application for Supplement Security Income (protectively filed on August 2, 2012) be affirmed; and 2) The case be terminated on the docket of this Court. Objections to R&R due by 8/7/2018. Signed by Magistrate Judge Sharon L. Ovington on 7-24-18. (mcm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MADINA FERNANDES,
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:17-cv-00277
:
: District Judge Thomas M. Rose
: Magistrate Judge Sharon L. Ovington
:
:
:
:
:
:

REPORT AND RECOMMENDATIONS 1
I.

Introduction
The Social Security Administration denied Plaintiff Madina Fernandes’ August 3,

2012 application for Supplemental Security Income. She brings the present case
challenging that denial. At issue is the decision by Administrative Law Judge (ALJ)
Elizabeth A. Motta, concluding that Plaintiff is not under a disability and, consequently,
not eligible to receive Supplemental Security Income. Plaintiff contends, in part, that
ALJ Motta failed to properly evaluate the opinions provided by her treating mental-health
professionals and the opinions of her gastroenterologist, David P. Romeo, M.D. The
Commissioner maintains that the ALJ properly evaluated the pertinent medical opinions
and that substantial evidence supports the ALJ’s decision.

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Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

II.

Background

A.

Plaintiff’s Vocational Profile and Testimony
Plaintiff was 35 years old on the date she filed her application for Supplemental

Security Income. Being under age 50, she is considered a younger person under Social
Security Regulations. 20 C.F.R. § 416.963(c). She has a high-school education and
attended college for 3 years. (Doc. #7, PageID #94). She has no past relevant work.
During an administrative hearing held by ALJ Motta, Plaintiff testified that she
is 5 feet 1 inches tall and weighs 190 pounds. She has a driver’s license but drives an
average of 2 times a week. She has difficult driving for more than 30 minutes because
her back pain becomes severe and her knees start locking up—“it just gets really
painful.” Id. at 103.
Plaintiff told the ALJ that her medical issues worsened over the years. Her health
problems include daily arthritis pain in her feet. She underwent knee surgery in 2011
after which she started noticing more issues with her joints. She has arthritis in her back,
hips, hands, and shoulders. She explained, “every day I’m in pain.” Id. at 96. Pain in
her hands, especially in her last 3 fingers, makes it very difficult to use her hands. For
example, she cannot count out paper money. Plaintiff also experiences “extreme
exhaustion” that causes her legs to “get heavy.” Id. at 98. She estimated that after she is
awake in the morning for 2-3 hours, she lies down due to pain and sleepiness (“I can
barely keep my eyes open ….”). And as the day goes on, her pain gets worse.
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Plaintiff also has issues with irritable bowel syndrome with daily diarrhea, 3 times
a day. In addition, she will feel the urge to use the bathroom 3 more times a day but after
she reaches the bathroom, she will not need to go. Id. at 105.
Plaintiff’s last job (in 2012) was part time. It ended, she noted, because “I was
having a lot of trouble with … needing breaks and I was ill a lot … and I wasn’t able to
come in to work all the time.” Id. at 103. She would call in sick about once a week, and
sometimes she would be late for work due to bathroom issues.
In 2012, Plaintiff was having issues with Crohn’s disease, knee problems
(requiring surgery), anxiety and panic attacks, and depression. Sometime medication
helps her mental health, but other times she “just feel[s] bad.” Id. at 100. She has
anxiety every day accompanied by shaking and heart palpitations. She testified, “I get
really nervous around people. I get kind of panicky if there’s too many people around.
And then sometimes like with my depression just all I want to do is sleep. I don’t
generally bathe myself when that happens. So I don’t really take care of myself as well
as I should. And, generally, the only time I eat is when my boyfriend makes me
something to eat.” Id. at 107.
Plaintiff stated that she can sit comfortably for about 30 minutes before she starts
getting pain in her hips, knees, and back. She can stand comfortably for about 20
minutes before her back, hips, and knees begin to hurt. She can lift and carry 5 pounds.
Id. at 108.
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Plaintiff does not cook or prepare meals; her boyfriend takes care of it. Since
2012, she has not done yardwork or gardening. Sometimes she tries to wash a couple of
dishes. Her boyfriend vacuums and dusts. She does her own laundry once a week and
puts her clothes away. She generally does not go to the store; her boyfriend does most of
the shopping. She does not go outside her home on a regular basis. She has difficulty
dressing herself and must sit on a stool when she showers. She does not use a computer
or read books, unlike when she was taking college classes. She eats only once a day
because she can’t bring herself “to even care enough to eat.” Id. at 102.
B.

Medical Evidence
Plaintiff underwent left knee arthroscopic surgery in December 2011 after which

she participated in physical therapy. Plaintiff went to the emergency room in May 2012
feeling severe “sharp and crampy” abdominal pain with vomiting and diarrhea. Id. at
621. She was admitted with an acute appendicitis and underwent surgery. Id. at 624-29.
Five days later, she was released from the hospital in stable condition. Id. at 630.
December 2012 treatment notes from treating gastroenterologist David P. Romeo,
M.D., indicate that he had not seen Plaintiff in over a year. He noted that Plaintiff had
lost her health-insurance coverage in May or June 2012. Id. at 616. Although she had
been asymptomatic on medication, by late July 2012, her symptoms were recurring. Dr.
Romeo reported that Plaintiff was experiencing a Crohn’s disease flare. She had
abdominal pain, cramping, and “upwards of eight to 10 stools per day including nocturnal
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episodes.” Id. He also noted that there “may be bleeding,” and Plaintiff had vomited “on
occasion.” Id. She was understandably “miserable and is tearful over the situation.” Id.
Dr. Romeo diagnosed Crohn’s disease and placed her back on immunosuppressant
therapy. Id. at 617. A month later she was doing quite well, although she’d experienced
an acute illness with abdominal discomfort and diarrhea. This resolved after a few days.
Id. at 618.
Plaintiff went to the emergency room on early March 2013 with abdominal pain
and diarrhea. She reported that she had stopped taking her steroid medications a week
before. A physician diagnosed her with Crohn’s disease and treated her with medication.
She was discharged with Percocet for pain control, Zofran for nausea, and Prednisone for
Crohn’s exacerbation. Id. at 639-51.
Plaintiff followed up with Dr. Romeo in mid-April. He diagnosed her with
Crohn’s disease in endoscopic remission and prescribed Bentyl. He noted that she had
experienced diarrhea 3 to 4 times per day on 8 of the previous 21 days, but on other days
she was constipated. Id. at 664. She was also experiencing nausea, bloating, and
intermittent abdominal cramping but no ongoing abdominal pain. Id.
In May 2013, Dr. Romeo noted that Dicyclomine was helping with her abdominal
cramping, but “she still has considerable diarrhea.” Id. at 661. Dr. Romeo reported no
evidence of active Crohn’s disease, and thought Plaintiff’s diarrhea may be caused by
another problem, perhaps irritable bowel syndrome. Id. at 662.
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In July 2013, Dr. Romeo diagnosed Plaintiff with a history of Crohn’s disease,
which was currently stable on medication. She was, however, experiencing “frequent
diarrhea, controlled with Imodium, which will then lead to constipation.” Id. at 658. She
was also experiencing nausea and cramping, for which Dr. Romeo prescribed
medications. Id. Plaintiff acknowledges, “Subsequent treatment notes indicate that the
medication was helping [her] symptoms.” (Doc. #9, PageID #1299 (citing, as examples,
PageID #s 740-748, 834-840, 1042)).
In September 2013, Dr. Romeo completed a form assessing Plaintiff’s work
abilities. Id. at 681-85. He checked-marked responses indicating that she had no
restrictions on the amount of weight she could carry or on how long she could stand,
walk, or sit in and workday. She could, according to Dr. Romeo, frequently climb,
crouch, balance, kneel, stoop, and crawl. He also indicated that Plaintiff could perform
light or sedentary work (as the form defined such work). Id. at 684-85. But, Dr. Romeo
tempered his opinion about Plaintiff’s work abilities. He advised, “[She] at times may
need to use the restroom at a moment[’s] notice or may need to use the restroom
frequently—this may occur during any activity.” Id. at 684. Dr. Romeo also answered
written interrogatories stating that he had treated Plaintiff’s for Crohn’s disease for 9
years. His answers illustrate his belief that her level of functioning deteriorated when she
experienced a flare of Crohn’s disease, including symptoms of extreme abdominal pain,
nausea, and vomiting. He opined, for example, that “as long as she is not having a
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Crohn’s flare,” she could be prompt and regular in work attendance, respond
appropriately to supervision, sustain attention and concentration to meet normal workproductivity standards, behave in an emotionally stable manner, respond appropriately to
changes in a routine work setting, and accept instructions and respond appropriately to
criticism from supervisors. Id. at 688-94. When asked more about Plaintiff’s ability to
withstand work pressure, Dr. Romeo explained, “During a Crohn’s flare she might have
extreme pain (abd [abdominal]), nausea & vomiting—could impair her from completing
her work.” Id. at 689.
A treatment note from Sarah Khavari, M.D. in April 2015 reveals that Plaintiff
reported experiencing “nonstop diarrhea” since the end of January. Id. at 1092. She
could hardly eat because after she ate, she would have diarrhea. Id. Plaintiff felt
“exhausted” and “physically broken down.” Id. She was “always tired” and was having
a hard time concentrating due to a constant “foggy” feeling in her head. Id.
In January 2016, rheumatologist Thomas W. Henderson, M.D., examined Plaintiff
and observed diffuse tenderness in the “small joints of [her] hands as before” (apparently
referring to similar results in December 2016). Id. at 1049. He diagnosed arthropathy.
Id
In March 2016, Dr. Romeo noted that Plaintiff continued to have cramping,
intermittent nausea, and diarrhea. Id. at 1265.
In addition, to Plaintiff’s physical health problems and treatments, she has suffered
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problems with depression, anxiety, and panic attacks. Her mental health treatment
records document that, at one time or another, she reported experiencing past abuse and
feeling fear, anxiety, panic attacks, paranoia, difficulty breathing, agitation, anger,
irritability, depression, tearfulness, withdrawal and disconnection from loved ones, loss
of interest in former hobbies and activities, poor sleep, nightmares, fatigue, obsessive
compulsive behavior, decreased self-esteem, hopelessness, helplessness, crying spells,
and becoming easily overwhelmed. Id. at 695-726, 756-94, 955-90, 1052-79.
In October 2013, Plaintiff’s treating psychiatrist Dr. Vishnupad and treating
therapist Nicole Jackson provided joint responses to a Mental Impairment Questionnaire.
Id. at 727-30. They diagnosed Plaintiff with Major Depressive Disorder, recurrent, and
Panic Disorder. They check-marked responses identifying Plaintiff’s signs and
symptoms as poor memory; appetite disturbance with weight change; sleep disturbance;
mood disturbances; emotional lability; recurrent panic attacks; anhedonia or pervasive
loss of interests; psychomotor agitation or retardation; paranoia or inappropriate
suspiciousness; feelings of guilt/worthlessness; difficulty thinking or concentrating;
suicidal ideation or attempts; social withdrawal or isolation; illogical thinking or
loosening of associations; decreased energy; obsessive or compulsions; intrusive
recollections of a traumatic experience; persistent irrational fears; and generalized
persistent anxiety. Id. at 727. They also itemized clinical findings including depression,
sleep and appetite disturbance, low energy, memory problems, rumination, impaired
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focus and concentration, panic attacks, racing thoughts, heart palpitations, difficulty
breathing, intense fear, chills, sweats, clammy hands, and paranoia. Id. at 728.
Dr. Vishnupad and Ms. Jackson also found Plaintiff slightly to moderately limited
in some areas of work-related functioning and markedly or extremely limited in several
others. Id. at 29. They thought that she would be absent from work more than three
times per month due to her impairments or treatment. Id. at 729-30.
III.

“Disability” Defined and The ALJ’s Decision
Plaintiff’s eligibility to receive Supplemental Security Income hinged on whether

he was under a “disability” as defined by social security law. See 42 U.S.C. § 1381a; see
also Bowen v. City of New York, 476 U.S. 467, 470 (1986). Narrowed to its statutory
definition, a person is “considered to be disabled … if he [or she] is unable to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which … can be expected to last for a continuous period of not less
than twelve months.” 42 U.S.C. §1382c(a)(3)(A).
As noted previously, it fell to ALJ Motta to evaluate the evidence connected to
Plaintiff’s application for benefits. She did so by considering each of the five sequential
steps set forth in the Social Security Regulations. See 20 C.F.R. § 416.920. Her more
significant findings began with her conclusion that Plaintiff had severe impairments—
irritable bowel syndrome with history of ulcerative colitis, history of arthroscopic surgery

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on her left knee, depressive disorder, and anxiety disorder—but her impairments did not
constitute a disability under the Listings, 20 C.F.R. Part 404, Subpart P, Appendix 1.
ALJ Motta next found that the most Plaintiff could do despite her impairments
(her residual functional capacity, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002)) was less than the full range of light work. She listed Plaintiff’s many
limitations as including, for example, “[Plaintiff] does not have to be replaced by another
worker before going to the restroom; [she] can be off task as much as five percent of the
workday for additional bathroom breaks….” (Doc. #7, PageID #72). Some of Plaintiff’s
remaining limitations limit her to low-stress work “with no strict production quotas or
fast pace and only work with a few changes in the work setting and only occasional
contact with the public as part of job duties.” Id.
In light of her findings, ALJ Motta determined that Plaintiff could perform a
significant number of jobs available in the national economy. Id. at 79-80. This wrapped
up her sequential evaluation and led her to ultimately conclude that Plaintiff was not
under a disability and not eligible for Supplemental Security Income.
IV.

Standard of Review
The Social Security Administration’s denial of Plaintiff’s application for

benefits—embodied in ALJ Motta’s decision—is subject to judicial review along two
lines: whether he applied the correct legal standards and whether substantial evidence
supports his findings. Blakley v. Comm’r of Social Sec., 581 F.3d 399, 405 (6th Cir.
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2009); see Bowen v. Comm’r of Social Sec., 478 F3d 742, 745-46 (6th Cir. 2007).
Reviewing the ALJ’s legal criteria for correctness may result in reversal even if the
record contains substantial evidence supporting the ALJ’s factual findings. Rabbers v.
Comm’r of Social Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746.
Substantial-evidence review does not ask whether the Court agrees or disagrees with the
ALJ’s factual findings or whether the administrative record contains evidence contrary to
those factual findings. Rogers v. Comm’r of Social Sec., 486 F.3d 234, 241 (6th Cir.
2007); see Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Instead,
substantial evidence supports the ALJ’s factual findings when a “‘reasonable mind might
accept the relevant evidence as adequate to support a conclusion.’” Blakley, 581 F.3d at
406 (quoting Warner v. Comm’r of Social Sec., 375 F.3d 387, 390 (6th Cir. 2004)).
Substantial evidence consists of “more than a scintilla of evidence but less than a
preponderance...” Rogers, 486 F.3d at 241.
V.

Discussion
Plaintiff contends that the ALJ erred by not properly evaluating the opinions

provided by Dr. Vishnupad and Ms. Jackson. She maintains that the ALJ improperly
substituted her own interpretation of Plaintiff’s mental-health records in place of the
opinions provided by Dr. Vishnupad and Ms. Jackson. She further objects to the ALJ’s
decision to credit state-agency reviewers’ opinions even though they did not review a
complete record. And, she argues that the ALJ’s reliance on the alleged lack of objective
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signs and findings is not an adequate basis for rejecting treating-source opinions.
Social Security Regulations require ALJs to adhere to certain standards when
weighing medical opinions. “Key among these is that greater deference is generally
given to the opinions of treating physicians than to those of non-treating physicians,
commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations
omitted). The rule is straightforward:
Treating-source opinions must be given “controlling weight”
if two conditions are met: (1) the opinion “is well-supported
by medically acceptable clinical and laboratory diagnostic
techniques”; and (2) the opinion “is not inconsistent with the
other substantial evidence in [the] case record.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20
C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723.
If the treating medical source’s opinion is not controlling, “the ALJ, in
determining how much weight is appropriate, must consider a host of factors, including
the length, frequency, nature, and extent of the treatment relationship; the supportability
and consistency of the physician’s conclusions; the specialization of the physician; and
any other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d 541, 544
(6th Cir. 2004)); Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting, in part, 20
C.F.R. § 404.1527(d)(2)).
The ALJ placed little weight on Ms. Jackson’s opinions due to the absence of
“objective signs and findings in the record.” (Doc. #6, PageID #78). The ALJ observed
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that counseling records from Mental Health Services Clark County concerning Plaintiff’s
treatment “primarily reflect [her] subjective complaints and contain few objective mental
status findings. Dr. Vishnupad’s records generally show only a depressed and anxious
mood, and many other mental status examinations were generally within normal limit.
These findings are adequately accounted for by the limitations … for low stress work
with occasional public contact.” Id. The ALJ also found that the record supports only
mild to moderate impairment in Plaintiff’s social functioning. As a result, she limited
Plaintiff to occasional public contact, with no limitations in the ability to interact with
coworkers or supervisors.” Id.
Substantial evidence supports the ALJ’s assessment of the opinions provided by
Ms. Jackson and Dr. Vishnupad. Although they listed Plaintiff’s symptoms, see Doc. #7,
PageID #728, Plaintiff’s treatment records with Ms. Jackson and Dr. Vishnupad fail to
contain information that reasonably supports their unexplained conclusions about
Plaintiff’s work limitations and work absences. Instead, Ms. Jackson’s treatment notes
repeatedly document Plaintiff’s reported symptoms without providing meaningful insight
into the level of symptom severity Ms. Jackson observed. The most supportive
information she provided appears in her indication whether Plaintiff’s mood was either
“remarkable” or “unremarkable” at each counseling session. These records, however, are
minimally helpful to Plaintiff. When she began counseling with Ms. Jackson, she
indicated that Plaintiff’s mood was remarkable, noting she was anxious/depressed (on
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April 17, 2013) and depressed (on April 22, 2013). After those initial sessions, Ms.
Jackson frequently observed that Plaintiff’s mood, affect, and thought process were
unremarkable with only occasional references to anxious or depressed moods. See id. at
697-09. Additionally, the last treatment note Ms. Jackson wrote a month before
providing her opinions (in November 2013) observed that Plaintiff’s mood was
remarkable, anxious, but her affect and thought process were unremarkable. These brief
and conclusory mention of depression and anxiety, along with Ms. Jackson’s notes
concerning Plaintiff’s self-reported symptoms, provided a reasonable basis for the ALJ to
place little weight on Ms. Jackson and Dr. Vishnupad’s opinions. See 20 C.F.R.
§4`16.927(c) (“The more a medical source presents relevant evidence to support an
opinion, particularly medical signs…, the more weight we will give that opinion. The
better an explanation a source provides for an opinion, the more weight we will give that
opinion.”).
Plaintiff next contends that the ALJ failed to properly evaluate her gastroenterologist’s, Dr. Romeo’s, opinions by providing a conclusory analysis that fails to
adequately consider the longitudinal record of Plaintiff’s gastrointestinal symptoms.
The ALJ viewed Dr. Romeo’s treatment records as support for her assessment of
Plaintiff’s ability to perform a reduced range of light work. The ALJ explained:
The limitations … for a reduced range of light work take into account
the claimant’s ulcerative colitis, also known as Crohn’s disease,
which appears to be under generally good control. Treatment records
from [Dr.] Romeo, the claimant’s gastroenterologist, confirm the
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presence of this condition, with only an early diagnosis of Crohn’s
disease and nothing active. These notes also document only
occasional episodes of symptoms, such as diarrhea and abdominal
pain. A colonoscopy in 2013 revealed no active disease. In addition,
those records confirm that the claimant’s symptoms have been
generally controlled with medication with minimal complaints and
few flares of active symptoms reported (Exhibits B3F, B4F, B10F
B14F, and B20F).
(Doc. #7, PageID #74). The ALJ also found that the episodic nature of Plaintiff’s
gastrointestinal condition limits her to “light, indoor work with no temperature extremes
and work that allows her to be off task up to 5% of the workday for additional restroom
breaks, with no need to be replaced by another worker for these restroom breaks.” Id. at
75.
As to Dr. Romeo’s opinions, the ALJ gave “deferential weight” to Dr. Romeo’s
opinion that Plaintiff could work as long as she was not having a Crohn’s flare. The ALJ
found, however, “the record documents no such flare-ups since…” the date she filed her
application for benefits (August 3, 2012). Id. at 78. The ALJ repeated that Dr. Romeo’s
treatment notes “document no significant Crohn’s flares and … do not confirm the
frequency or severity of diarrhea or restroom breaks testified to by [Plaintiff].” Id. The
ALJ described Dr. Romeo’s records as indicating that Plaintiff’s gastrointestinal
condition had been “under relatively good control with only intermittent symptoms.
(Exhibits 24F, B29F, B34F). This again convinced the ALJ that Plaintiff was limited to
work allowing her to be off task 5% of the workday for restroom breaks.
Substantial evidence supports the ALJ’s evaluation of Dr. Romeo’s opinions and
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treatment records. The evidence of record reveals that Plaintiff never had a continuous
12-month period of multiple daily episodes of diarrhea, an essential element of
establishing a benefits-qualifying disability. See 20 C.F.R. § 416.905 (in order to prove
disability, a claimant must prove she had disabling limitation(s) for at least a continuous
12 months) (emphasis added). As the ALJ indicated, Dr. Romeo’s own progress notes
concerning Plaintiff depict her GI symptoms as generally well-controlled, with only
occasional breakthrough symptoms. Indeed, in January 2012—7 months before Plaintiff
filed her application for Supplemental Security Income—Plaintiff saw Dr. Romeo for a
re-assessment of her Crohn’s disease. He observed that she was “doing quite well,” and
that her abdominal pain and diarrhea had resolved after a short bout, lasting a few days,
of symptoms. (Doc. #7, PageID #619). Dr. Romeo assessed her Crohn’s disease to be
“in remission.” Id. Three months before filing for Supplemental Security Income (in
May 2012), Plaintiff presented to her local hospital’s emergency room with right-lowerquadrant abdominal pain due to acute appendicitis (not Crohn’s), which required the
emergency removal of her appendix.
In December 2012, Plaintiff returned to see Dr. Romeo, after not seeing him for
almost a year. Id. at 616. Dr. Romeo noted that she had been asymptomatic on her
medication regimen. Id. But, by late July 2012, her symptoms were recurring
(abdominal pain/cramping as well as up to eight or 10 stools per day). Id. He noted that
she had not lost any weight, a fact reasonably suggesting that her recurrent Crohn’s
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symptoms had been in control with medication. Dr. Romeo likely realized that
something new or additional was happening with Plaintiff, changed her medication
regimen. Id. at 617.
One month later, Plaintiff reported good results after Dr. Romero had started her
on Prednisone at her last visit. Yet, she also reported a flare of symptoms when tapering
down of the medication. Even so, under her new medication regimen, she was down to
several loose stools per day, generally with some form to them. Id. at 670. Symptoms
occurring several times a day is reasonably in line with the ALJ’s conclusion that
Plaintiff could perform work allowing restroom breaks 5% of the workday (which
calculates to 24 minutes). At this office visit, moreover, Dr. Romeo assessed Plaintiff as
“doing fairly well,” and increased her Prednisone dosage. Id. at 672.
In early March 2013, Plaintiff returned to the emergency room due to complaints
of abdominal pain and multiple bowel movements. She acknowledged that her
gastrointestinal symptoms had been under control until she stopped her medications a
week earlier. Id. at 639. She was discharged from the emergency room with a
prescription for Prednisone. Id. at 644. A few days later in March 2013, Plaintiff saw
Dr. Romeo and reported that she was “doing better” and “feeling better” after resuming
Prednisone. Id. at 667. In April 2013 Plaintiff reported that during 8 of the last 21 days,
she had diarrhea 3 to 4 times per day, and the other days she had been constipated with
small hard stools. Id. at 664. A recent colonoscopy was negative. Dr. Romeo diagnosed
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Plaintiff with “Crohn’s disease in endoscopic remission. She has some variable
abdominal complaints but I do not think these are related to inflammatory bowel
disease.” Id. at 666.
By May 2013, Plaintiff reported that a new medication helped with her abdominal
cramping, but not with her diarrhea, which occurred 2 or 3 times most days. Id. at 661.
Dr. Romeo noted that Plaintiff had taken Imodium in the past and it had helped with her
diarrhea, but she had not taken much of it recently. Dr. Romeo explained his diagnostic
impression: “Crohn’s disease. We have not been able to document activity recently. Her
recent diarrhea may be from another problem such as irritable bowel syndrome….” Id. at
662. Dr. Romeo instructed Plaintiff to take Imodium twice daily for diarrhea, and that
she could titrate it up or down. Id. at 663.
By July 2013, Dr. Romeo noted that Plaintiff was “doing much better than in the
distant past.” Id. at 658. She reported that her frequent diarrhea was “controlled by
Imodium” but this would lead to constipation. Id. She reported nausea and cramping but
indicated that Bentyl helped with her cramping. Dr. Romeo advised her to continue
taking Imodium and Bentyl, and he prescribed a new medication for her complaints of
nausea. Id. at 658, 660.
One month after Dr. Romeo provided his October 2013 opinions about Plaintiff’s
ability to work, he noted during her office visit that after placing her on Amitriptyline at
her last appointment, the Amitriptyline had “worked extremely well.” Id. at 746. She no
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longer had any abdominal pain, her diarrhea had resolved, and she no longer had nausea
as before. Plaintiff was “very pleased” with the results. Id. Dr. Romeo made virtually
the same findings on her later-occurring office visits—for example, she was “doing very
well” and had no complaints in February, May, and August 2014. Id. at 740, 743, 838.
A while later, in November 2014, Plaintiff returned to see Dr. Romeo. She
reported that she had done well until the previous week. Id. at 834. She reported variable
bowels habits—sometimes she passed small, hard marble-like stools, but later in the day
she might have diarrhea. The night before, she had some lower-abdominal discomfort
that she had not experienced for some time. She also told Dr. Romeo that she still had
some discomfort in the morning, but it was much improved. And, she reported that she
was under severe stress and wondered if this could be playing a role in her symptoms. Id.
Dr. Romeo ordered testing and provided her with medication refills. He believed
Plaintiff’s symptoms were due to her irritable bowel syndrome, possibly exacerbated by
stress. Id. at 836.
Plaintiff did not see Dr. Romeo again for over a year. Id. at 1042. She saw him in
December 2015, and he again documented that she was “doing well,” and that while she
had a little bit of alternating constipation and diarrhea, she had not had much in the way
of symptoms overall since her last visit. He also noted that she had not had any recent
nausea or vomiting and no significant abdominal pain. Id.
Plaintiff’s last office visit documented in the record occurred in March 2016. She
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reported cramping, intermittent nausea, and soft to loose stools but no diarrhea. She also
reported that the last time she had vomited was several weeks before. Dr. Romeo noted
that her CBC and chemistry panel at her last visit were unremarkable, and reiterated that,
in the past year, restaging with a colonoscopy showed no evidence of active Crohn's
disease. Id. at 1265. He advised Plaintiff to take Bentyl for cramping, as he had in the
past. Id. at 1266-67. Dr. Romeo advised Plaintiff to follow up in three months or sooner,
but the record reasonably suggests that she did not again see Dr. Romeo before the ALJ’s
July 2016 decision.
In light of the aforementioned record evidence, the ALJ reasonably gave little
weight to any interpretation of Dr. Romeo’s opinion that Plaintiff was unable to work
when having Crohn’s flares or that she otherwise needed significant restroom breaks
above 5% of the workday. Contrary to Plaintiff’s contention that the medications Dr.
Romeo prescribed her made her drowsy, the record fails to show such reports to Dr.
Romeo, and his opinions did not identify drowsiness as a limiting factor for Plaintiff.
See id. at 681-85.
As such, the aforementioned evidence shows that the ALJ’s RFC limitations that
allow Plaintiff to be off task for 5% of the workday for restroom breaks, without the need
to be replaced by another worker for such breaks, adequately accounts for her symptoms
from Crohn’s disease, or her gastrointestinal condition of well-controlled irritable bowel
syndrome, with only occasional flares.
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Accordingly, Plaintiff’s Statement of Errors lacks merit.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s decision denying Plaintiff’s application for
Supplement Security Income (protectively filed on August 2, 2012) be
affirmed; and

2.

The case be terminated on the docket of this Court.

July 24, 2018

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to SEVENTEEN days because this Report is being served by one
of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs. A party may respond to another
party’s objections within FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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