Kirk v. Commissioner of Social Security

Filing 14

DECISION AND ENTRY- IT IS THEREFORE ORDERED THAT: 1. The Commissioners non-disability finding is vacated; 2. No finding is made as to whether Plaintiff Heather Kirk was under a disability within the meaning of the Social Security Act; 3. This matter is REMANDED to the Social Security Administration under sentence four of 42 U.S.C. § 405(g) for payment of benefits based on the application Plaintiff protectively filed on March 4, 2015; and 4. The case is terminated on the Courts docket. Signed by Magistrate Judge Sharon L. Ovington on 2/6/2020. (kma)

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

: Case No. 3:18-cv-00186
:
:
: Magistrate Judge Sharon L. Ovington
:
(by full consent of the parties)
:
:
:
:
:

DECISION AND ENTRY
I.
Plaintiff Heather M. Kirk has tried to convince the Social Security Administration
that she was under a disability and therefore eligible to receive Disability Insurance
Benefits. She has not been successful. This is most prominently seen in Administrative
Law Judge (ALJ) Elizabeth A. Motta’s determination that Plaintiff could still work
despite her health problems and that she could perform many jobs that exist in the
national economy. These conclusions dictated the final determination that Plaintiff was
not under a disability and not eligible to receive Disability Insurance Benefits.
Plaintiff contends that a remand of this case for payment of benefits is warranted
due to the ALJ’s errors in evaluating (1) her symptoms, and (2) the opinion evidence.
Finding no such errors, the Commissioner asks the Court to affirm the ALJ Motta’s nondisability decision.

II.
Plaintiff’s ability to work is influenced—like it is for everyone—by her age,
education, and work experience. She was 35 years old on her alleged disability onset
date (again, January 28, 2015); she has at least a high-school education; and in the past
she worked as a medical biller, a medical-records clerk, and a preschool teacher.
A.

Plaintiff’s Health Problems
Plaintiff she has bladder problems and other symptoms related to interstitial

cystitis. “Interstitial cystitis … is a condition that causes discomfort or pain in the
bladder and a need to urinate frequently or urgently. It is far more common in women
that in men. The symptoms vary from person to person. Some people have pain without
urgency or frequency. Others have urgency and frequency without pain….”
https://medlineplus.gov/interstitialcystitis.html
Plaintiff testified during a hearing before ALJ Motta that her bladder problems—
which by then she had endured for about sixteen years—caused her to use the restroom
anywhere from five minutes to sixty minutes each day. Her need to use the restroom
every five minutes could happen daily—“It’s just very sporadic,” she said. Id. She
describes her pain as “debilitating at times.” (Doc. #6, PageID #83). When she has
bladder spasms, she feels pain in her pelvis, bladder, and lower back. Id. at 90. She
explains, “I cannot get off the couch and even get a glass of water or raise my head or just
do anything. It comes with side effects, of course, so I’ve dealt with IBS [Irritable Bowel
Syndrome]—which when you’re out in public that comes on it’s pretty scary.” Id. at 83.
Her IBS symptoms include abdominal cramping, constipation with diarrhea, and nausea.
2

Plaintiff’s bladder-related pain can flare up, and these flare-ups can last from a day to a
month. Id. at 90. At the time of the ALJ’s hearing, she was experiencing these pain
flare-ups about once every week. Id.
Plaintiff had surgery for interstitial cystitis approximately three years before the
ALJ’s hearing in March 2014—approximately ten months before her asserted disability
onset date. Plaintiff testified that the surgery involved stretching her bladder. It did not
help alleviate her symptoms. She takes medication to treat interstitial cystitis, but it does
not help. She wears an adult diaper. At some point, she also underwent a total
hysterectomy and is consequently on hormone therapy.
Plaintiff has experienced anxiety for many years. She treats it with medication.
Many years (about fifteen) before the ALJ’s hearing she received professional mentalhealth treatment. The level of her anxiety “is very high.” Id. at 87. She told ALJ Motta,
“I’m scared to go anywhere, not knowing where the restrooms are. I’m scared that
people will look at me if I go to the restroom more than once in five minutes.” Id.
Plaintiff has panic attacks and extreme agitation. She has difficulty concentrating. She
tries “at all costs” not to go out in public. Id. at 89.
Plaintiff worked for Amerimed Inc. from 2012 to 2014. Id. at 189-90. When this
job was eliminated, her employer asked her to stay and work in customer service on the
phones and “waiting on patients when they come in.” Id. at 81. She concluded that she
could not do this job. She testified, “I declined because I—just using the restroom as
much as I do I could not do that, so I just went ahead and left ….” Id. She then took a
job in billing in a pulmonologist’s office. Id. at 81. But she left this job in January 2015
3

because “[t]he stress and the work load was unbelievable and also I would get stuck on
the phone with insurance companies for up to three hours on hold.” Id. This made it
very difficult for her to get up and walk away. Id.
Plaintiff does some household chores: laundry, cooking, light cleaning. She
explained, however, that her ability to do these things is limited:
I do not do them on a day to day basis and I take frequent restroom breaks
when I’m cooking. Sometimes I have to sit down and rest. When I’m folding
laundry I can do that at my own pace, sitting on the couch, watching TV.
Sometimes I even have to stop while I’m doing laundry and take a nap.
Id. at 88.
Plaintiff has fatigue that she thinks is related to her bladder problem. She also
does not sleep very well. She usually wakes up four to five times a night to use the
restroom. And she believes that some of her medications cause insomnia. Id.
Plaintiff goes to the store when her husband can go with her. Id. She does not go
anywhere on a regular basis. She does not do any work in the yard or garden. She uses
an iPad to play games. She watches a lot of television. Id. at 85.
Plaintiff does not read books, magazines, or newspapers. She does not help her
children with homework. She goes to her daughter’s soccer games but is not able to
attend all the games because of her bladder problem. Id. at 87. She tries to visit her
mother once a week. She does not go out with friends.
B.

Medical Evidence
The parties have described or referred to the medical evidence in detail, as did the

ALJ. Consequently, there is no need to repeat their descriptions but a few highlights will

4

be helpful.
In November 2013, Plaintiff saw gynecologist William Rush, M.D. for a
consultation concerning her interstitial cystitis and related symptoms. Plaintiff asked Dr.
Rush for a second opinion. She explained that treatment with multiple medications had
not worked. She “gets blurred vision and vertigo.” Id. at 576; see id. at 577. She
reported severe urinary frequency—every 5-20 minutes during the daytime; 3-4 times per
night. Id. Upon examination, Dr. Rush noted, “abdomen is soft without significant
tenderness, masses, organolegaly or guarding.” Id. at 577. He had a lengthy discussion
with Plaintiff and her husband about her symptoms, findings, and options. Dr. Rush
reviewed all the treatments Plaintiff had had and presented two treatment options:
“PMFT vs hydrodistention vs InterStim.” Id.
In March 2014, Plaintiff underwent a cystoscopy with hydrodistention owing to
her “symptomatic pelvic pain, low bladder volume with bladder spasms and suspected
interstitial cystitis, failed conservative treatment.” Id. at 522. During the procedure, it
was observed:
On entry, the bladder appeared to be on smaller side, but a pale normalappearing dome with squamous metaplasia of the entire trigone and the
urethra. It was distended at 80 cm of water to 425 ml. At this point, the flow
was stopped and the patient had some spasms forcing the urine output. We
drained the bladder, noting blood-tinged urine coming out. On
reexamination, no active bleeding but Hunner’s ulcerations noted throughout
the entire dome and trigone. This was very consistent with interstitial
cystitis/painful bladder syndrome….

5

Id. at 523 (emphasis added). 1
While Plaintiff initially did well after surgery, id. at 556, her improvement was
short-lived. She told a physician that she had been under stress due to a death in the
family and her symptoms had worsened with stress. Id. at 565.
In mid-2014, she agreed to undergo a trial period using InterStim PNE. 2 Id. at
562-63. Gynecologist William J. Rush, MD surgically implanted an InterStim and the
trial went well. In September 2014, Plaintiff said she was very pleased and reported an
85% reduction in urinary urge incontinence and frequency. Id. at 557. She strongly
desired longer-term InterStim placement.
Dr. Rush surgically implanted a more permanent InterStim in early October 2014.
Two weeks later Plaintiff told Dr. Rush that it was not working as well as it had during
the trial period. Id. at 556. Dr. Rush performed revision surgery involving the InterStim
in November 2014. Id. at 663-64.

1

The Interstitial Cystitis Association sheds some light on Hunner’s ulcers:
“Hunner’s ulcers”…, are a subtype of interstitial cystitis (also called IC) and are not ulcers
in the usual sense. They are distinctive areas of inflammation on the bladder wall that
characterize the “classic” form of IC. Hunner’s ulcers are the one diagnostic feature that
clinches the IC diagnosis, but this “classic” form of IC affects only about 5 to 10 percent
of patients. Often, patients with this form of IC have more severe symptoms than patients
with nonulcerative IC.

https://www.ichelp.org/about-ic/symptoms-of-ic/hunners-ulcers/
2

InterStim Peripheral Nerve Evaluation (PNE) “is indicated for the treatment of overactive bladder,
including urinary urgency and frequency …. The device will provide mild pulses of energy to the nerves
that control the bladder as you return to your normal activities. Over the course of the test period, if you
show an improvement in symptoms of 50% or greater, you may be a candidate for long-term treatment
with InterStim therapy.” http://specializedwomenshealth.com/education/interstim-peripheral-nerveevaluation-pne/
6

Yet by January 2015, the InterStim was not helping Plaintiff’s urinary symptoms.
Id. at 553-54. In treatment records, Dr. Rush noted that he had a “lengthy” discussion
with Plaintiff “regarding symptoms, findings and options.” Id. at 554. He then decided
upon a course of action: “Will try 3 different [InterStim] programs and see how [patient]
does along with impedance [obstruction] check.” Id. And he assessed Plaintiff as having
urge incontinence, nocturia, and urinary frequency. Id.
The adjustments to Plaintiff’s InterStim did not relieve her symptoms. This
remained true through her asserted disability onset date of January 28, 2015. In February
2015, Dr. Rush assessed her with urge incontinence, urinary frequency, and “pelvic pain
in female.” Id. at 551. His examination revealed, “abdomen is soft without significant
tenderness, masses, organomegaly, 3 or guarding. Extremities are normal.” Id. Dr. Rush
had another lengthy discussion with Plaintiff about symptoms, findings and options. Id.
at 551. She continued to report urinary incontinence and pelvic pain during February and
March 2015. Id. at 546-52. Dr. Rush continued to treat Plaintiff’s interstitial colitis
through at least September 2016. Id. at 700-13.
In May 2015, state-agency physician Teresita Cruz, M.D. examined the
administrative record in May 2015. She opined that Plaintiff could occasionally lift
twenty pounds, frequently lift ten pounds, stand and/or walk for a total of about six hours
in an eight-hour workday, and sit for about six hours in an eight-hour workday. Id. at
109. Dr. Cruz reported that these limitations were due to Plaintiff’s interstitial cystitis

3

Organomegaly refers to the “enlargement of visceral organs.” Taber’s Cyclopedic Medical Dictionary,
p. 1456 (19th Ed. 2001).
7

and her resulting “urge incontinence, pelvic pain, and nocturia.” Id. Dr. Cruz noted that
Plaintiff says she has leaking urine with exertion, such as bending. According to Dr.
Cruz, Plaintiff had an unlimited ability to climb ramps and stairs, and to kneel and crawl.
Id. at 109-10. She could never climb ropes, ladders, or scaffolds, and she could
frequently stoop and occasionally crouch. Id. at 110. Dr. Cruz briefly explained that
Plaintiff had these limitations due to “stress incontinence.” Id.
In July 2014, Plaintiff’s treating physician Kendall J. Erdahl, MD reported that
Plaintiff was under his care for interstitial cystitis; she needs to use the restroom every 15
to 60 minutes; she has 1 to 5 doctor appointments per month; and “[s]he gets chronic
ulcers in her bladder that are painful, which interrupt her sleep causing fatigue.” Id. at
619. Dr. Erdahl then expressed his opinion about Plaintiff’s disability status, “In my
professional opinion, Heather cannot function in a competitive workplace and have
gainful employment.” Id.
In August 2015, Timothy Budnik, D.O. examined the administrative record for the
state agency. He formed the same opinions as Dr. Cruz concerning Plaintiff’s ability to
perform a limited range of light work. He noted, “Interstitial cystitis. Has urge
incontinence, pelvic pain, nocturia. [Plaintiff] reports leaking urine with exertion, such as
bending. Has GERD and gets heartburn if she misses doses of her meds. GERD is well
controlled. Has IBS, endoscopy shows mild gastritis, mild esophagitis, and slight
esophageal stricture. No evidence of malnourishment.” Id. at 127. Dr. Budnik agreed
with Dr. Cruz about Plaintiff’s postural limitations. Id.
In March 2017, Plaintiff’s treating physician Kendall J. Erdahl, MD completed a
8

questionnaire. He reported that he began treating Plaintiff in September 2008 and had
treated her continuously ever since. He diagnosed Plaintiff with interstitial cystitis with
severe abdominal/bladder pain, fatigue, and frequent painful urination. He believed that
these symptoms would frequently interfere with Plaintiff’s ability to concentrate. He also
thought that Plaintiff could sit for 30 minutes before needing to stand; could stand/walk
for 20 minutes at a time before needing to sit; sit a total of 4 hours in an 8-hour workday;
and, stand/walk a total of 2 hours in an 8-hour workday. Plaintiff would need to work a
job that enabled her to shift positions at will from sitting, standing, or walking.
Plaintiff would need to take unscheduled restroom breaks, according to Dr. Erdahl.
During flare-ups, she would need an unscheduled break “every 6-20 minutes.” Id. at 683.
Dr. Erdahl opined that Plaintiff was likely to be absent from work due to her impairments
or treatments 4 or more times per month. And he reported that Plaintiff’s symptoms were
consistent with her medically determinable impairments. Id. at 684.
III.
A.

Disability Defined
As alluded to above, supra, § I, the Social Security Administration provides

Disability Insurance Benefits only to individuals who are under a disability and match other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 469-70 (1986); see 42
U.S.C. § 423(a)(1). Jargon-rich language limits what constitutes a “disability” under the
Disability Insurance Benefits program: “The term ‘disability’ means—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 can be expected to last for
9

a continuous period of not less than 12 months….” 42 U.S.C. § 423(d)(1)(A); see Bowen,
476 U.S. at 470.
B.

The ALJ’s Decision
ALJ Motta reviewed the evidence and evaluated Plaintiff’s disability status under

each of the 5 sequential steps set forth in Social Security Regulations. See 20 C.F.R. §
404.1520(a)(4); see also Rabbers v. Comm’r Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009).
Her more pertinent findings began at steps 2 and 3 where she concluded that Plaintiff had
severe impairments—interstitial cystitis, irritable bowel syndrome, depressive disorder,
and anxiety disorder—and that her impairments did not automatically qualify her for
benefits. (Doc. #6, PageID #s 54-56).
At step 4, the ALJ concluded that the most Plaintiff could do (her residual
functional capacity, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir.
2002)), consists of light work, which for Plaintiff meant lifting up to 20 pounds
occasionally and 10 pounds frequently. (Doc. #6, PageID #56). The ALJ found her
work abilities limited in many other ways. For example, she opined that Plaintiff could
sit, stand, and walk for 6 hours each during an eight-hour workday; occasionally climb
stairs or ramps, balance, stoop, kneel, crouch, or crawl; not climb ropes, ladders, or stairs;
not have to be replaced by another worker before going to the restroom; could be off task
up to 10 percent of the workday beyond normal breaks; limited to simple tasks, lowstress work with no strict-production quotas or fast pace, and only routine work with few
changes in the work setting; and, no contact with the public as part of job duties and no
teamwork. Id. at 56. Given these limitations, the ALJ found that Plaintiff could not
10

perform her past relevant work.
The ALJ concluded at step 5 that there were 362,000 jobs in the national economy
that Plaintiff could perform. Id. at 69. These main findings led the ALJ to ultimately
conclude that Plaintiff was not under a disability and not eligible to receive Disability
Insurance Benefits.
C.

Standards of Review
Review of ALJ Motta’s non-disability decision considers whether she applied the

correct legal standards and whether substantial evidence supports her findings. Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). Substantial evidence is “‘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 v. Comm’r
of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citation omitted). “Yet, even if supported
by substantial evidence, ‘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 right.’” Rabbers, 582 F.3d at 651
(quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir.2007) and citing
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546–47 (6th Cir. 2004)).
IV.
A.

Plaintiff’s Symptoms
Plaintiff argues that ALJ Motta failed to properly evaluate Plaintiff’s symptoms of

frequent urinary urgency, frequent need to use the bathroom, and pain. The ALJ,
11

according to Plaintiff, ignored evidence that supported her assertions that she could no
longer work after January 2015.
The Commissioner contends the ALJ correctly found that the medical evidence
did not show a worsening of Plaintiff’s symptoms in early 2015 and that the ALJ
provided additionally valid reasons for not fully crediting Plaintiff’s subjective
descriptions of her symptoms.
The Social Security Administration uses a two-step process for evaluating an
individual’s symptoms. First, the ALJ determines whether an individual has a medically
determinable impairment that could reasonably be expected to produce the individual’s
alleged symptoms. Soc. Sec. R. 16-3p, 2016 WL 1119029, *3 (March 16, 2016); see
Rogers v. Commissioner of Social Sec., 486 F.3d 234, 247 (6th Cir. 2007). 4 Second, the
ALJ evaluates the intensity and persistence of the individual’s symptoms and determines
the extent to which the individual’s symptoms limit her ability to perform work-related
activities. Ruling 16-3p at *4; see Rogers, 486 F.3d at 247. When considering the
intensity and persistence of the individuals symptoms, ALJs use various factors,
including for instance, “the claimant’s daily activities; the location, duration, frequency,
and intensity of symptoms; factors that precipitate and aggravate symptoms; the type,
dosage, effectiveness, and side effects of any medication taken to alleviate the
symptoms....” Rogers, 486 F.3d at 247 (citations omitted); see Ruling 16-3p (citing

4

The Social Security Administration has clarified that an assessment of an applicant’s subjective
symptoms is not a credibility determination and “is not an examination of the individual’s character.”
Ruling 16-3p, *1.
12

factors in 20 C.F.R. § 404.1529(c)(3)).
The ALJ initially found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause her symptoms. In this the ALJ was correct. Plaintiff’s
interstitial cystitis can reasonably be expected to produce her symptoms of urinary
urgency and frequency, and pain—to name just a few. No physician, including her
gynecologist, found otherwise. See supra, § II.
The ALJ next determined that Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of her symptoms “are not entirely consistent with the
medical evidence and other evidence in the record ….” (Doc. #6, PageID #57). In
reaching this conclusion, the ALJ rejected Plaintiff’s description and statements about her
urinary urgency, her need to use the bathroom frequently (every 5 to 60 minutes), and her
pain levels. The ALJ reasoned (1) Plaintiff had worked for well over a decade before her
disability onset date; (2) during that time, in 2014, she underwent several procedures to
treat her symptoms while continuing to work; (3) the evidence fails to demonstrate a
significant worsening in condition; and (4) she testified that she stopped working because
her condition prevented her from working unlimited overtime, not from symptoms that
caused her to be unable to work.
Each of these reasons collapses under the weight of evidence showing that
Plaintiff’s interstitial cystitis’s symptoms were worsening, and becoming severe, starting
in November 2013 (at the latest) when she sought a second opinion from Dr. Rush about
her condition, symptoms, and treatment options. Dr. Rush documented that Plaintiff was
experiencing severe urinary frequency at this time and that her prior treatments had not
13

worked. (Doc. #6, PageID #s 575-77). The fact that she sought a second opinion from
Dr. Rush shows that her symptoms were not improving with her previous treatment.
Indeed, from November 2013 through 2014 and through her asserted disability onset date
in late January 2015, Plaintiff and Dr. Rush searched without success for a treatment that
would give her long-term symptom reduction.
The fact, moreover, that Dr. Rush decided to examine Plaintiff’s bladder, in March
2014, with a cystoscopy 5 reasonably suggests that her symptoms were becoming more
problematic. Worsening of her symptoms in 2014 also appears in the results of her
March 2014 cystoscopy, during which Dr. Rush found Hunner’s ulcerations “throughout
the [bladder’s] entire dome and trigone. This was very consistent with interstitial
cystitis/painful bladder syndrome….” (Doc. #6, PageID #523) (emphasis added). Such
objective evidence, and Dr. Rush’s medical interpretation of it, confirms Plaintiff’s
statements regarding the severity of her symptoms.
Additionally, in August 2014 Plaintiff and Dr. Rush were still looking for a
treatment to reduce her symptoms. See id. at 492-502. They opted for an InterStim
placement for a trial period. Plaintiff experienced significant relief during the trial period
but later, after Dr. Rush surgically implanted a longer-term InterStim in October 2014,
her symptoms returned. This led Dr. Rush to perform revision surgery involving the
InterStim in November 2014. But this was to no avail. Her symptoms continued into

5

“Cystoscopy … is a procedure that allows your doctor to examine the lining of your bladder and the tube
that carries urine out of your body (urethra).” https://www.mayoclinic.org/testsprocedures/cystoscopy/about/pac-20393694
14

January 2015 when she again went to see Dr. Rush because the InterStim was not
working for her. Id. at 553. In light of the above evidence—and contrasting with the
ALJ’s finding—there is sufficient evidence to reasonably infer that Plaintiff’s interstitial
cystitis and related symptoms were worsening during the year before her asserted
disability onset date.
In February 2015, Dr. Rush had a lengthy discussion with Plaintiff about her
symptoms, findings, and options. He wrote, “[u]rgency and incontinence still a major
issue for pt [patient].” Id. at 548. Her pain was “still present and more constant.” Id.
In March 2015, Plaintiff informed Dr. Rush that she was in a lot more pain and
had not been able to gain weight (another symptom of interstitial cystitis). She also
reported her constant urge to go to the bathroom with no break in between. Id. at 550.
She tried turning off the InterStim but this did not decrease her pain. Id. at 547. Dr.
Rush reviewed Plaintiff bladder diary and wrote, “voiding 15-20x/day with multiple leaks
(up to 10x/day).” Id. at 548. As a result of her worsening symptoms, Plaintiff received
several bladder instillations (medicine mixtures directly put into the bladder 6), but these
failed to help. Id. at 546.
Further, Dr. Rush’s notes contain no indication that he doubted the severity of
Plaintiff’s descriptions of her interstitial-cystitis symptoms—including her frequent urge
to urinate and to use the restroom. Instead, he had repeated, lengthy discussions with
Plaintiff about her symptoms, findings, and options, and he attempted over and over

6

See https://www.ichelp.org/diagnosis-treatment/treatments/bladder-instillations/
15

again to reduce the severity of Plaintiff’s symptoms with a variety of treatments. Id. at
548, 563, 572, 577, 635, 712. Certainly, if Dr. Rush doubted the severity of Plaintiff’s
symptoms, he would have indicated it somewhere in his records. Cf. Felisky v. Bowen,
35 F.3d 1027, 1040 (6th Cir. 1994) (“Surely, if they [physicians] had any doubts about
Felisky’s credibility, some mention of it would appear in the medical record.”).
Turning to Plaintiff’s work history, the ALJ mistakenly found significance in her
ability to work for ten years preceding her asserted disability onset date and in 2014 when
she had several procedures. Plaintiff’s ability to work during this period is not
reasonably probative of whether she could no longer work in and after late January 2015
due to worsening of her symptoms.
The ALJ also relied on Plaintiff’s testimony that she stopped working because her
condition prevented her from working unlimited overtime, not from symptoms that
stopped her from working. This, however, overlooked Plaintiff’s additional testimony.
She explained, “I declined [a job offer] because … just using the restroom as much as I
did do[,] I could not do that [job], so I just went ahead and left and went to … a job in
billing.” Id. at 81. She then left this job because it was too stressful and “the workload
was unbelievable….” Id. She was also struggling to perform the job because she needed
frequent restroom breaks. Her manager informed her that she was not keeping up with
the workflow. Id. at 89. By overlooking these aspects of Plaintiff’s testimony, the ALJ
emphasis on Plaintiff’s work abilities in January 2015 was unreasonably circumscribed.
And the “substantiality of evidence evaluation does not permit a selective reading of the
record.” Brooks v. Comm'r of Soc. Sec., 531 F. App’x 636, 641 (6th Cir.
16

2013); see Minor v. Comm'r of Soc. Sec., 513 F. App’x 417, 435 (6th Cir. 2013)
(reversing where the ALJ “cherry-picked select portions of the record” rather than doing
a proper analysis); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (“ALJ must consider
all the record evidence and cannot ‘pick and choose’ only the evidence that supports his
position.”).
Accordingly, Plaintiff’s challenges to the ALJ’s evaluation of her symptoms of
frequent urinary urgency, frequent need to use the bathroom, and pain are well taken.
B.

Medical Opinions
Plaintiff argues that the ALJ failed to evaluate the medical opinions of record as

required by 20 C.F.R. § 404.1527 and related case law.
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 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,

17

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 at 544). These
factors also govern the ALJ’s review of non-treating medical sources’
opinions. See Gayheart, 710 F.3d at 376.
The ALJ declined to place controlling or deferential weight on Dr. Erdahl’s
opinions by finding them “not fully supported by the record.” (Doc. #6, PageID #62). It
was error for the ALJ to mandate full evidentiary support for Dr. Erdahl’s opinions. “For
a medical opinion to be well-supported by medically acceptable clinical and laboratory
diagnostic techniques, it is not necessary that the opinion be fully supported by such
evidence.” Soc. Sec. R. 96-2P, 1996 WL 374188, *2 (July 2, 1996). To the extent the
ALJ was addressing the “supportability” factor, it was likewise error to require full
evidentiary support. The Regulation describing “supportability” imposes a gradual scale:
“The more a medical source presents relevant evidence to support a medical opinion,
particularly medical signs and laboratory findings, the more weight we will give that
medical opinion….” 20 C.F.R. § 404.1527(c)(3).
The ALJ next placed little weight on Dr. Erdahl because “the determination of
disability is a question reserved to the Commissioner, and there is no indication that Dr.
Erdahl is qualified to offer an opinion on the claimant’s employability….” (Doc. #6,
PageID #62). The fact that Dr. Erdahl expressed an opinion on the ultimate issue of
Plaintiff’s disability status, id. at 619, is not a valid reason to discount or ignore it or his
other opinions about Plaintiff’s work limitations, see id. at 683-84. “The pertinent
18

regulation says that ‘a statement by a medical source that you are ‘disabled’ or ‘unable to
work’ does not mean that we will determine that you are disabled.’ That’s not the same
thing as saying that such a statement is improper and therefore to be ignored....” Bjornson
v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (internal citation omitted); see Kalmbach v.
Comm'r of Soc. Sec., No. 09-2076, 409 Fed. App’x 852, 861 (6th Cir. 2011) (“the fact
that the ultimate determination of disability, per se, is reserved to the Commissioner, 20
C.F.R. § 404.1527(e), did not supply the ALJ with a legitimate basis to disregard the
physicians' [opinions].”).
Next, the ALJ erroneously relied on Plaintiff’s employment during the years
before her disability onset date to discount Dr. Erdahl’s opinions. As explained above,
supra, §IV(A), Dr. Rush’s medical records concerning Plaintiff document a worsening of
her symptoms near her asserted disability onset date. Dr. Rush’s records, moreover, are
consistent with Dr. Erdahl’s report that Plaintiff had severe abdomen/bladder pain,
fatigue, [and] frequent painful urination.” Id. at 683. Dr. Erdahl had access to the Dr.
Rush’s medical records concerning Plaintiff as they were routed to him. Id. at 549, 555,
564, 566, 578, 703, 707, 712. Thus, Dr. Erdahl’s opinions were not based a shallow well
of data but were instead informed by Dr. Rush’s evaluations and treatment of Plaintiff’s
interstitial cystitis and related symptoms.
The ALJ also saw no logical reason supporting Dr. Erdahl’s opinion that Plaintiff
would miss work more than 4 times a month. Yet Dr. Erdahl noted that during Plaintiff’s
flare-ups, she needs to use the restroom every 6 to 20 minutes. Id. It is common sense
that Plaintiff could not work a full-time job when she needed to rush to the bathroom this
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often. And Dr. Rush’s records—which include his review of Plaintiff’s bladder diary—
are logically consistent with and support Dr. Erdahl’s statement about Plaintiff’s frequent
need to use the restroom. Id.
Accordingly, for all the above reasons, Plaintiff’s Statement of Errors is well
taken.
V.
A remand is appropriate when the ALJ’s decision is unsupported by substantial
evidence or when the ALJ failed to follow the Administration’s own regulations and that
shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial
right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to
provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson,
378 F.3d at 545-47; failed to consider certain evidence, such as a treating source’s
opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the
plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific
reasons supported by substantial evidence for finding the plaintiff lacks credibility, see
Rogers, 486 F.3d at 249.
Under sentence four of 42 U.S.C. § 405(g), the Court has authority to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand
under sentence four may result in the need for further proceedings or an immediate award
of benefits. E.g., Blakley, 581 F.3d at 410; Felisky, 35 F.3d at 1041. The latter is
warranted where the evidence of disability is overwhelming or where the evidence of
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disability is strong while contrary evidence is lacking. Faucher v. Sec’y of Health &
Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
A judicial award of benefits is warranted in the present case because the evidence
of disability is strong while contrary evidence is lacking. The strong evidence consists of
Plaintiff’s testimony, which is confirmed and supported by Dr. Rush’s and Dr. Erdahl’s
treatment records, which in turn repeatedly support Dr. Erdahl’s opinions about
Plaintiff’s need for frequent restroom breaks especially during her flare-ups. Work
involving stress causes such flare-ups, and the vocational expert testified that no work
exists for someone who needs to take a break every 20 minutes or be off task more than
greater than 15 percent of the workday. In addition, the vocational expert said that no
work would be available for someone who is absent more than 4 days per month.
Accordingly, a remand for an award of Disability Insurance Benefits is warranted.
IT IS THEREFORE ORDERED THAT:
1. The Commissioner’s non-disability finding is vacated;
2. No finding is made as to whether Plaintiff Heather Kirk was under a
“disability” within the meaning of the Social Security Act;
3. This matter is REMANDED to the Social Security Administration under
sentence
four of 42 U.S.C. § 405(g) for payment of benefits based on the application
Plaintiff
protectively filed on March 4, 2015; and
4. The case is terminated on the Court’s docket.
February 6, 2020

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

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