Freed v. Kijakazi

Filing 23

DECISION AND ORDER signed by Magistrate Judge William E Duffin. IT IS ORDERED that the Commissioner's decision is vacated, and pursuant to 42 U.S.C. § 405(g), sentence four, this matter is remanded for further rulings consistent with this decision. The Clerk shall enter judgment accordingly. (cc: all counsel)(blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRIAN FREED,
Plaintiff,
v.

Case No. 20-CV-1012

KILOLO KIJAKAZI, 1
Acting Commissioner of the Social Security Administration,
Defendant.
DECISION AND ORDER
1. Introduction
Alleging that he has been disabled since March 15, 2017 (Tr. 64, 101), plaintiff Brian
Freed seeks disability insurance benefits and supplemental security income. His date last
insured is December 31, 2021. (Tr. 35.) After his application was denied initially (Tr. 98121) and upon reconsideration (Tr. 122-67), a hearing was held before Administrative
Law Judge (ALJ) Guila Parker on May 14, 2019 (Tr. 58-97). On June 19, 2019, the ALJ
issued a written decision concluding that Freed was not disabled. (Tr. 30-50.) After the

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted as the
defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence
of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
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Appeals Council denied Freed’s request for review on May 5, 2020 (Tr. 51-57), he filed
this action. All parties have consented to the full jurisdiction of a magistrate judge (ECF
Nos. 4, 5), and the matter is ready for resolution.
2. ALJ’s Decision
In determining whether a person is disabled an ALJ applies a five-step sequential
evaluation process. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step one the ALJ
determines whether the claimant has engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). The ALJ found that Freed “has not engaged in
substantial gainful activity since March 15, 2017, the alleged onset date[.]” (Tr. 35.)
The analysis then proceeds to the second step, which is a consideration of whether
the claimant has a medically determinable impairment or combination of impairments
that is “severe.” 20 C.F.R. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c). An impairment is
severe if it significantly limits a claimant’s physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1522(a), 416.922(a). The ALJ concluded that Freed has the
following severe impairments: “status post two myocardial infarctions with stenting,
irritable bowel syndrome, headaches, hiatal hernia, and obesity[.]” (Tr. 35.)
At step three the ALJ is to determine whether the claimant’s impairment or
combination of impairments is of a severity to meet or medically equal the criteria of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (called “the listings”), 20
C.F.R. §§ 404.1520(a)(4)(iii), 404.1525, 416.920(a)(4)(iii), 416.925. If the impairment or

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impairments meets or medically equals the criteria of a listing and also meets the twelvemonth durational requirement, 20 C.F.R. §§ 404.1509, 416.909, the claimant is disabled. 20
C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairment or impairments is not of a
severity to meet or medically equal the criteria set forth in a listing, the analysis proceeds
to the next step. 20 C.F.R. §§ 404.1520(e), 416.920(e). The ALJ found that Freed “does not
have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]”
(Tr. 19.)
In between steps three and four the ALJ must determine the claimant’s residual
functional capacity (RFC), which is the most the claimant can do despite his impairments.
20 C.F.R. §§ 404.1545(a)(1), 416.945(a). In making the RFC finding the ALJ must consider
all of the claimant’s impairments, including impairments that are not severe. 20 C.F.R.
§§ 404.1545(a)(2), 416.945(a)(2). In other words, “[t]he RFC assessment is a function-byfunction assessment based upon all of the relevant evidence of an individual’s ability to
do work-related activities.” SSR 96-8p. The ALJ concluded that Freed has the RFC
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). The
claimant is precluded from climbing ladders, ropes, or scaffolds; he should
not work at unprotected heights or around dangerous moving machinery;
he can occasionally stoop, crouch, or crawl; he must avoid concentrated
exposure to extreme heat or cold, to wetness, and to vibration; he can work
in a work environment with no more than a moderate noise intensity; he
can a [sic] work in an environment with light intensity no greater than what
is found in a typical office setting; and he requires a work environment with
ready access to a bathroom.

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(Tr. 38.)
After determining the claimant’s RFC, the ALJ at step four must determine
whether the claimant has the RFC to perform the requirements of his past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1560, 416.920(a)(4)(iv), 416.960. The ALJ concluded that
Freed “is unable to perform any past relevant work[.]” (Tr. 43.)
The last step of the sequential evaluation process requires the ALJ to determine
whether the claimant is able to do any other work, considering his RFC, age, education,
and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c), 416.920(a)(4)(v),
416.960(c). At this step the ALJ concluded that “there are other jobs that exist in significant
numbers in the national economy that the claimant also can perform[.]” (Tr. 43.)
Specifically, the ALJ concluded that Freed could work as a mail clerk (DOT No. 209.687026), office helper (DOT No. 239.567-026) or folder (DOT No. 369.687-018). (Tr. 44.)
3. Standard of Review
The court’s role in reviewing an ALJ’s decision is limited. It must “uphold an ALJ’s
final decision if the correct legal standards were applied and supported with substantial
evidence.” L.D.R. by Wagner v. Berryhill, 920 F.3d 1146, 1152 (7th Cir. 2019) (citing 42 U.S.C.
§ 405(g)); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017) (quoting Castile v.
Astrue, 617 F.3d 923, 926 (7th Cir. 2010)). “The court is not to ‘reweigh evidence, resolve

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conflicts, decide questions of credibility, or substitute [its] judgment for that of the
Commissioner.’” Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019) (quoting Lopez ex
rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)). “Where substantial evidence
supports the ALJ’s disability determination, [the court] must affirm the [ALJ’s] decision
even if ‘reasonable minds could differ concerning whether [the claimant] is disabled.’”
L.D.R. by Wagner, 920 F.3d at 1152 (quoting Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.
2008)).
4. Analysis
4.1. Symptom Severity
An ALJ must engage in a two-step process to evaluate a claimant’s symptoms.
First, the ALJ “must consider whether there is an underlying medically determinable
physical or mental impairment(s) that could reasonably be expected to produce an
individual’s symptoms, such as pain.” SSR 16-3p. “Second, once an underlying physical
or mental impairment(s) that could reasonably be expected to produce the individual’s
symptoms is established, [the ALJ] evaluate[s] the intensity and persistence of those
symptoms to determine the extent to which the symptoms limit an individual’s ability to
perform work related activities….” SSR 16-3p. “The determination or decision must
contain specific reasons for the weight given to the individual’s symptoms, be consistent
with and supported by the evidence, and be clearly articulated so the individual and any

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subsequent reviewer can assess how the adjudicator evaluated the individual’s
symptoms.” SSR 16-3p.
The ALJ must also consider, to the extent they are relevant, the following factors:
1.
Daily activities;
2.
The location, duration, frequency, and intensity of pain or other
symptoms;
3.
Factors that precipitate and aggravate the symptoms;
4.
The type, dosage, effectiveness, and side effects of any medication
an individual takes or has taken to alleviate pain or other symptoms;
5.
Treatment, other than medication, an individual receives or has
received for relief of pain or other symptoms;
6.
Any measures other than treatment an individual uses or has used
to relieve pain or other symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or sleeping on a board); and
7.
Any other factors concerning an individual's functional limitations
and restrictions due to pain or other symptoms.
SSR 16-3p.
Two broad categories of symptoms are most relevant to Freed’s claim: headaches
and gastrointestinal symptoms. He reported severe headaches that he characterized as
migraines occurring every week or two. (Tr. 81.) He would also get “sinus migraines” “a
couple times a week.” (Tr. 81.) A migraine will require him to lie down for an hour or
two. (Tr. 81.) He is prescribed Sumatriptan for migraines, but it causes drowsiness that is
severe enough he needs to nap when he takes it. (Tr. 81-82.)
Freed’s gastrointestinal impairments resulted in pain in his “[l]ower stomach area”
and back with the pain increasing with bowel movements. (Tr. 78-79.) He explained that
he might go a day without a bowel movement, then the next day he will have two or

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three, and on the third day he “could end up in the bathroom the whole day … [j]ust
constantly running back and forth.” (Tr. 79.)
With respect to Freed’s headaches, the ALJ stated:
The treatment notes indicate that the headaches occur daily but provide
little detail about the severity or duration of the headaches or any
accompanying symptoms. The headaches are treated with over-the-counter
pain relievers and sumatriptan. The records suggest medication is
successful in relieving the headaches as the claimant has received only
limited treatment for headaches and neither a referral for more specialized
care nor more aggressive treatments like Botox injections have been
recommended.
(Tr. 40.)
As to his gastrointestinal symptoms, the ALJ acknowledged that Freed “has a
longstanding history of abdominal pain and constipation caused by IBS.” (Tr. 40.) She
continued: “However, a colonoscopy completed in July 2016, found hemorrhoids,
diverticulosis, and colon polyps but was otherwise normal (Exhibit IF/112). The diagnosis
was constipation predominant IBS (Exhibit IF/50).” (Tr. 40.) She noted that certain records
indicated that Freed was doing “relatively well” for a time, and a physical exam showed
“only mild tenderness with no evidence of rebound or guarding.” (Tr. 40.) Moreover,
“[t]he records do not contain any evidence of malnutrition or unintended weigh loss.”
(Tr. 40.)
The ALJ’s assessment was superficial, unclear, and incomplete. She seemingly
paid scarce attention to the relevant factors under SSR 16-3p. For example, although the
ALJ appropriately noted that only conservative measures were used to treat his
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headaches, she did not acknowledge that Sumatriptan caused significant drowsiness.
Moreover, it is unclear what the ALJ meant when she characterized the treatment for
Freed’s headaches as “successful.” Freed still reported frequent headaches, including
weekly headaches that are severe enough to require him to lie down. (Tr. 81.)
It is unclear what significance the ALJ attached to the relatively normal
colonoscopy. Insofar as she was suggesting that it indicated that the symptoms of Freed’s
irritable bowel syndrome were not as severe as alleged, there is no medical evidence to
support such an inference. The ALJ did not point to anything in the record that suggested
that Freed’s gastrointestinal symptoms could be expected to result in an abnormal
colonoscopy. Nor did the ALJ explain how the absence of evidence of malnutrition or
unintended weight loss was inconsistent with Freed’s reported symptoms. While irritable
bowel syndrome that predominantly results in diarrhea may be expected to result in
unintended weight loss, Freed’s irritable bowel syndrome resulted in alternating
constipation and diarrhea. Again, there is no medical evidence in the record suggesting
that these alleged symptoms are inconsistent with Freed’s obesity and unintended weight
gain. (See Tr. 64-65 (noting weight gain).)
Significantly, the ALJ’s assessment of the severity of Freed’s symptoms did not
include a discussion of Freed’s daily activities. For example, while Freed reported that he
used to go fishing every Saturday and Sunday, his symptoms and fear that he will need

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to constantly run to the bathroom has resulted in him going fishing, at best, only few
times a year. (Tr. 69.)
Remand is required for the ALJ to reassess the severity of Freed’s symptoms.
4.2. Medical Evidence
The ALJ must assess a medical opinion in terms of its persuasiveness, paying
particular attention to how well the expert supports his opinion, how consistent the
opinion is with the record, the expert’s relationship with the claimant, the expert’s
specialization and expertise, and any other particularly relevant factors. 20 C.F.R.
§§ 404.1520c(c), 416.920c(c). Although the ALJ must consider all of these factors, she need
only explain how she considered supportability and consistency. 20 C.F.R.
§§ 404.1520c(b)(2), 416.920c(b)(2).
Dr. Peter Han, Freed’s treating gastroenterologist, submitted an impairment
questionnaire in which he stated, in relevant part, that Freed would likely require
“multiple” unscheduled restroom breaks each day, each without notice and for 20
minutes at a time. (Tr. 698-99.) In evaluating Han’s opinion, the ALJ stated:
The undersigned observes that the opinion concerning the need for ready
access to a bathroom and the lifting capacity are reasonably consistent with
and supported by evidence showing IBS with bouts of constipation and
diarrhea, coronary artery disease, IBS, and hiatal hernia. These limitations
are persuasive. However, the remainder of Dr. Han's findings are less
persuasive. Dr. Han did not provide a medical rationale for his sit, stand,
and walk limitations. His assessment of a need for the ability to walk
around for 10 minutes a “couple” of times per day is somewhat vague, and
the undersigned notes that this could be accommodated by routine breaks.
It is also worth emphasizing that Dr. Han reported that the claimant has
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had normal labs, normal CT, and normal endoscopes. It is unclear,
therefore, what basis Dr. Han employed to reach the degree of limitation
assessed. As for stress tolerance, it is reasonable to envision stress as a
trigger for IBS symptoms; however, the limitations in the residual
functional capacity were crafted to limit exposure to stressful demands
such as exertional, postural, and environmental demands beyond the
claimant's tolerance. Predictions concerning absenteeism appear
speculative and no objective rationale is provided.
(Tr. 42.)
Freed argues that the ALJ accepted Han’s opinion that he would need ready access
to a bathroom but erred because she failed to consider the frequency and length of those
unscheduled breaks. (ECF No. 17 at 13.) He notes, “The government’s own vocational
expert testified that an individual who is off task more than 15 percent of the day cannot
work (Tr. 93).” (ECF No. 17 at 13.)
The Commissioner responds that “a common-sense reading of the ALJ’s decision
makes clear that while she agreed Plaintiff should have ready access to a restroom, she
did not accept Dr. Han’s opinion that Plaintiff would need bathroom breaks multiple
times per day for twenty minutes at a time.” (ECF No. 21 at 7.) It was unnecessary for the
ALJ to explicitly refer to the frequency and length of Freed’s bathroom breaks.
Contrary to the Commissioner’s argument, it is far from clear that the ALJ rejected
Han’s opinion regarding how often and for how long Freed would need to use the
bathroom. Rather than simply overlooking this aspect of Han’s opinion, a more
reasonable reading of the ALJ’s decision is that, when she accepted Han’s “opinion
concerning the need for ready access to a bathroom,” she also accepted the frequency and
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duration elements of that opinion. However, the ALJ did not account for these limitations
in her RFC finding.
To the extent it may have been error for the ALJ to not explicitly account for this
limitation in her RFC finding, any error was, by itself, harmless. The vocational expert
testified that an employer would tolerate an employee who was off task no more than 15
percent of a workday in addition to regular breaks. (Tr. 92.) Han’s inherently vague
quantification of “multiple x daily” (Tr. 698) tends to connote, particularly when assessed
in light of the whole of the medical evidence, an average of perhaps two or three times
per day. Consequently, even accepting Han’s opinion that Freed may require two to three
additional unscheduled bathroom breaks totaling 40 to 60 minutes per day, Freed would
not be off task more than 15 percent of the workday.
Han also opined that Freed frequently experiences pain, fatigue, or other
symptoms that were severe enough to interfere with his attention and concentration, and
he would be absent more than three times per month. (Tr. 697-98.) The ALJ stated,
“Predictions concerning absenteeism appear speculative and no objective rationale is
provided.” (Tr. 42.) However, she did not mention Han’s opinions about how Freed’s
symptoms would affect his ability to pay attention or concentrate. And the ALJ’s RFC
finding did not account for these limitations.
The ALJ addressed Freed’s concentration in conjunction with her step two
discussion where she found that he has a “mild limitation.” She noted:

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The claimant reported he has problems with attention and concentration
and cannot pay attention for more than 15 minutes at a time. However, the
claimant retains the capacity for activities demanding some degree of
concentration, persistence, or pace. Such activities include cooking,
performing household chores, shopping, driving, reading, and handling
money. Further, during his teleclaim conversation with the field office, no
problems were noted with talking or answering questions (Exhibits 2E; 4E;
10E).
(Tr. 36.)
In addition to not connecting these statements to her assessment of Han’s
opinions, this explanation is insufficient to sustain the ALJ’s rejection of Han’s opinions
because the activities identified do not tend to reflect Freed’s ability to function on a
sustained basis in a competitive work environment. Moreover, even a mild limitation in
concentration may be material because, as discussed above, the vocational expert testified
that an employer would not accept an employee who was off task more than 15 percent
of the workday. Freed’s unscheduled bathroom breaks could result in significant time off
task. If Freed’s mild impairment in concentration, persistence, and pace resulted in any
time off task in addition to his time off task for bathroom breaks, this combination of
limitations may preclude work. Therefore, remand is required to permit that ALJ to
reassess the extent to which Freed may be off task during the workday, whether through
the need for unscheduled bathroom breaks or limitations in concentration, persistence,
or pace.
Freed also alleges that the ALJ erred in her assessment of the opinions of Dr.
Russell Blankenburg and Dr. Lisa Armaganian. (ECF No. 17 at 13-14.) Dr. Blankenburg
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offered opinions regarding Freed’s headaches. Because the severity of Freed’s headaches
is intertwined with the ALJ’s assessment under SSR 16-3p, reassessment of the severity
of Freed’s symptoms may require reassessment of Dr. Blankenburg’s opinion.
As for the opinion of Dr. Armaganian, a cardiologist, Freed has not demonstrated
that the ALJ erred. The limitations Dr. Armaganian identified were related to Freed’s
gastrointestinal impairments. Having not treated him for those issues, she was in a poor
position to offer an opinion as to how they might affect his ability to work. She explicitly
acknowledged that the physicians who were treating Freed for those issues may be able
to provide more precise information. (Tr. 713.)
5. Conclusion
The ALJ on remand must reassess the severity of Freed’s symptoms in accordance
with SSR 16-3p. This may require the ALJ to reassess Dr. Blankenburg’s opinion
regarding Freed’s headaches. The ALJ must also reassess the evidence suggesting that
Freed may be off task for a significant portion of the workday. A direct award of benefits,
however, is inappropriate because not all factual issues have been resolved, see Israel v.
Colvin, 840 F.3d 432, 441-42 (7th Cir. 2016), and the evidence is not such that it “can yield
but one supportable conclusion.” Martin v. Saul, 950 F.3d 369, 376 (7th Cir. 2020) (quoting
Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993)).

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IT IS THEREFORE ORDERED that the Commissioner’s decision is vacated, and
pursuant to 42 U.S.C. § 405(g), sentence four, this matter is remanded for further rulings
consistent with this decision. The Clerk shall enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 20th day of September, 2021.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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