Wantock, Daniel v. Colvin, Carolyn

Filing 14

ORDER reversing and remanding action to Commissioner for further proceedings RE: 9 Social Security Transcript. Signed by District Judge William M. Conley on 11/28/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DANIEL WANTOCK,

Plaintiff,

OPINION AND ORDER

v.
14-cv-741-wmc
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.

Under 42 U.S.C. § 405(g), plaintiff Daniel Wantock seeks judicial review from the
denial of his application for disability insurance benefits by defendant Nancy A.
Berryhill, the Acting Commissioner of Social Security.

Specifically, plaintiff seeks

remand on the basis that the Administrative Law Judge (“ALJ”) erred as a matter of law
by failing to (1) account for all of his limitations in formulating his residual functional
capacity (“RFC”) and (2) establish a foundation for the testimony of the vocational
expert (“VE”).

(Dkt. #10.)

Because the court agrees that the ALJ did not account

properly for all of plaintiff’s work-related limitations in determining his RFC, this case
will be remanded to the Commissioner for further proceedings.

BACKGROUND1
A. Claimant
Born on September 11, 1966, Daniel Wantock was 45 years old on December 31,
2011, the date on which he was last insured. (AR 11, 18.) Wantock has at least a high
school education, and he speaks English. (AR 18.) His past relevant work is as a dump
truck driver and construction worker. (AR 17.) Beginning on October 1, 2010, however,
Wantock claims he was rendered disabled by ulcerative colitis, a condition which causes
him cramping, pain, loose stools and the need to go to the bathroom frequently.

B. Medical Records
On October 5, 2009, Wantock visited a physician with complaints of an “upset,
gurgly stomach,” gas and diarrhea that he had been experiencing for four weeks. (AR
189.) Roughly a year later, on October 7, 2010, Wantock reported to another physician,
noting an increased number of bowel movements over the preceding several months,
from one to two per day, up to five to ten, and a loss of fifteen pounds between February
and June 2010. (AR 194.) That physician ordered a colonoscopy and referred Wantock
to a specialist. (AR 195.)
Gastroenterology notes dated November 3, 2010, indicate a formal diagnosis of
ulcerative colitis based on the results of Wantock’s colonoscopy, which was performed on
October 28, 2010.

(AR 197.)

The November notes also indicate improvement in

Wantock’s symptoms, including frequency of bowel movements, stool firmness, energy

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Unless otherwise noted, all cites are to the Administrative Record (“AR”). (Dkt. #9.)

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levels and abdominal pain, all of which was attributed to his taking Prednisone as
prescribed after the colonoscopy. (AR 198.)
Even so, Wantock was experiencing diarrhea two to three times per day with
abdominal pain, as reported to Heather J. Chial, M.D., during a visit on January 6, 2011.
(AR 200.)

Wantock followed-up with a phone call to Chial on January 10, 2011,

reporting that his symptoms were getting worse, particularly diarrhea “about every hour”
each night, despite taking Prednisone and Apriso daily and doing “well” for eight to
twelve hours during the day. (AR 216.) The following month, another physician noted
after a visit on February 7, 2011, that Wantock was experiencing no significant change
and having three to ten bowel movements per day, typically between 1 a.m. and 10 a.m.
(AR 201.) While notes from that same physician dated a week later indicated a recent
diagnosis of “Clostridium difficile infection,” Wantock also reported that his symptoms
were getting better, as he lessened his dose of Prednisone and started taking a new
medication for the infection, including six to seven bowel movements at night. (AR 20203.) On his last day taking medicine for the infection, February 24, 2011, Wantock
reported stable symptoms, including five to six bowel movements per day. (AR 220.)
After seeing another physician, Kenneth Horth, M.D., on March 18, 2011,
Wantock began taking Floragen for his ulcerative colitis. (AR 205.) During an April 25,
2011, follow-up appointment, Horth noted that Wantock was having two to four bowel
movements per day and feeling better. (AR 206.) Wantock’s improvement in symptoms
continued, as noted on June 3, 2011 (AR 208), and June 15, 2011, when he expressed no

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interest in taking maintenance medication despite his physician’s recommendation (AR
211-12).
By July 28, 2011, however, Wantock had experienced another downturn in
symptoms. A note on that date indicates that Wantock called with an update, including
that he was having twelve to fifteen loose stools per day and had lost four pounds. (AR
228.)

After a visit on August 4, 2011, Wantock began “infusion” treatment with

Remicade, which produced some improvement. (AR 229-30.) In particular, Wantock
reported having at least four to six bowel movements per day, at a November 2, 2011,
follow-up visit (AR 232), and similar symptoms at a follow-up on January 4, 2012 (AR
233). Similarly, on February 16, 2012, Wantock reported having six to eight stools per
day, with some being urgent (AR 263), and four to seven on March 23, 2012 (AR 266).
He was also “doing fairly well” on September 24, 2012, according to a note made by
Sherry Ekobena, PA-C. (AR 277.)
Unfortunately, Ekobena noted more variable symptoms in her notes following
Wantock’s visit on December 17, 2012. (AR 283.) Specifically, she noted that Wantock
had five to nine stools each day and experienced discomfort, and he had an increased
number of bowel movements and tiredness three to four days per week. (Id.) Ekobena
referred Wantock to medical nutrition therapy, where he was seen by Diane Kelbel, R.D.,
on January 7, 2013. (AR 284.) At that visit, Wantock reported having three to eight
bowel movements per day, with the majority in the morning and the others sporadically
during the afternoon. (Id.) Kelbel recommended that Wantock focus on having a more
consistent nutritional intake. (AR 285.) Kelbel also made similar observations regarding
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Wantock’s diet during a visit on April 2, 2013, following Wantock’s report of four to six
bowel movements per morning. (AR 298.)
The next day, Ekobena filled out an “Irritable Bowel Syndrome Residual
Functional Capacity Questionnaire.” (AR 288-91.) She indicated that Wantock had
frequent stools and a stable prognosis, but also observed that he had repeatedly refused
another colonoscopy to determine whether he had an “active disease.”2

(AR 288.)

Ekobena left blank in the questionnaire whether she had any opinions regarding workrelated limitations Wantock may have, including any resulting from his need for
bathroom breaks. (AR 289-91.)
After examining Wantock’s medical record, state agency medical consultant Janis
Byrd, M.D., opined that he was restricted to “a medium RFC with unlimited [a]ccess to a
bathroom facility.”

(AR 150 (emphasis added).)

State agency consultant Mina

Khorshidi, M.D., reached the same conclusion after her review of Wantock’s medical
record. (AR 168.)

C. ALJ’s Decision
Following an evidentiary hearing on July 11, 2013, the ALJ issued a written
opinion dated August 9, 2013, concluding that Wantock was not disabled. (AR 19.) At
the first step of the Social Security Administration’s evaluation process, the ALJ found
that Wantock did not engage in substantial gainful activity between his alleged onset

In her notes following a visit on March 26, 2013, Ekobena indicated that Wantock refused to
have another colonoscopy because he believed he contracted an infection from the one performed
in October 2010. (AR 301.)
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date of October 1, 2010, and December 31, 2011, his date last insured. (AR 13.) At the
second and third steps, the ALJ found that Wantock had a severe impairment of
ulcerative colitis without equaling the severity of one of the “listed” impairments. (Id.)
At the fourth step, the ALJ found Wantock “had the residual functional capacity to
perform light work . . . except he needed to work indoors within 100 feet of a restroom
facility.” (Id.) The ALJ further found that Wantock was “unable to perform any fastpaced production requirements, which is defined as constant activity, with tasks
performed sequentially in rapid succession.” (AR 13-14.)
The ALJ explained that he arrived at Wantock’s RFC by giving “some weight” to
Byrd’s, Khorshidi’s and Ekobena’s opinions, since they were “generally consistent with
one another and with the medical record,” while adjusting downward to light work to
account for his “continual subjective complaints and ongoing treatment.”

(AR 17.)

Further explaining his finding that Wantock was able to perform “a wide range of light
work,” the ALJ pointed to medical notes indicating “the effectiveness of treatment in
significantly improving his symptoms,” as well as Wantock’s “varied activities of daily
living, general non-compliance with dietary advice, and non-compliance with treatment
advice.”

(Id.)

Some of the activities that the ALJ mentioned in particular included

Wantock’s household chores, grocery shopping, nature watching and attending church.
(AR 16.) Finally, at step four, having limited Wantock to light work, the ALJ determined
that he could not perform his past relevant work. (Id.)
At the fifth and last step, the ALJ relied on in-person testimony from the VE to
find that Wantock was capable of performing other jobs in the national economy,
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including “finger print clerk,” “cleaner/housekeeper” and “office helper.”

(AR 18.)

During the hearing, the VE offered these jobs as available for a hypothetical claimant
with the RFC formulated by the ALJ, including the limitation that the individual “work
indoors within 100 feet of a restroom facility.” (AR 65-66.)
After the VE offered her opinion regarding a hypothetical claimant with
Wantock’s RFC, the ALJ asked about the maximum length of time a typical employer
would tolerate an employee being off task “for any reason,” to which the VE suggested
twenty percent of an eight-hour work day, in addition to scheduled breaks. (AR 67-68.)
The ALJ then asked the VE about the maximum number of times per month a typical
employer would tolerate an employee’s absence. (AR 68.) The VE stated that most
employees could be absent no more than eight days per year, and she also testified that
most employees could not expect to keep a job if they were absent once every month in
the six months after starting a new job. (Id.)
Following up, Wantock’s attorney asked the VE whether an employer would
permit an employee to take three or more unscheduled bathroom breaks of an average of
twenty minutes in a workday.

The VE responded that “unscheduled breaks are not

normally tolerated,” and “if it’s a physical issue, it would have to be an accommodation.”
(AR 69.)

In an attempt to clarify, the ALJ then asked the VE whether employers

typically accommodate employees with irritable bowel syndrome “under the ADA or
otherwise,” to which the VE replied, “yes.” (Id.) After another follow-up question from
Wantock’s attorney, the VE suggested that an employer could accommodate for an

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employee’s need for twenty-minute bathroom breaks by having him work an additional
hour. (AR 70.)
OPINION
Plaintiff Wantock raises two challenges on appeal. First, he argues that remand is
required because the ALJ’s RFC failed to account adequately for his bathroom break
limitations. Second, he argues that the ALJ cannot rely on the VE’s testimony at step
five of his analysis, having neglected to lay a proper foundation for her testimony.
Because plaintiff is entitled to remand based on the former argument, the court will
address it first and the second argument only briefly.

I. RFC and Bathroom Break Limitations
In determining the RFC, the ALJ found that Wantock was capable of light work
with two limitations: (1) he must work indoors within 100 feet of a bathroom; and (2) he
could not do work requiring “tasks performed sequentially in rapid succession.” Citing
treatment notes, plaintiff argues that neither of these limitations accounts for his need to
take unscheduled bathroom breaks due to his ulcerative colitis. In response, defendant
contends that those notes do not require a finding that Wantock needs frequent,
unscheduled bathroom breaks, especially since a number of the notes cited post-date
December 31, 2011, his last-insured date by which Wantock must show that he was
disabled. Defendant also argues that the ALJ’s RFC determination is properly based on
the totality of the medical evidence.

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The court finds defendant’s arguments in support of the ALJ’s RFC determination
unpersuasive. As an initial matter, although defendant argues that plaintiff relies too
heavily on medical evidence of disability for the period after his last-insured date, the ALJ
himself cites medical records from 2012 and 2013 in his decision. (AR 16-17.) Plus, the
Seventh Circuit has acknowledged the common sense principle that evidence of a
claimant’s condition after his last-insured date can be relevant in determining whether he
was disabled as of that date. See Parker v. Astrue, 597 F.3d 920, 925 (7th Cir. 2010);
Halvorsen v. Heckler, 743 F.3d 1221, 1225 (7th Cir. 1984). Perhaps in recognition of this
case law, defendant does not in any event argue that the evidence to which plaintiff cites
is irrelevant or unreliable, so the court will not reject plaintiff’s challenge to the ALJ’s
opinion on that basis alone.
By finding that Wantock needed to work in close proximity to a bathroom in
determining his RFC, the ALJ clearly found the need for some bathroom-related
limitation based on his ulcerative colitis, presumably including the need for unscheduled
breaks. The ALJ failed to explain how he arrived at that particular limitation, but the
inspiration likely came from plaintiff Wantock’s response to a question at the hearing,
which suggested that he may be able work full time if permitted to work “in proximity to
a restroom.” (AR 61.) Although it requires further speculation, and the defendant does
not argue it, the bathroom proximity limitation may also have been inspired by the state
agency consultants’ opinions that Wantock have “unlimited access to a bathroom
facility,” although the ALJ’s limitation is arguably more restrictive than the medical record
would necessarily require. (AR 150, 168.)
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Even if the ALJ’s bathroom proximity limitation is supported by aspects of the
record, however, proximity to a bathroom is only one component of access, which may
reasonably account for Wantock’s sometimes urgent need to go to the bathroom. The
predictability, frequency and length of bathroom breaks are additional components, and
as the VE acknowledged, these components are material to an individual’s ability to
maintain full time employment.

Moreover, there is support in Wantock’s treatment

records for his assertions that he would need to take several, unscheduled bathroom
breaks throughout the work day, and that these breaks could last in excess of twenty
minutes. (See, e.g., AR 288 (Ekobena’s RFC assessment noting “frequent” stools).)
During the hearing, the ALJ referenced notes in Wantock’s medical records
indicating that his bowel movements often occurred at night, but the ALJ did not attack
the credibility of Wantock’s testimony that he may need to take up to six bathroom
breaks lasting twenty to twenty-five minutes during an eight-hour work day, nor does
there appear any basis to do so on this record.3 (AR 62-63.) Indeed, the ALJ did not
even mention Wantock’s hearing testimony regarding the unpredictability, frequency and
length of bathroom breaks in his decision, which further suggests that he failed to
appreciate that the bathroom proximity limitation did not account for all of Wantock’s
work-related limitations caused by his ulcerative colitis. The failure of the ALJ to address

The ALJ’s discussion of Wantock’s daily activities does not amount to a credibility finding as to
his need for bathroom breaks during the work day. See Bardgett v. Apfel, 175 F.3d 1019, No. 981755, 1999 WL 239340, at *7 (7th Cir. Apr. 21, 1999) (Rovner, J., dissenting) (unpublished
table decision) (“The ability to function at home where one can control one’s schedule and access
the bathroom at will is not inconsistent with a contention that one needs six to eight bathroom
breaks a day.”). Nor does defendant argue otherwise.
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these limitations is particularly troubling given the VE’s testimony that the
unpredictability of these breaks may render him unemployable.
Finally, defendant generally concedes plaintiff’s argument that the ALJ cannot rely
on the VE’s testimony that Wantock’s employer would be required to make ADA
accommodations for his need to take sudden, frequent and sometimes lengthy bathroom
breaks to support a finding that he is not entitled to disability insurance benefits.
Instead, defendant argues that because the ALJ asked the VE about a hypothetical
claimant with Wantock’s RFC before asking about ADA accommodations, the ALJ did not
base his decision at step five on an implicit finding that Wantock was able to work with
those accommodations. This argument, however, does not address the ALJ’s failure to
explain how Wantock’s RFC incorporated all of his work-related limitations.
Thus, even though it is doubtful that a limitation regarding proximity to the
bathroom could serve as an adequate proxy for limitations regarding the frequency and
length of unexpected bathroom breaks, the ALJ’s failure to articulate his reasoning
regarding these aspects of Wantock’s bathroom-related limitations alone requires
remand.

See Durr-Irving v. Colvin, 600 F. App’x 998, 1003-04 (7th Cir. 2015)

(remanding when “the ALJ recounted Durr-Irving’s testimony about how frequently she
uses the bathroom and experiences bladder leakage but said nothing about that
testimony when analyzing Irving’s impairments; the ALJ didn’t discredit the testimony but
instead ignored it altogether”) (emphasis in original); Hill v. Astrue, 295 F. App’x 77, 8283 (7th Cir. 2008) (remanding when the ALJ found that the claimant’s urinary frequency
was “episodic,” yet failed to “include allowances for unscheduled breaks in the RFC”); see
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also Patty v. Barnhart, 189 F. App’x 517, 520 (7th Cir. 2006) (noting VE’s testimony that
the jobs identified for the hypothetical claimant “would not tolerate the long bathroom
breaks (of 10 to 30 minutes) that [the treating physician] included in his RFC
assessment”). Lacking any basis in the ALJ’s decision or the medical record to conclude
definitively that the outcome on remand would be the same, the court further agrees with
plaintiff that remand is required for the ALJ to provide a sufficient explanation of
Wantock’s bathroom-related limitations, including the frequency and length of
unexpected bathroom breaks needed during the work day.

II. Foundation for the VE’s Testimony
Having already determined that remand is required for an adequate explanation of
Wantock’s bathroom-related limitations in his RFC, the court notes briefly that plaintiff
fails to establish the need for remand based on his second challenge.4 Plaintiff argues
that the ALJ failed to establish a foundation for the VE’s testimony at the hearing by
asking her about the source for the number of jobs she opined were available, and thus
failed to carry the Commissioner’s burden of proof to establish that plaintiff was able to
perform jobs existing in significant numbers in the national economy at step five. As
defendant correctly points out, however, plaintiff’s argument relies on a misinterpretation
of cases like Voigt v. Colvin, 781 F.3d 871 (7th Cir. 2015), and Browning v. Colvin, 766
F.3d 702 (7th Cir. 2014).

Although critical of the Social Security Administration’s

The court addresses this issue briefly, simply to provide guidance to the parties and ALJ on
remand. Obviously, the ALJ is free to revisit the foundation for any of the VE’s opinions as he or
she sees fit consistent with the rules of evidence applicable at a disability hearing and the exercise
of discretion.
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continued reliance on the outdated Dictionary of Occupational Titles (“DOT”), neither
case overruled precedent permitting ALJ’s to rely on unchallenged VE testimony. See
Adamec v. Berryhill, No. 15 C 11811, 2017 WL 1196920, at *6 (N.D. Ill. Mar. 31, 2017).
Thus, despite the mounting number of circuit court cases criticizing the reliance on the
job figures reported by the DOT, the court is aware of no case requiring remand for that
reason alone.

See Fitzgerald v. Colvin, No. 15-cv-135-bbc, 2016 WL 447507, at *11

(W.D. Wis. Feb. 4, 2016).

ORDER
IT IS ORDERED that the decision of defendant Nancy A. Berryhill, Acting
Commissioner of Social Security, denying plaintiff’s application for disability benefits is
REVERSED AND REMANDED under sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this opinion. The clerk of court is directed to enter judgment
for plaintiff and close this case.
Entered this 28th day of November, 2017.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Court Judge

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