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Nancy J.H. v. Saul

United States District Court, S.D. Indiana, Indianapolis Division

June 21, 2019

NANCY J. H., Plaintiff,
v.
ANDREW M. SAUL Commissioner of the Social Security Administration, Defendant.

          ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF APPEAL

          Tim A. Baker United States Magistrate Judge

         I. Introduction

         Plaintiff makes multiple arguments in this appeal of the Social Security Administration's denial of her application for disability benefits. One argument is dispositive-that the ALJ failed to consider evidence that supports Plaintiff's claimed need to use the restroom frequently throughout the day (15 to 20 times on a normal day). The ALJ concluded that this claim was unsupported by the record, but the record shows that conclusion was inaccurate, and that the ALJ failed to address the supporting evidence. Accordingly, the Court grants Plaintiff's request for remand [Filing No. 10] so the ALJ can better examine the evidence concerning this claim. With this issue requiring remand, the Court limits its analysis of Plaintiff's other arguments, though the ALJ should consider Plaintiff's arguments on remand.

         II. Background

         Plaintiff was diagnosed with Crohn's disease in 2008, and she applied for disability insurance benefits, alleging disability beginning June 16, 2014. In evaluating Plaintiff's claim, the ALJ used the SSA's five-step sequential process for determining whether an individual is disabled. See20 C.F.R. § 404.1520 (explaining the five-step process). At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity since the alleged onset date. At step two, the ALJ determined that Plaintiff had severe impairments, including degenerative disc disease of the lumbar spine, plantar fasciitis, ulcerative colitis, fibromyalgia, and migraine headaches. However, the ALJ found that Plaintiff's anxiety and depression did not cause a severe impairment. At step three, the ALJ determined that Plaintiff's impairments or combination of impairments did not meet or medically equal any of the listings in 20 C.F.R. pt. 404, subpt. P, app'x 1. Before moving on to step four, the ALJ determined Plaintiff's RFC:

[Plaintiff can] perform sedentary work as defined in 20 CFR 404.1567(a) except that the claimant [can] lift, carry, push and pull ten pounds occasionally and less than ten pounds frequently. The claimant can stand [for] two hours of an eight-hour workday and sit for six hours of an eight-hour workday, provided that she is allowed to alternate between sitting and standing every thirty minutes with one minute to transition. The claimant ambulates with a cane. The claimant can occasionally climb ramps and stairs but never ladders, ropes, or scaffolds. The claimant can occasionally balance, stoop, kneel, crouch, and crawl. The claimant can work in an environment with a noise intensity level of 3 or less, based on the noise intensity level chart set forth by the DOT. The claimant can [ ] never work around unprotected heights, moving mechanical parts or be required to operate a motor vehicle. The claimant must be off task 10% of the workday.

[Filing No. 8-2, at ECF p. 17.]

         Relying on the RFC findings and testimony from the vocational expert, the ALJ determined at step four that Plaintiff could perform past relevant work as a nurse supervisor. Therefore, the ALJ determined that Plaintiff was not disabled. Though the ALJ could have halted her analysis there, she continued to step five. At step five, the ALJ looked to the VE's testimony and Plaintiff's age, education, work experience, and RFC, and found that Plaintiff could work other jobs that existed in significant numbers in the national economy.

         III. Discussion

         Plaintiff contends the ALJ's decision is not supported by substantial evidence because it overlooked medical evidence that supported her claim to need to frequently use the restroom due to ongoing and worsening symptoms from her colectomy. Defendant responds that the ALJ sufficiently analyzed the credibility of Plaintiff's claimed need, and that an ALJ's determination regarding the intensity and persistence of a claimant's symptoms can only be overturned if it is patently wrong. A review of the record shows the ALJ's analysis of the support for Plaintiff's reported limitation of frequent bowel movements is both inaccurate and insufficient, requiring remand.

         Under Social Security Ruling 16-3p, ALJs “must explain why a reported limitation is or is not consistent with the evidence in the record.” Britt v. Berryhill, 889 F.3d 422, 426 (7th Cir. 2018). In doing so, “ALJs must confront evidence that supports a finding of disab[ility] . . . and then explain why it was rejected.” Id.ALJs no longer attempt to determine the overall credibility of a claimant but instead focus on whether the evidence supports the “intensity and persistence” of the specific symptoms the claimant alleged. SSR 16-3p, 2017 WL 5180304, at *2 (“[W]e are eliminating the use of the term ‘credibility' from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character. Instead, we will more closely follow our regulatory language regarding symptom evaluation.”).

         Defendant argues the Court can only reverse an ALJ's determination regarding reported symptoms if it is patently wrong.[1] However, the ALJ's discussion of evidence regarding Plaintiff's alleged symptoms is insufficient. Plaintiff claimed she needed to use the restroom 15 to 20 times a day, and the ALJ concluded that the claimed “frequency and severity of gastrointestinal symptoms [was] unsupported by the evidence in the record.” [Filing No. 8-2, at ECF p. 19.] However, the ALJ's limited discussion overlooked consistent and more recent support for more than 10 bowel movements a day, as well as a subsequent surgery. [Filing No. 8-13, at ECF p. 18 (noting diarrhea 10 times a day); Filing No. 8-15, at ECF p. 41 (diagnostic laparoscopy finding chronic partial bowel obstruction); Filing No. 8-2, at ECF p. 76; (noting an average of 10 loose bowel movements per day); Id. at ECF p. 82 (noting no improvement and that Plaintiff “still has 10-15 loose bowel movement[s] throughout the day”).] The ALJ did not confront this supporting evidence in her decision, as she was required to do.

         Further, support for the ALJ's conclusion is lacking. In her RFC analysis, the ALJ found “no evidence of ongoing clinical manifestations, ” citing to a single June 2014 treatment note from E. David Brown, MD. [Filing No. 8-2, at ECF p. 19 (citing Filing No. 8-8, at ECF p. 16).] However, this conclusion is not supported by Dr. Brown's discussion. Rather than finding no manifestations, Dr. Brown's impression was that Plaintiff in fact suffered from “Pouchitis - flare.” [Filing No. 8-8, at ECF p. 17.] Dr. Brown noted Plaintiff took a course of Flagyl for two weeks, but she only improved for about a week before her symptoms returned and Plaintiff was back to having “more than 10 [bowel movements] a day and several at night.” [Id. at ECF p. 16.] Defendant points out that under “Gastrointestinal, ” Dr. Brown listed “Soft, Non-tender” and “Abdomen: No mass.” [Id. at ECF p. 17.] However, it is unclear how those findings relate to Plaintiff's claim regarding the frequency of her bowel movements or how they negate Dr. Brown's finding of pouchitis.

         Defendant also points to two other records relating to Plaintiff's gastrointestinal limitations that the ALJ cited in her step two analysis. First, the ALJ cited to Dr. Brown's notes from a follow-up visit in August 2014, and the ALJ asserted Plaintiff reported “intermittent episodes of increased stool.” [Filing No. 8-2, at ECF p. 14 (citing Filing No. 8-8, at ECF p. 13).] Again, this is an inaccurate description of the record. Dr. Brown's notes show Plaintiff reported she continued to have 10 bowel movements a day, though she had five on her best day. [Filing No. 8-8, at ECF p. 13.] Second, the ALJ cited a 2015 laparoscopy, which the ALJ asserted “revealed no additional intestinal disorder.” [Filing No. 8-2, at ECF pp. 14-15 (citing Filing No. 8-15, at ECF p. 41).] In fact, the postoperative diagnosis was ...


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