The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SHERRI L. EVOLA PLAINTIFF
v. No. 2:19-CV-02072
ANDREW M. SAUL, Commissioner,
Social Security Administration DEFENDANT
OPINION AND ORDER
The Court has received a report and recommendation (Doc. 14) from Chief United States
Magistrate Judge Erin L. Wiedemann. Plaintiff Sherri L. Evola has filed objections (Doc. 15).
The Magistrate recommends that the Court affirm the decision of the Social Security
Administration to deny Evola’s claim for disability and SSI benefits and dismiss this action. The
Court has conducted de novo review of those portions of the report and recommendation to which
Evola has objected. 28 U.S.C. § 636(b)(1).
The Magistrate recommends that the Court find that the Administrative Law Judge’s
findings with respect to Evola’s residual functional capacity (“RFC”) were supported by
substantial evidence. “Substantial evidence is less than a preponderance, but enough that a
reasonable mind would find it adequate to support a conclusion.” Combs v. Berryhill, 878 F.3d
642, 645–46 (8th Cir. 2017). “RFC is the most a person can do despite that person’s limitations.”
Brown v. Barnhart, 390 F.3d 535, 538–39 (8th Cir. 2004). RFC is determined by reviewing all
relevant evidence, including a claimant’s credible subjective complaints and statements from
medical sources, whether or not based in an exam. Id. at 539. “Under this step, the ALJ is required
to set forth specifically a claimant’s limitations and determine how those limitations affect her
RFC.” Id. (quoting Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003)).
In determining Evola’s RFC, the ALJ mentioned in passing the effects of Evola’s
medication, but appears to have decided her claims about the limitations resulting from that
medication were not credible:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms: however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record for the
reasons explained in this decision.
(Doc. 10, p. 6). Evola’s claims were that her medications cause drowsiness and frequent urination.
In particular, she testified that one of her medications, hydrochlorothiazide, caused her to urinate
frequently—two or three times each night, and over ten times in any eight-hour period throughout
the day. (Doc. 10, p. 45). Having considered this testimony, the ALJ found:
The claimant does take medication, which she alleged causes some adverse side
effects. The treatment notes indicate, however, that either the claimant has not
reported adverse medication side effects to her healthcare providers, or her
healthcare providers adjusted the claimant’s medication in response to reported side
effects. The evidence in the record as a whole does not indicate that the claimant
experiences any limitations because of her alleged medication side effects beyond
that accounted for in the residual functional capacity assessment described herein.
(Doc. 10, pp. 20–21).
The ALJ’s credibility determination regarding Evola’s complaint that her medication
results in the need for frequent urination throughout the day is not supported by the items on the
record to which he cites. The only basis the ALJ stated for discounting this complaint was that
she either did not report the side effect of frequent urination to her healthcare providers or else
assumed they must have adequately adjusted her dosage. Frequent urination is not a “side effect”
of taking hydrochlorothiazide. It is the effect of taking hydrochlorothiazide. This medication is a
diuretic, and it works by provoking frequent urination. See, e.g., WebMD, Hydrochlorothiazide,
Uses (available at https://www.webmd.com/drugs/2/drug-5310/hydrochlorothiazide-oral/details)
(“Hydrochlorothiazide belongs to a class of drugs known as diuretics/‘water pills.’ It works by
causing you to make more urine.”). There would be no more point in Evola or her healthcare
providers remarking on frequent urination as a problematic side effect in her medical
documentation than there would be in documenting decreased blood sugar as a problematic side
effect of insulin use by a diabetic. Under these circumstances, a reasonable mind would not find
the absence of such remarks in Evola’s medical documentation an adequate basis to discount her
testimony regarding the frequency of her urination.
Because the only articulated basis for determining Evola’s testimony about the frequency
of her urination is not supported by the record, the ALJ’s resulting RFC determination that does
not account for frequent urination is not supported by substantial evidence. The central
significance of the ALJ’s finding regarding Evola’s claims of frequent urination to steps four and
five of the five-step sequential evaluation process used by the Social Security Administration to
determine benefits eligibility cannot be understated. The ALJ found that Evola’s RFC enabled her
to perform light work except occasionally to climb, balance, crawl, kneel, stoop, and crouch.
(Doc. 10, p. 18). When posing hypotheticals to the vocational expert, the ALJ asked whether
Evola could return to her pharmacy tech position with this RFC, and the vocational expert
answered affirmatively, and determined Evola could do other available work, as well. (Doc. 10,
pp. 50–51). The ALJ then asked about the effect of adding to Evola’s RFC the need for frequent
and unscheduled breaks because of side effects from medication, and the vocational expert opined
that this “would eliminate all competitive employment.” (Doc. 10, p. 51).
Because the ALJ’s RFC is not supported by substantial evidence in the record, remand to
the Social Security Administration under sentence four is appropriate. Because this remand will
end the Court’s jurisdiction over the case, any issues raised by the remaining objections to the
report and recommendation need not be addressed.
IT IS THEREFORE ORDERED that the report and recommendation (Doc. 14) is
REJECTED, the decision of the Commissioner of the Social Security Administration to deny
benefits to Plaintiff is REVERSED, and this case is REMANDED for further consideration
pursuant to sentence four of 42 U.S.C. § 405(g). Judgment will be entered accordingly.
IT IS SO ORDERED this 20th day of April, 2020.
/s/P. K. Holmes,
P.K. HOLMES, III
U.S. DISTRICT JUDGE