Edwards v. Commissioner of Social Security

United States District Court

Middle District of Florida

Jacksonville Division

DONALD EDWARDS,

Plaintiff,

V. NO. 3:18-CV-1388-J-PDB

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Order

Donald Edwards brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) to

review a final decision of the Commissioner of Social Security denying his

applications for disability insurance benefits and supplemental security income.

Under review is a decision by the Administrative Law Judge (“ALJ”) dated December

20, 2017. Tr. 37–50. Summaries of the law and the administrative record are in the

ALJ’s decision, Tr. 37–51, and the parties’ briefs, Docs. 23, 24, and are not fully

repeated here.

Edwards alleged disability beginning on May 23, 2012, including from Crohn’s

disease. Tr. 364, 371. To understand limitations Edwards may have from Crohn’s

disease, the ALJ conducted a supplemental hearing, at which Ashok Jilhewar, M.D.,

a doctor board-certified in internal medicine and gastroenterology, testified. Tr. 59–

74. He expressed concern that Edwards’s treating gastroenterologist had not

documented the correlation between Edwards’s reports of frequent bowel movements

and Edwards’s use of excessive alcohol. Tr. 62. Dr. Jilhewar explained,

Alcohol damages or destroys the lining of the small bowel. The

consumption of alcohol at the level documented in the medical record,

about a 12-pack of beer a day to 30 beers or can[s] a day, can cause

diarrhea, and quite severe. And what I do not have in the medical record

is the number of bowel movements with the complete total abstinence

from alcohol.

Tr. 62.

The ALJ found Edwards has severe impairments of irritable bowel syndrome;

Crohn’s disease (small bowel); and disorders of the left shoulder, left knee, and spine;

and several non-severe impairments, including a history of substance-abuse disorder

(alcohol).1 Tr. 39–40.

The ALJ found Edwards has no impairment or combination of impairments

that meets or equals any listing, including for inflammatory bowel disease (Listing

5.06). Tr. 42.

The ALJ found Edwards has the residual functional capacity (“RFC”) to

perform sedentary work with additional limitations.2 Tr. 42. The ALJ included no

limitation for bathroom breaks.

Edwards testified he has at least six bowel movements daily, he urinates three

to four times daily, his ability to work is limited by an excessive need for bathroom

breaks (including problems with urgency for bowel movements and urination),

drinking alcohol has no effect on the number of bowel movements he has and, if

anything, drinking alcohol decreases the number of times he uses the bathroom. Tr.

49; see also Tr. 64–65, 87 (Edwards’s testimony). Upon hearing Edwards’s testimony,

1Besides a history of substance-abuse disorder, the ALJ found Edwards has non-

severe impairments of hypertension, chronic anemia, a history of right carpal tunnel

syndrome, a history of sleep deprivation, and a history of post-traumatic-stress disorder.

Tr. 40.

2For the RFC, the ALJ found Edwards can do no more than occasional climbing of

ramps and stairs, balancing, stooping, kneeling, crouching, crawling, and reaching with

the left upper extremity; can never climb ladders, ropes, and scaffolds; and must avoid

concentrated exposure to vibration and hazards. Tr. 42.

Dr. Jilhewar observed, “In the opinion of the treating gastroenterologist as recently

as 2017, [the Crohn’s disease] was so-called mild, but claimant continued to have four

to five bowel movements by self-report, usually after eating, whereas the testimony

is different than what the gastroenterologist wrote in [the] 2017 office visit.” Tr. 66.

Asked to opine about Edwards’s work-related limitations, Dr. Jilhewar testified:

About the bowel movement, it is difficult to state whether it’s the alcohol

intake or not because there is the entry from the application perspective.

… [on December 13, 2015, there are remarks of] the treating provider

for … substance abuse treatment unit at a V.A. hospital, and it says

alcohol five days on, five days off. When on, at least 12-packs of beer a

day for 10 years. Ten years includes [INAUDIBLE] 2005. And therefore

I am not considering the bowel movement frequency in my assessment

because alcohol, definitely 12 cans of beer a day, causes bowel

movements up to eight a day. At the same time, the recovery period can

be one week, and that is my problem in assessing the bowel movements.

Tr. 69–70.

The ALJ found Edwards’s medically determinable impairments could

reasonably be expected to cause his alleged symptoms but his statements about the

intensity, persistence, and limiting effects of those symptoms were not entirely

consistent with the medical evidence and other evidence in the record “for the reasons

explained in this decision.” Tr. 43.

The ALJ reviewed the medical evidence. Tr. 43–49. The ALJ observed records

from the Veteran’s Administration (“VA”) show Edwards was followed for Crohn’s

disease, vitamin D deficiency, iron deficiency due to chronic blood loss, and

hypertension; his treatment for Crohn’s disease included azathioprine and

prednisone; he had indicated overall improvement with prednisone; he had a problem

with ethanol abuse; and he was advised about the effects of binge drinking on his

liver functioning. Tr. 43 (citing Exhibits 1F and 2F). The ALJ described follow-up

visits, including: in March 2013, Edwards reported having about five loose bowel

movements daily and one nocturnal bowel movement but no gastrointestinal

bleeding; in January 2014, Edwards reported having five bowel movements daily and

alcohol cessation improved his bowel movements; in November 2016, Edwards

reported having diarrhea four times daily after eating but stated he was uninterested

in treatment with Humira; in December 2016, Edwards presented to an emergency

room with complaints of abdominal pain, vomiting, and diarrhea for two days and

reported inconsistent use of azathioprine, recurrent occasional flare-ups, and “self-

medicating” with beer; and in January 2017, Edwards primarily complained about

weight loss and again declined Humira. Tr. 44–46.

In discussing Edwards’s Crohn’s disease, the ALJ stated:

[Edwards]’s symptoms have been mild and he has been maintained on

medication. He reported multiple bowel movements daily preventing

work activity (hearing testimony). However, records do not indicate that

he is as limited as alleged and he had better management of symptoms

with compliance with treatment. During a gastroenterology, 6-month

follow-up in May 2017, the claimant noted bowel movements were

regular, but variable. The clinical assessment was clinically stable

Crohn’s and he was continued on his current regimen. Despite his

complaints, he has not had a significant weight loss and has been

advised to lose weight. In addition, [Edwards] has repeatedly declined

Humira. In addition, he continued with ETOH [ethanol] abuse despite

being advised regarding the effects on his condition. Medical expert, Dr.

Jilhewar, indicated that [Edwards’s] ETOH abuse contributed to

increased bowel movements (hearing testimony).

Tr. 48 (internal citations omitted).

The ALJ continued:

I further note that [Edwards] has not required extended inpatient

hospitalization for a physical problem. There is no indication that

[Edwards] has any medication side effects that would affect his ability

to work. The claimant has described daily activities, which are not

limited to the extent one would expect, given the complaints of disabling

symptoms and limitations. [Edwards] testified that he started attending

school last year. He spends time studying for classes. … [Edwards’s]

ability to engage in a full range of daily activities, including taking

college courses, performing household chores and helping with care of

his mother indicates he is not as limited as alleged. In addition, none of

[his] treating physicians enumerated any physical work-related

limitations.

Tr. 48.

The ALJ discussed Dr. Jilhewar’s testimony: “[Dr. Jilhewar] noted the

claimant refused Humira because he did not want to take it due to side effects. … He

noted that at the time of [a March 2014] motor vehicle accident, the claimant’s blood

alcohol level was 368. … He indicated that the claimant’s bowel disorder was

impacted by his alcohol use as alcohol causes bowel movements.” Tr. 49.

The ALJ added:

Upon questioning by [Edwards’s] attorney, Dr. Jilhewar acknowledged

that [Edwards’s] Crohn’s disease could cause urgency, especially with

continued use of alcohol. Although [Edwards] alleged this as a factor

interfering with his ability to work along with excessive need for

bathroom breaks, I did not include any urgency/bathroom break

limitations in the [RFC] as the claimant’s allegations are not

corroborated by ongoing reports to treating sources, as

discussed above.

Tr. 49 (emphasis added). The ALJ gave Dr. Jilhewar’s opinion great weight. Tr. 49.

The ALJ discussed and gave significant weight to a March 2015 consultative

examination by Robert Martin, M.D., in which Dr. Martin reported Edwards was on

regular medications for control of his Crohn’s disease, Tr. 48, 1260, and some weight

to a July 2015 opinion of state-agency consultant Edward Molis, M.D., who opined

Edwards can perform a reduced range of light work, Tr. 48, 146–50.

Based on the RFC and other factors, the ALJ found Edwards could perform his

past relevant work as an insurance office manager. Tr. 49. She therefore found no

disability. Tr. 50.

Edwards challenges the ALJ’s statement emphasized above. Doc. 23 at 6, 8. He

argues the ALJ did not “fully and fairly” evaluate the medical evidence because that

evidence includes many references to frequent bowel movements.3 Doc. 23 at 7 (citing

Tr. 539, 861 [in August 2012, Edwards reported he had up to eight bowel movements

daily]; Tr. 857 [in September 2012, Edwards reported four loose bowel movements

daily on a good day and eight on a bad day]; Tr. 571, 808–09 [in March 2013, Edwards

reported he had about five loose bowel movements daily]; Tr. 574, 812 [in June 2013,

Edwards reported he had increased diarrhea]; Tr. 764 [in January 2014, Edwards

reported five loose bowel movements daily]; Tr. 1787–88, 1794 [in December 2016,

Edwards reported abdominal pain and diarrhea and doctor opined Edwards needed

to be treated for acute Crohn’s disease flare]). The evidence does not indicate whether

Edwards was reporting bowel movements for a 24-hour period or for the daytime

period, referencing only “per day.”

In essence, Edwards argues substantial evidence does not support the ALJ’s

statement or the failure to include in the RFC a limitation concerning bathroom

breaks. See Doc. 23 at 5–6.

A court reviews the Commissioner’s factual findings for substantial evidence.

42 U.S.C. § 405(g). “Under the substantial-evidence standard, a court looks to an

existing administrative record and asks whether it contains sufficient evidence to

support the agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019) (internal quotation marks and alteration omitted). “[W]hatever the

meaning of ‘substantial’ in other contexts, the threshold for such evidentiary

sufficiency is not high.” Id. “Substantial evidence … is more than a mere scintilla. …

3Edwards also cites treatment notes from before the alleged May 23, 2012, onset

date. Doc. 23 at 7 (citing Tr. 499 [in January 2011, Edwards reported he had eight bowel

movements daily]; Tr. 471 [in March 2011, colonoscopy showed diagnosis of chronic ileitis

with active cryptitis, and Edwards reported he had four bowel movements daily, a slight

improvement after beginning new medication]; Tr. 730 [in May 2011, Edwards reported

up to eight loose bowel movements daily]; Tr. 556 [in December 2011, Edwards reported

he had more than six bowel movements daily]).

It means—and means only—such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).

The substantial-evidence standard applies only to factual findings. Brown v.

Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). “The Commissioner’s failure to apply

the correct law or to provide the reviewing court with sufficient reasoning for

determining that the proper legal analysis has been conducted mandates reversal.”

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (quoted

authority and alterations omitted).

“[T]he burden of showing that an error is harmful normally falls upon the party

attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

An error is harmless if it did not affect the ALJ’s ultimate determination. Hunter v.

Comm’r of Soc. Sec., 609 F. App’x 555, 558 (11th Cir. 2015). If “remand would be an

idle and useless formality,” a reviewing court need not “convert judicial review of

agency action into a ping-pong game.” N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759,

766 n.6 (1969).

An ALJ must consider all relevant record evidence. 20 C.F.R. §§ 404.1520(a)(3),

416.920(a)(3). “[T]here is no rigid requirement that the ALJ specifically refer to every

piece of evidence in his decision, so long as the ALJ’s decision … is not a broad

rejection which is not enough to enable [the Court] to conclude that [the ALJ]

considered [the claimant’s] medical condition as a whole.” Dyer v. Barnhart, 395 F.3d

1206, 1211 (11th Cir. 2005) (internal quotation marks omitted). An ALJ’s

determinations may be implicit, but the “implication must be obvious to the reviewing

court.” Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983).

In evaluating a claimant’s subjective complaints of pain or other symptoms, an

ALJ must determine whether there is an underlying medical condition and either

(1) objective medical evidence confirming the severity of the alleged symptom arising

from that condition or (2) evidence the condition is so severe that it can be reasonably

expected to cause the alleged symptom. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th

Cir. 1991). If the objective medical evidence does not confirm the alleged severity of a

claimant’s symptom, but an impairment can be reasonably expected to cause that

alleged severity, an ALJ must evaluate the intensity and persistence of the alleged

symptoms and their effect on ability to work. 20 C.F.R. §§ 404.1529(c)(1),

416.929(c)(1). In doing so, an ALJ must consider all evidence, including objective

medical evidence and statements from the claimant and others. Id. §§ 404.1529(c)(2)–

(3), 416.929(c)(2)–(3). An ALJ also must consider “whether there are any

inconsistencies in the evidence and the extent to which there are any conflicts

between [the claimant’s] statements and the rest of the evidence.” Id.

§§ 404.1529(c)(4), 416.929(c)(4). An ALJ must articulate her reasoning.4 Holt, 921

F.2d at 1223.

Here, the ALJ applied the correct standards and found while Edwards’s

impairments could reasonably be expected to cause his alleged symptoms, his

subjective allegations were inconsistent with medical opinions, his medical record

showing mild Crohn’s disease and effective control with treatment, Dr. Martin’s

consultative examination, Edwards’s daily activities, and that no treating physician

had placed any restriction on his functioning. See Tr. 48–49.

Edwards shows no harmful error. The ALJ correctly observed Edwards did not

consistently report problems with urgency or frequency of urination to his treating

sources. The ALJ cited only one record in which Edwards reported an issue with

urination, see Tr. 47 (“[I]n April 2017, the claimant complained of urgency and

4Effective March 28, 2016, Social Security Ruling (“SSR”) 16-3p rescinded a

previous SSR on credibility of a claimant. SSR 16-3p, 2017 WL 5180304 (October 25,

2017) (republished). The SSR removed “credibility” from policy because the regulations

do not use that term. Id. The SSR clarified that “subjective symptom evaluation is not an

examination of an individual’s character” and provided a two-step evaluation process. Id.

Because the ALJ issued her decision on December 20, 2017, Tr. 50, the new SSR applies

here. See Hargress v. Soc. Sec. Admin., 883 F.3d 1302, 1308 (11th Cir. 2018) (holding new

SSR did not apply when the ALJ issued his decision before the SSR effective date).

frequency of urination.” (citing Tr. 1827)), and Edwards does not point to any other

such records or argue that the ALJ erred in her assessment of his claims regarding

urinary urgency or frequency. See, e.g., Doc. 23 at 7 (highlighting evidence of reports

of frequent bowel movements).

Regarding urgency or frequency of bowel movements, the ALJ summarized the

medical evidence, including records documenting Edwards’s reports of bowel

movements to his treating sources. See, e.g., Tr. 44 (“During a VA follow-up

appointment in March 2013, the claimant stated he had about five loose bowel

movements a day and one nocturnal bowel movement. … [In January 2014, he]

described having five bowel movements a day.”); Tr. 46 (“[In November 2016,] he

reported diarrhea four times a day after eating.”). She did not have to specifically

refer to every piece of evidence, see Dyer, 395 F.3d at 1211, and she did not—as

Edwards implies—completely ignore medical records showing he complained to

treating sources about frequent bowel movements.

Even if the ALJ erred in describing how consistently Edwards reported

frequent bowel movements to his treating sources, Edwards shows no harm. The ALJ

found his statements about the intensity, persistence and limiting effects of his

symptoms—including his reports of frequent bowel movements—were not entirely

consistent with the record evidence, Tr. 47, and gave reasons supporting that finding,

Tr. 48–49. She declined to include a bathroom-break limitation in the RFC based on

her overall assessment of Edwards’s claimed symptoms—not only because she

thought the medical records reflected inconsistent reporting of a need for frequent

bathroom breaks.

Moreover, the vocational expert testified Edwards could still perform his past

relevant work as a manager even if he had to take four unscheduled bathroom breaks

in addition to customary breaks (two 15-minute breaks and a 30-minute lunch break).

Tr. 49, 101–02. Because Edwards’s past relevant work is skilled, the vocational expert

testified he would have more flexibility to take unscheduled breaks. Tr. 102. Even

considering Edwards’s testimony that he requires multiple unscheduled bathroom

breaks, the vocational expert’s testimony supports the ALJ’s finding that Edwards

could perform his past relevant work without a bathroom-break limitation in the

REC. Tr. 49.

Edwards challenges only the “no ongoing reports to treating sources” reason

and does not argue that substantial evidence does not support the other reasons the

ALJ gave for discounting his claimed symptoms.

The Court affirms the Commissioner’s decision and directs the clerk to enter

judgment for the Commissioner and against Donald Edwards and close the file.

Ordered in Jacksonville, Florida, on March 238, 2020.

PATRICIA D. BARKSDALE

United States Magistrate Judge

Cc: Counsel of Record

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