The opinion
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
G. HYDE1, )
)
Plaintiff, )
)
vs. ) Case No. 3:23-cv-00782-GCS
)
COMMISSIONER OF SOCIAL )
SECURITY, )
)
Defendant. )
MEMORANDUM & ORDER
SISON, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff seeks judicial review of the final
agency decision denying her application for Disability Insurance Benefits (“DIB”)
pursuant to 42 U.S.C. § 423.
PROCEDURAL HISTORY
Plaintiff applied for DIB on November 11, 2019, alleging disability as of August
29, 2019. (Doc. 15, Exh. 5, p. 5-12). Plaintiff was denied DBI initially, as well as upon
reconsideration. (Doc. 15, Exh. 3). The Administrative Law Judge (“ALJ”) held a hearing
in March 2022, at which Plaintiff, Plaintiff’s attorney, and a vocational expert testified.
(Doc. 15, Exh. 2, p. 75-117). The ALJ issued a decision on July 28, 2022, finding that
Plaintiff was not disabled because she had the residual functional capacity (“RFC”) to
perform a reduced range of light work and could perform a significant number of jobs in
1 Plaintiff's full name will not be used in this Memorandum and Order due to privacy
concerns. See FED. R. CIV. PROC. 5.2(c) and the Advisory Committee Notes thereto.
the national economy. (Doc. 15, Exh. 2, p. 54-74). In January 2023, the Appeals Council
denied Plaintiff’s request for review of the ALJ’s decision, making it final and appealable.
(Doc. 15, Exh. 2, p. 2-4). Plaintiff then went on to file this action pursuant to 42 U.S.C. §
405(g) on March 3, 2023. (Doc. 1).
ISSUES RAISED BY PLAINTIFF
Plaintiff raises the following issues:
I. The Commissioner erred as a matter of law by failing to account for any
functional limitations in the RFC related to Plaintiff’s irritable bowel syndrome
(“IBS”), which was found to be a severe impairment. (Doc. 20, p. 9-15).
II. The Commissioner erred as a matter of law by failing to perform an adequate
credibility analysis, in violation of SSR 16-3p. (Doc. 20, p. 16-18).
APPLICABLE LEGAL STANDARDS
To qualify for DIB and SSI, a claimant must be disabled within the meaning of the
applicable statutes. Under the Social Security Act, a person is disabled if he or she has an
“inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(a).
To determine whether a plaintiff is disabled, the ALJ considers the following five
questions in order: (1) Is the plaintiff presently unemployed? (2) Does the plaintiff have
a severe impairment? (3) Does the impairment meet or medically equal one of a list of
specific impairments enumerated in the regulations? (4) Is the plaintiff unable to perform
his or her former occupation? and (5) Is the plaintiff unable to perform any other work?
See 20 C.F.R. § 404.1520.
An affirmative answer at either step three or step five leads to a finding that the
plaintiff is disabled. A negative answer at any step, other than at step three, precludes a
finding of disability. The plaintiff bears the burden of proof at steps one through four.
Once the plaintiff shows an inability to perform past work, the burden then shifts to the
Commissioner to show the plaintiff’s ability to engage in other work existing in
significant numbers in the national economy. See Zurawski v. Halter, 245 F.3d 881, 886 (7th
Cir. 2001).
It is important to recognize that the scope of judicial review is limited. “The
findings of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . ..” 42 U.S.C. § 405(g). Thus, this Court must determine not
whether plaintiff was, in fact, disabled at the relevant time, but whether the ALJ’s
findings were supported by substantial evidence and whether any errors of law were
made. See Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). The Supreme
Court defines substantial evidence as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(internal citations omitted).
In reviewing for “substantial evidence,” the entire administrative record is taken
into consideration, but this Court does not reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute its own judgment for that of the ALJ. See Burmester
v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). However, while judicial review is deferential,
it is not abject; this Court does not act as a rubber stamp for the Commissioner. See Parker
v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010).
THE DECISION OF THE ALJ
The ALJ followed the five-step analysis detailed above. He determined that
Plaintiff had not worked at a level of substantial gainful activity since the alleged onset
date – August 29, 2019, through her date of last insured of March 31, 2022. (Doc. 15, Exh.,
2, p. 59). The ALJ found that Plaintiff had the following severe impairments: cervical and
lumbar spine degenerative disc disease, IBS, major depressive disorder, generalized
anxiety disorder, and post-traumatic stress disorder (“PTSD”). Id. at p. 59-60.
The ALJ also found that Plaintiff had the RFC to “perform light work as defined
in 20 C.F.R. § 404.1567(b) except she can never climb ladders, ropes or scaffolds; only
occasionally climb ramps and stairs; occasionally stoop, kneel, crouch and crawl; never
be exposed to whole body vibration, unprotected heights, or unprotected moving
machinery; and is limited to performing simple routine tasks in jobs where changes in
duties are the same changes daily, there is no direct interaction with the general public
and there is only occasional interaction with co-workers and supervisors.” Id. at p. 63.
(Doc. 15, Exh. 2, p. 66). Regarding Plaintiff’s digestive issues, the ALJ recounted and
determined the following:
Once she starts eating her gut starts moving and she has urgency. She never
received the right medical care for pelvic prolapse. She wears a pad or
diaper. Thirteen of fourteen days she wakes up with incontinence. She tried
medications, physical therapy, and adjusting her diet, with no relief. She
does not eat during the day until she is home for good. She has three or
more bowel movements from 5pm to 9pm. (Doc. 15, Exh. 2, p. 64-65).
…….
The claimant also reported developing both constipation and diarrhea after
coming off psychotropics six months prior and while ulcerative colitis, food
allergies, and celiac disease were ruled out, a biopsy to rule out Crohn’s
disease was pending (B2F/17; B5F). The claimant participated in physical
therapy for associated rectal prolapse with improvement. A colonoscopy in
September 2018 showed internal hemorrhoids, but was otherwise normal,
though treatment notes indicate fecal incontinence (B2F; 15, 17; B5F/27).
The claimant reported severe rectal pain, daily fecal incontinence, and
diarrhea through February 2019 (B2F/3, 5-12). She did report some
improvement with pelvic floor therapy, but by June 2019 had a rectal plug
for anal incontinence and a stimulator for IBS recommended (B7F/12, 20).
She was told that her symptoms were stress related as she was going
through a divorce at the time, and Wellbutrin and Interstim were
recommended. The claimant’s testimony, considered as a whole, however,
indicates that she leaves home daily and is busy throughout the day. (Doc.
15, Exh. 2, p. 66).
Further, the ALJ found that Plaintiff had no past relevant work experience and
that considering her age, education, work experience and RFC, that there were jobs in the
national economy that claimant could perform. Id. at p. 69-70.
THE EVIDENTIARY RECORD
The Court has reviewed and considered the entire evidentiary record in formulating
this Memorandum and Order. The following summary of the record is directed to the
points raised by Plaintiff.
A. Evidentiary Hearing
Plaintiff was represented by an attorney at the hearing in March 2022. (Doc. 15,
Exh. 2, p. 75). Plaintiff’s last full-time job was with the Army. Plaintiff left the Army “due
to a mess of her own medical needs as well as [her] son’s medical needs.” Id. at p. 86. She
noted that she was in the process of possibly being “Med Boarded” but ultimately got out
of the Army on the Family Care Plan due to her son’s special needs. Id. Plaintiff also noted
that she currently receives 100% VA disability benefits due to her “individual
unemployability.” Id. at p. 87.
Plaintiff recounted her gastrointestinal issues. Plaintiff stated that once she starts
eating, “whatever is in [her] gut is going to start moving whether it’s one way or the
other.” (Doc. 15, Exh. 2, p. 99). She deals with both diarrhea and constipation, and both
conditions stem from what she has eaten. Id. However, Plaintiff noted that her “biggest
issue” is urgency. Id. Plaintiff stated that she suffers from rectal prolapse and that she’s
never been able to get into the right care or do the right physical therapy for it. Id. She
reported having gone to pelvic floor therapy twice, and it has been recommended that
she go for a third course of treatment, but COVID conditions have made it difficult to
“get back into” it. Id.
Regarding her incontinence, she reported wearing a long pad or a woman’s diaper
at night because “without failure [she] is woken up by a bowel movement 13 days out of
14.” (Doc. 15, Exh. 2, p. 99-100). Plaintiff has seen a GI specialist for the issue and has tried
altering her diet, physical therapy, and medications to control her symptoms. Id. at p. 100.
None of these have provided Plaintiff with relief. Id.
When Plaintiff must pick up her children from school, she does not eat until after
she picks them up. Id. On those days, she does not eat from 6:00 am until 4:00 pm. (Doc.
15, Exh. 2, p. 100-101). Plaintiff reported not feeling comfortable eating at a restaurant
with her children because of her incontinence, and they often do “picnics in the car.” Id.
at p. 101. If Plaintiff ate a regular diet consisting of breakfast, lunch, and dinner – Plaintiff
anticipated that she would have multiple bathroom visits related to each of those meals.
Id. at p. 102. She reported that she experiences pain with her bowel movements because
of her anal prolapse and anal hemorrhoids even though she has had several of her
hemorrhoids banded and surgically removed. Id.
When Plaintiff has an accident, if she has been wearing a diaper, the process for
Plaintiff to clean up is at least five to fifteen minutes depending on the severity. (Doc. 15,
Exh. 2, p. 109). To clean up, Plaintiff uses a bidet attached to her toilet or takes a shower.
Id. Plaintiff expressed that it is necessary for her to take a shower half of the time when
she experiences an accident. Id. Plaintiff expressed concern about cleaning up in a
standard work bathroom without a bidet or shower. Id. (stating “I don’t even know how
I would [clean up]. Safety wise – I don’t think it would be . . . ”). If Plaintiff had an accident
at work, Plaintiff stated she would prefer to go home to clean up. Id. at p. 110. Generally,
she also believes that she would not be able to sufficiently clean herself up if she had an
accident at work and she would feel embarrassed if she were not allowed to go clean up
at home. Id.
A vocational expert, Ms. Susan Shea also testified at the hearing. (Doc. 15, Exh. 2,
p. 110-116). Ms. Shea reported that there are regular breaks throughout a workday, and
stated the following:
. . . work 1 and a half to 2 hours, have a 15-minute break, work 1 and a half
to 2 hours, have at least a 30-minute period for lunch, return to work for 1
and a half to 2 hours then have a 15-minute break. Return one and a half to
two hours which ends the day. In addition to that, there would be two
additional breaks, typically of five minutes or less, typically spread out one
before the meal period, one after. And they would be five minutes or less.
Anything in addition would eliminate work.
(Doc. 15, Exh. 2, p. 112-113). In response to Plaintiff’s counsel questioning her about
absenteeism for SVP 2 type jobs, the threshold for absenteeism for those positions is as
follows:
A: Absenteeism would be, if there were two or more days per month of
absenteeism on an ongoing basis, the individual would likely be
terminated.
Q: Okay, and then just for clarification, if an individual were to show up
late or leave early by at least one hour in time, would that be considered an
absence?
A: Yes, it would.
Id. at p. 114.
B. Relevant Medical Records
Plaintiff’s symptoms of IBS reportedly began in 2017. See, e.g., (Doc. 15, Exh. 8, p.
139) (stating that “[s]ymptoms started in 2017 with difficulty holding bowel
movements.”).
On September 17, 2018, records state that Plaintiff was in constant abdominal pain,
which was quite severe at times. (Doc. 15, Exh. 7, p. 30). She reported that she had been
to the emergency room between eight and nine times for abdominal pain. Id. Plaintiff also
noted that she had experienced 90 lbs. of unintentional weight loss due to the severity of
her symptoms. Id. In the treatment plan for the visit, the record notes that Plaintiff has a
history of fecal incontinence, chronic constipation, and rectal pain. Id.
On October 26, 2018, Plaintiff’s medical records state that Plaintiff reported
“continued fecal urgency, some loose stools and about 1 fecal incontinence episode per
week.” (Doc. 15, Exh. 7, p. 28). Additionally, Plaintiff reported that she was “avoiding
multiple foods including dairy and processed carbs and is basically sticking to a whole
food diet.” Id. However, Plaintiff’s IBD panel came back negative. Id. at p. 29.
On June 18, 2018, records state that Plaintiff has “persistent incontinence” with
“variable bowel movements.” (Doc. 15, Exh. 8, p. 164). Other symptoms reported
included “post prandial abdominal bloating and discomfort.” Id. Plaintiff claimed that
these symptoms did not improve after bowel movements. Id.
A November 4, 2019, a note in Plaintiff’s medical records indicated that Plaintiff
uses “rectal inserts to avoid incontinence during more inconvenient times.” (Doc. 15, Exh.
8, p. 140).
On November 10, 2020, medical records indicate that Plaintiff was continuing to
experience “chronic symptoms,” noting “enhanced gastrocolic reflex with need to have a
bowel movement after any po [food] intake.” (Doc. 15, Exh. 8, p. 141). Plaintiff reported
“occasional associated fecal incontinence” and that she will use “adult diapers in certain
situations.” Id. Plaintiff reported that payllium helps regulate the bowel movements
“somewhat” and that she “uses CBD suppositories for cramps and bloating.” Id. The
treating physician recognized Plaintiff as having “irritable bowel syndrome with
diarrhea.” Id.
C. State Agency Consultants’ Opinions
The ALJ relied on two consultative examinations in support of his
recommendation regarding Plaintiff’s IBS. The first consultative examination took place
on October 14, 2020, and was conducted by Dr. Kathleen Treanor. (Doc. 15, Exh. 3, p. 23-
36). Dr. Treanor had copies of the previously discussed medical records above. Id. p. 24-
27. Dr. Treanor’s analysis recognized that Plaintiff suffered from irritable bowel
syndrome. Id. at p. 28. However, in her review of Plaintiff’s physical issues, she only
noted the following in relation to Plaintiff’s diagnosis of irritable bowel syndrome:
“8/10/18, ED-abd. Pain. PE: diffuse abd. Tenderness, otherwise nl. CT: mod- marked
stomach distension, no obstruction or inflammation. DX: UTI, cystitis, constipation.” Id.
at p. 28. Still, she recognized Plaintiff’s irritable bowl disease impairment as “severe.” Id.
at p. 29. The second consultative examination took place on July 25, 2021, and was
conducted by Dr. Cristina Orfei. (Doc. 15, Exh. 3, p. 45-57). Dr. Orfei only noted the
following regarding Plaintiff’s gastric symptoms “AOD 8/29/19, alleged irritable bowel
syndrome.” Id. at p. 45.
DISCUSSION
A. Whether the Commissioner erred as a matter of law by failing to account for any
functional limitations in the RFC related to Plaintiff’s IBS, which was found to
be a severe impairment.
Plaintiff asserts that the ALJ failed to build an “accurate and logical bridge”
between his finding that Plaintiff’s irritable bowel disease constitutes a severe condition
and the RFC. (Doc. 20, p. 11-14). Defendant opposes Plaintiff’s characterization of the
ALJ’s decision and believes that substantial evidence supported the RFC and that the ALJ
accurately grappled with the available evidence in making his determination. (Doc. 26,
p. 3-9). Upon review of the record, the Court finds that the ALJ did not adequately
consider Plaintiff’s limitations relating to her allegations of fecal incontinence. Thus, the
Court remands the case consistent with the discussion herein.
In reviewing for substantial evidence, the entire administrative record is taken into
consideration, but the reviewing court may not “reweigh the evidence, resolve debatable
evidentiary conflicts, determine credibility, or substitute [its] judgment for the ALJ’s
determination.” Gedatus v. Saul, 994 F.3d 893, 900 (7th Cir. 2021). The Seventh Circuit “has
repeatedly held that although an ALJ does not need to discuss every piece of evidence in
the record, the ALJ may not analyze only the evidence supporting [their] ultimate
conclusion while ignoring evidence that undermines it.” Moore v. Colvin, 743 F.3d 1118,
1123 (7th Cir. 2014). When an ALJ ignores an entire line of evidence, contrary to the ruling,
it makes it impossible for a district court to assess whether the ruling rested on substantial
evidence. See Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009). Ignoring evidence in this
way requires the district court to remand to the agency. See Golembiewski v. Barnhart, 322
F.3d 912, 917 (7th Cir. 2003).
The Court believes that the ALJ ignored Plaintiff’s testimony relating to her
episodes of fecal incontinence in connection with her irritable bowel disease diagnosis.
While testifying at the evidentiary hearing before the ALJ, Plaintiff described the cleanup
procedure she follows with an incontinence episode. This clean up routine involves either
a bidet or a shower. Plaintiff estimated that cleanup takes anywhere between five and
fifteen minutes, depending on the severity of the accident. Half of the time when Plaintiff
experiences an incontinence episode, she reports that clean up requires a shower. Plaintiff
specifically remarked that she is unsure she would be able to cleanup safely in a standard
work bathroom with only a sink and toilet.
When explaining his RFC determination, it appears as though the ALJ only
considered Plaintiff’s “pain and discomfort,” and it is questionable whether he
considered this in the context of Plaintiff’s irritable bowel syndrome. Defendant concedes
that at the very least, the ALJ only considered Plaintiff’s “pain and discomfort” relating
to her irritable bowel syndrome diagnosis. (Doc. 26, p. 5-6). After recounting the facts, the
ALJ determined the Plaintiff’s RFC, as follows:
Based on the foregoing, the undersigned finds the claimant has the above
residual functional capacity assessment and is capable of performing work
at the light exertional level as her objective medical findings, including
imaging and physical examinations during the relevant period are
generally normal, with normal and unassisted gait, normal sensation,
normal reflexes, mostly normal range of motion except in her lumbar spine
and right thumb, and normal muscle strength (B6F; B10F; B11F; B12F).
Despite the claimant’s relatively normal objective findings, out of an
abundance of caution and in consideration for the claimant complaints of
body and joint pain, the undersigned limits the claimant to never climbing
ladders, ropes, or scaffolds; only occasionally climbing ramps and stairs;
and only occasionally stooping, kneeling, crouching, and crawling as the
claimant alleged severe physical problems (Hearing Testimony; B6F; B10F;
B11F; B12F).) Additionally, to prevent further spinal injury and in
consideration of the claimant’s reports of syncope and vision problems, the
undersigned finds that the claimant must avoid exposure to whole body
vibration, unprotected heights, or unprotected moving machinery (B6F;
B10F; B11F; B12F). Further, in consideration of the claimant’s generalized
anxiety disorder, major depressive disorder, and PTSD the claimant is
limited to performing simple routine tasks in jobs where changes in duties
are the same changes daily, there is no direct interaction with the general
public, and there is only occasional interaction with co-workers and
supervisors. These limitations adequately accommodate her mental health
impairments, as the claimant’s mental health treatment was conservative,
and she has not sought or required inpatient or emergency mental health
treatment during the relevant period. Additionally, her mental status
exams were predominately normal and generally show normal mood and
affect, normal thought content with no hallucinations or delusions,
appropriate thought processes, and normal fund of knowledge (B7F/56, 59,
64, 73; B9F; B11F/5, 13; B12F/6).
(Doc. 15, Exh. 2, p. 68-69).
Plaintiff correctly points out that the ALJ parsed out a specific RFC analysis for
each severe medical condition Plaintiff experienced. (Doc. 20, p. 12). However, he did not
do so for Plaintiff’s irritable bowel syndrome and her related fecal incontinence.
Moreover, even if the ALJ did mean to include Plaintiff’s irritable bowel syndrome
diagnosis in the category of “body and joint pain,” he did not account for plaintiff’s need
for ready access to the restroom and time off task, that necessarily accompanies the fecal
incontinence associated with her irritable bowel syndrome diagnosis.
Relatedly, the ALJ also did not assess Plaintiff’s possible additional absenteeism
due to fetal incontinence accidents. The VE, Ms. Susan Shea, testified that “[a]bsenteeism
would be, if there were two or more days per month of absenteeism on an ongoing basis,
the individual would likely be terminated.” During the evidentiary hearing, Plaintiff’s
attorney asked “if an individual were to show up late or leave early by at least one hour
in time, would that be considered an absence?” Ms. Shea responded that it would be. This
question was probably speaking to instances where Plaintiff would be required to go
home to shower if she experienced a severe incontinence episode while at work. If
Plaintiff experienced more than two of these instances in a month, based on the VE’s
testimony she would be let go. The ALJ did not consult the record to determine how
many severe episodes per month Plaintiff experiences to ascertain whether Plaintiff was
employable in light of this limitation.
Given that the ALJ did not consider these specific circumstances in relation to
Plaintiff’s irritable bowel disease, the Court remands this case to the Commissioner for
rehearing consistent with this order. As the Court has found that the ALJ committed error
regarding Plaintiff's complaints and symptoms that requires remand, the Court need not
address Plaintiff's remaining argument. The Court wishes to stress that this
Memorandum and Order should not be construed as an indication that the Court
believes Plaintiff was disabled during the relevant period or that she should be
awarded benefits. On the contrary, the Court has not formed any opinions in that
regard and leaves those issues to be determined by the Commissioner after further
proceedings.
CONCLUSION
The Commissioner’s final decision denying Plaintiff's application for social
security disability benefits is REVERSED and REMANDED to the Commissioner for
rehearing and consideration of the evidence, pursuant to sentence four of 42 U.S.C. §
405(g).
IT IS SO ORDERED.
DATED: March 27, 2024. Bites by
©. Sse Date: 2024.03.27
14:56:47 -05'00'
GILBERTC.SISON
United States Magistrate Judge
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