Machowski v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MICHELLE K. MACHOWSKI, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:19-CV-350-JPK

)

ANDREW M. SAUL, )

Commissioner of Social Security )

Administration, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Complaint [DE 1], filed on September 18, 2019, and

Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner of Social Security

[DE 13]. Plaintiff requests that the June 2019 decision of the Administrative Law Judge denying

her claim for disability insurance benefits be reversed and remanded for an award of benefits or

further proceedings. Defendant filed a Memorandum in Support of Commissioner’s Decision

[DE 14], and Plaintiff filed a Reply to Defendant’s Response [DE 17]. For the following reasons,

the Court remands this matter for further administrative proceedings.

PROCEDURAL BACKGROUND

On March 25, 2013, Plaintiff filed an application for disability insurance benefits, alleging

disability beginning December 7, 2011, due to extreme pain, degenerative disc disease, multiple

cervical fusions, headaches, anxiety, arthritis, gastrointestinal reflux disease (GERD), and bladder

conditions. (AR 19, 203).1 The application was denied initially and on reconsideration (AR 87-

114), after which Plaintiff requested a hearing which was held before an Administrative Law Judge

1 Page numbers in the Administrative Record (AR) refer to the page numbers assigned by the filer, which are found

on the lower right corner of the page, and not the page numbers assigned by the Court’s CM/ECF system.

on August 19, 2015. (AR 42, 128-29). Following an unfavorable hearing decision on September

25, 2015 (AR 19-36), and the Appeals Council’s denial of review on November 21, 2016 (AR 1-3),

Plaintiff appealed to the Federal District Court in the Northern District of Illinois. (AR 1194-95).

Pursuant to an agreed motion, that court remanded Plaintiff’s case for further proceedings in the

agency on November 8, 2017. (AR 1198-1201). A new hearing was then held before a different

Administrative Law Judge (ALJ) on December 12, 2018. (AR 1077-1150). On June 18, 2019, this

ALJ issued a partially favorable decision, making the following findings:2

1. The claimant last met the insured status requirements of the Social Security

Act through December 31, 2018.

2. The claimant has not engaged in substantial gainful activity since December

7, 2011, the date the claimant became disabled.

3. From December 7, 2011 through January 28, 2014, the period during which

the claimant was under a disability, the claimant had the following severe

impairments: laminectomy syndrome secondary to cervical laminectomy;

multilevel degenerative disc disease, cervical spine; and spondylosis, cervical

spine.

4. From December 7, 2011 through January 28, 2014, the claimant did not

have an impairment or combination of impairments that met or medically equaled

the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,

Appendix 1.

5. [F]rom December 7, 2011 through January 28, 2014, the claimant had the

residual functional capacity to perform sedentary work as defined in 20 CFR

404.1567(a) with additional non-exertional limitations. The claimant could:

 Occasionally lift a maximum of 10 pounds;

 Frequently lift and/or carry less than 10 pounds;

 Walk and/or stand for about 2 hours total out of an 8-hour workday;

 Sit for about 6 hours out of an 8-hour workday; and

 Push and/or pull to include operation of hand/or foot controls with the

bilateral upper and lower extremities as restricted by the limitations on

lifting and/or carrying.

2 These findings quote the bolded findings throughout the ALJ’s decision. Internal citations to the Code of Federal

Regulations are omitted.

Additionally, the claimant is capable of applying commonsense understanding to

carry out instructions furnished in written, oral or diagrammatic form. She can deal

with problems involving several concrete variables in or from standardized

situations. She can add, subtract, multiply, and divide all units of measure, with like

common and decimal fractions. She can compute ratio, rate, and percent. She can

draw and interpret bar graphs, and can perform arithmetic calculations involving

all American money units. She can read a variety of novels, magazines, atlases, and

encyclopedias. She can read safety rules, instructions in the use and maintenance

of shop tools and equipment, and methods and procedures in mechanical drawing

and layout work.

However, even with these limitations, during the period from December 7, 2011

through January 28, 2014, taking into consideration the time necessary for post-

surgical recovery and rehabilitation, as well [as] the claimant’s pain complaints, the

claimant could not have sustained the requirements of full-time employment.

6. From December 7, 2011 through January 28, 2014, the claimant was unable

to perform any past relevant work.

7. The claimant was a younger individual age 18-44, on the established

disability onset date.

8. The claimant has at least a high school education and is able to communicate

in English.

9. The claimant’s acquired job skills do not transfer to other occupations

within the residual functional capacity defined above.

10. From December 7, 2011 through January 28, 2014, considering the

claimant’s age, education, work experience, and residual functional capacity, there

were no jobs that existed in significant numbers in the national economy that the

claimant could have performed.

11. The claimant was under a disability, as defined by the Social security Act,

from December 7, 2011 through January 28, 2014.

12. The claimant has not developed any new impairment or impairments since

January 29, 2014, the date the claimant’s disability ended. Thus, the claimant’s

current severe impairment is the same as that present from December 7, 2011

through January 28, 2014.

13. Beginning January 29, 2014, the claimant has not had an impairment or

combination of impairments that meets or medically equals the severity of one of

the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1.

14. Medical improvement occurred as of January 29, 2014, the date the

claimant’s disability ended.

15. The medical improvement that has occurred is related to the ability to work

because there has been an increase in the claimant’s residual functional capacity.

16. [B]eginning January 29, 2014, the claimant has had the residual functional

capacity to perform sedentary work as defined in 20 CFR 404.1567(a) with

additional non-exertional limitations. The claimant can:

 Occasionally lift a maximum of 10 pounds;

 Frequently lift and/or carry less than 10 pounds;

 Walk and/or stand for about 2 hours total out of an 8-hour workday;

 Sit for about 6 hours out of an 8-hour workday; and

 Push and/or pull to include operation of hand/or foot controls with the

bilateral upper and lower extremities as restricted by the limitations on

lifting and/or carrying.

Additionally, the claimant is capable of applying commonsense understanding to

carry out instructions furnished in written, oral, or diagrammatic form. She can deal

with problems involving several concrete variables in or from standardized

situations. She can add, subtract, multiply, and divide all units of measure, with like

common and decimal fractions. She can compute ratio, rate, and percent. She can

draw and interpret bar graphs, and can perform arithmetic calculations involving

all American monetary units. She can read a variety of novels, magazines, atlases,

and encyclopedias. She can read safety rules, instructions in the use and

maintenance of shop tools and equipment, and methods and procedures in

mechanical drawing and layout work.

17. Beginning January 29, 2014, the claimant has been capable of performing

past relevant work as [a] hospital administration clerk. This work does not require

the performance of work-related activities precluded by the claimant’s current

residual functional capacity.

18. The Claimant’s disability ended January 29, 2014, and the claimant has not

become disabled again since that date.

(AR 1045-68).

On September 18, 2019, Plaintiff filed this civil action seeking review of the ALJ’s June

2018 decision pursuant to 42 U.S.C. § 405(g). (ECF No. 1). The parties thereafter filed forms

consenting to have this case assigned to a United States Magistrate Judge to conduct all further

proceedings and to order the entry of a final judgment in this case. (ECF No. 10). This Court

therefore has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C. § 405(g).

STANDARD OF REVIEW

The Social Security Act authorizes judicial review of the agency’s final decision. 42 U.S.C.

§ 405(g). The question before the Court is not whether the claimant is in fact disabled, but whether

the ALJ’s decision “applies the correct legal standard and is supported by substantial evidence.”

Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017); 42 U.S.C. § 405(g). Under § 405(g), the

Court must accept the Commissioner’s factual findings as conclusive if they are supported by

substantial evidence, which is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014)

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

The Court reviews the entire administrative record but does not re-weigh the evidence,

resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See McKinzey v. Astrue,

641 F.3d 884, 890 (7th Cir. 2011) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th

Cir. 2003)). However, “if the Commissioner commits an error of law,” the Court may reverse the

decision “without regard to the volume of evidence in support of the factual findings.” White v.

Apfel, 167 F.3d 369, 373 (7th Cir. 1999). At a minimum, an ALJ must articulate his analysis of the

evidence to allow the reviewing court to trace the path of his reasoning and be assured that the

ALJ considered the important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002).

The ALJ also has a basic obligation to develop a full and fair record, and “must build an accurate

and logical bridge between the evidence and the result to afford the claimant meaningful judicial

review of the administrative findings.” Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014).

DISABILITY STANDARD

To be eligible for disability benefits, a claimant must establish that she suffers from a

“disability,” which is defined as an inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment that can be expected to result

in death or that 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). The ALJ follows a five-step inquiry to determine

whether a claimant is disabled: (1) whether the claimant has engaged in substantial gainful activity

since the alleged onset of disability, (2) whether the claimant has a medically determinable

impairment or combination of impairments that is severe, (3) whether the claimant’s impairment

or combination of impairments meets or medically equals the criteria of any presumptively

disabling impairment listed in the regulations, (4) if the claimant does not meet a listing, whether

she is unable to perform her past relevant work, and (5) if the claimant is unable to perform past

relevant work, whether she is unable to perform any work in the national economy. See 20 C.F.R.

§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).

Prior to step four, the ALJ determines the claimant’s residual functional capacity (RFC),

which “is an administrative assessment of what work-related activities an individual can perform

despite her limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). An affirmative

answer at either step three or step five leads to a finding of disability. Briscoe ex rel. Taylor v.

Barnhart, 524 F.3d 345, 352 (7th Cir. 2005); 20 C.F.R. § 404.1520(a)(4). The claimant bears the

burden of proving steps one through four, whereas the burden at step five is on the ALJ. Zurawski

v. Halter, 245 F.3d 881, 885-86 (7th Cir. 2001).

ANALYSIS

Plaintiff asserts three grounds for reversal of the ALJ’s June 2019 decision. She contends

the ALJ: (1) did not adequately support his finding that Plaintiff experienced medical improvement

as of January 29, 2014; (2) did not properly evaluate her RFC; and (3) incorrectly assessed her

subjective allegations. (P’s Brief 4-23, ECF No. 13). The Court addresses each argument in turn.

I. Medical Improvement

Among other impairments, Plaintiff’s medical record shows a history of problems with her

cervical spine for which she underwent four surgeries: an attempted cervical fusion at C3-4 and

C4-5 in March 2003, which was redone in December 2004, followed by an attempted fusion at

C6-7 in March 2010, which was also redone in December 2011. (AR 1052-53, 1941). Given this

surgical history, the ALJ found Plaintiff limited to sedentary work with certain non-exertional

limitations from December 7, 2011 through January 28, 2014, and that she still “could not have

sustained the requirements of full-time employment,” when “taking into consideration the time

necessary for post-surgical recovery and rehabilitation, as well [as] the claimant’s pain

complaints.” (AR 1054-55). As of January 29, 2014, however, the ALJ found that Plaintiff

experienced medical improvement sufficient to allow full-time sedentary work with the same non-

exertional limitations. (AR 1058-59). Plaintiff asserts two errors in this determination: failure to

address additional physical limitations included in the medical opinions relied upon to find

improvement, and failure to address Plaintiff’s continuing pain after her supposed improvement.

(P’s Brief at 4-10, ECF No. 13). The Court agrees that remand is required on both issues.

A. The ALJ’s Reliance on the Opinions of Drs. Sergent and Berezovski

Plaintiff first argues that the ALJ based his medical improvement determination on the

opinions of chiropractor Dr. Jeffrey Sergent and physician Dr. Roman Berezovski, but “omitted

significant restrictions opined to by those doctors, including sitting, grasping, and

manipulative limitations, from the medical improvement analysis and RFC assessment.” (P’s Brief

at 4-5, ECF No. 13). According to Plaintiff, this error was not harmless, “for if the ALJ had

properly incorporated all limitations opined to by the medical opinions the ALJ gave significant

weight to (AR 1066), the ALJ likely would have found that Ms. Machowski was in fact more

limited after January 29, 2014 by virtue of the myriad additional limitations opined to by Drs.

Sergent and Berezovski.” (P’s Brief at 9, ECF No. 13). Specifically, Plaintiff contends, “she would

have been limited to sitting occasionally (or, for 1/3 of the workday) with highly limited postural

and manipulative abilities” (including no simple grasping on the left; no firm grasping, fine

manipulation, or keyboarding bilaterally; negligible reaching above shoulder level; and no

looking down for more than 15 minutes), all of which “suggest a more diminished RFC than

the ALJ found during the closed period of disability.” (Id. at 2, 4-5, 9-10, ECF No. 13 (citing

AR 999-1001, 1021-23)).

The Commissioner does not dispute that Drs. Sergent and Berezovski included such

additional limitations in their opinions. (D’s Mem. at 11, ECF No. 14). Both sides also agree that

the ALJ placed “significant weight” on the opinions of these two physicians when determining

that Plaintiff’s condition had improved sufficiently to allow full-time sedentary work, and that a

determination of medical improvement “must be based on changes (improvement) in the

symptoms, signs and/or laboratory findings associated with a claimant’s impairments.” (P’s Brief

at 5, 9, ECF No. 13 (citing 20 C.F.R. § 404.1594(b)(1)); D’s Mem. at 3, 10, ECF No. 14 (same)).

Yet the Commissioner defends the ALJ’s failure to address the additional sitting, reaching,

grasping, and manipulative limitations opined by Drs. Sergent and Berezovski because “(whether

the ALJ ‘ignored’ them or not), both doctors ultimately opined that Plaintiff was capable of

sedentary work, even with the limitations to which Plaintiff refers.” (D’s Mem. at 11, ECF No.

14). But this argument fails to explain (as does the ALJ’s decision) how the ALJ found medical

improvement compared to Plaintiff’s prior RFC during the period of closed disability based on

two medical opinions that endorsed additional physical limitations omitted from that prior RFC.

And while the ALJ can certainly accept part of a physician’s opinion and properly reject other

parts of that same opinion, the ALJ here did not even address the parts of either physician’s opinion

that would have limited the RFC. This was not only impermissible “cherry picking” of evidence

that supported the ALJ’s conclusion while ignoring evidence that could undercut that conclusion,

it also failed to draw a logical bridge to support the ALJ’s decision in the event he actually

considered that evidence and simply failed to offer reasons for rejecting it. See Martin v. Saul, 950

F.3d 369, 375 (7th Cir. 2020) (ALJ improperly credited statements in medical opinion “that

support[ed] a finding of non-disability” but “ignored others making plain that [claimant] had

serious neck and back problems”); Beardsley, 758 F.3d at 837 (ALJ “must build an accurate and

logical bridge between the evidence and the result to afford the claimant meaningful judicial

review of the administrative findings.”).3

The ALJ’s significant reliance on the opinions of Drs. Sergent and Berezovski warrants

further explanation in other respects as well. While both physicians indicated some capacity for

sedentary activity (under “Restrictions and Limitations”), neither stated an ability for full-time

3 Lacking such explanation in the decision, the Commissioner notes that the ALJ rejected Plaintiff’s claims of handgrip

weakness based on a May 2014 examination indicating symmetric 4/5 strength at the bilateral deltoids, triceps, and

finger extensors, and 5/5 strength at the bilateral biceps and finger flexors. (D’s Mem. at 22, ECF No. 14 (citing

AR 994, 1062)). But while the ALJ may have intended to reject the manipulative limitations endorsed by Drs. Sergent

and Berezovski for this reason – along with similar manipulative limitations endorsed by the medical expert (Dr. Allan

Levine) of only frequent handling and fingering, occasional overhead reaching, and no forceful grasping (AR 1948)

– the decision does not say that, and the Court’s review “is confined to the rationales offered by the ALJ.” Shauger v.

Astrue, 675 F.3d 690, 695-96 (7th Cir. 2012). Nor would such reliance on Plaintiff’s hand strength measurements

address her chiropractor’s explanation that Plaintiff had good initial upper extremity strength, but pain would cause

her to become weak and stop. (AR 664).

sedentary work, and in fact, both stated that Plaintiff was capable of sitting only “occasionally”

(AR 1000-01, 1022-23), which agency regulations define as “very little up to one- third of the

time, and would generally total no more than about 2 hours of an 8-hour workday.” See Noonan v.

Saul, 835 F. App’x 877, 880 (7th Cir. 2020) (quoting SSR 96-9p, 1996 WL 374185, at *3 (July 2,

1996)). Neither the ALJ nor the Commissioner have explained how such a tolerance for occasional

sitting supports the ALJ’s determination that Plaintiff can sit “for about six hours out of an 8-hour

workday.” (AR 1058). See also SSR 96-9p, 1996 WL 374185, at *3 (sedentary work “would

generally total about 6 hours out of an 8-hour workday” of sitting). Nor do the ALJ’s decision or

Commissioner explain how the opinions of Drs. Sergent and Berezovski demonstrate any other

substantial improvement as of January 29, 2014, when both physicians had treatment relationships

with Plaintiff that spanned back to her earlier period of disability (Dr. Sergent from April 2012,

and Dr. Berezovski from November 2013), and both indicated that Plaintiff’s condition was

“unchanged” and “ongoing” or “possibly permanent” as of January 28, 2014, or later. (AR 253,

641-43, 1000-01, 1021-23).

For these reasons, the Court agrees with Plaintiff that remand is required for

reconsideration and a clearer explanation of the ALJ’s determination of medical improvement

as of January 29, 2014, particularly in light of the additional aspects of the opinions of Drs.

Sergent and Berezovski discussed above which the ALJ’s June 2019 decision failed to address.

See Mulligan v. Astrue, 336 F. App’x 571, 577 (7th Cir. 2009) (remanding for reconsideration of

medical improvement determination where medical opinion regarding ability to work relied upon

was “more equivocal” than ALJ suggested). While this evidence may not be sufficient to require

a finding of disability or even a different date of medical improvement, it is necessary for the

ALJ to address any additional limitations recommended by Drs. Sergent and Berezovski that were

not included in Plaintiff’s past or present RFC, and any other evidence related to those limitations,

and explain whether and why that evidence indicates any improvement (or lack thereof), as

compared to Plaintiff’s condition during the closed period of disability. See D’s Mem. at 4-5, ECF

No. 13 (“When, as here, the ALJ finds the claimant disabled for a closed period in the same

decision in which he finds medical improvement, the severity of the claimant’s current medical

condition is compared to the severity of the condition as of the disability onset date.”) (citing

Lymperopulos v. Astrue, No. 09 C 1388, 2010 WL 960340, at *7 (N.D. Ill. March 10, 2010));

see also Koslow ex rel. Koslow v. Astrue, No. 2:08-cv-159, 2009 WL 1457003, at *11 (N. D. Ind.

May 22, 2009) (same).

B. Plaintiff’s Continuing Pain After The January 2014 Improvement Date

Plaintiff’s second challenge to the ALJ’s medical improvement determination questions

the difference between the RFC determined for her period of disability and the RFC determined

as of January 29, 2014. As noted above, for the period of disability, the ALJ found Plaintiff “could

not have sustained the requirements of full-time employment,” when “taking into consideration

the time necessary for post-surgical recovery and rehabilitation, as well [as] the claimant’s pain

complaints,” but this limitation was omitted from her RFC after January 2014. (AR 1055, 1058-

59). Plaintiff argues the ALJ “acknowledged throughout the decision that [Plaintiff] suffered pain

after January 29, 2014,” but “did not explain why [her] pain complaints, which are consistently

documented in the record both before and after January 2014, reflected medical improvement to

the extent that she could work after that date but not prior to it.” (P’s Brief at 6, ECF No. 13).

The Commissioner similarly acknowledges that Plaintiff continued to complain of neck

pain after the determined medical improvement date of January 29, 2014, including complaints of

10/10 neck pain in March 2014 (AR 984); moderate neck, arm, and shoulder pain for which opiates

were prescribed in May 2014 (AR 991, 993-94); constant neck, back, and arm pain in March and

April 2015 (AR 702-03, 707-11); back, neck, and head pain reported to an emergency room

following a slip and fall down some stairs in December 2015 (AR 1433); and continuing

neck/cervical pain with reduced range of motion during an office visit two days later (AR 1644-

47). (D’s Mem. at 5-7, ECF No. 14). But the Commissioner argues the ALJ considered this

evidence and discounted these pain complaints for varying reasons, such as due to injury, the

unusual activity and stress of packing for a move, or alleviated by therapy or exacerbated by a

failure to follow through with therapy. (Id. (citing AR 1059-61, 1064, 1067)). Thus, according to

the Commissioner, the ALJ reasonably assessed this evidence, and this Court may not reweigh it.

(Id. at 5). But as the Commissioner also acknowledges, the ALJ’s determination that Plaintiff’s

rehabilitation and pain complaints improved sufficiently to allow full-time sedentary work by late

January 2014 was grounded not only in his assessment of this evidence.

Rather, as the Commissioner recognizes, the ALJ acknowledged that Plaintiff “continued

to seek treatment for pain after January 28, 2014,” but relied on a statement from Dr. Sergent on

that date to conclude that “Plaintiff was capable of performing sedentary exertional work.” (Id. at

4-5 (citing AR 999-1001, 1058)). And while the ALJ further noted the opinion of another

chiropractor (Dr. Thompson) that she “would probably need ongoing chiropractic treatment due

to lack of cervical motion, and that she would probably never be pain free,” the ALJ “stated that

the limitations of sedentary work accommodated for the stress that more frequent walking and/or

standing would impose on Plaintiff’s neck and back.” (Id. at 6-7 (citing AR 702, 1064, 1067)).

The Court has explained the shortcomings of these findings, specifically that Dr. Sergent’s opinion

included additional limitations that the ALJ failed to address, including a sitting limitation that

may have impeded Plaintiff’s ability to perform full-time sedentary work. See supra Part A. Drs.

Sergent and Berezovsky also opined that Plaintiff’s condition was unchanged, she continued to

experience pain (moderate to severe pain, according to Dr. Berezovsky), reduction of pain was a

continuing goal, and her symptoms were ongoing, if not permanent. (AR 999-1001, 1021-23).

Thus, while the ALJ was certainly permitted to assess Plaintiff’s ongoing pain complaints

to the extent supported by substantial evidence, the determination that those complaints and her

post-surgical recovery and rehabilitation had improved sufficiently for full-time sedentary work

also relied on medical opinions that the ALJ failed to consider in important respects. The Court

therefore agrees with Plaintiff that remand is required for reconsideration of that determination in

light of Plaintiff’s full medical record, including the complete opinions of Drs. Sergent and

Berezovsky. But again, this is not to say that these opinions require a finding of disability or a

different medical improvement date, only that such determinations must also address the portions

of these opinions that contain contrary information. See Mulligan, 336 F. App’x at 577.

II. The ALJ’s RFC Determination

Plaintiff next challenges the ALJ’s physical and mental RFC determinations and the

absence of any RFC limitations to accommodate Plaintiff’s alleged need for multiple bathroom

breaks. (P’s Brief at 10-18, ECF No. 13). For the following reasons, the Court agrees with the first

two arguments, and partly agrees with the third.

A. Plaintiff’s Physical RFC

Regarding Plaintiff’s physical RFC, the Court agrees that, along with their potential

impact on the issue of medical improvement, the additional limitations discussed in the opinions

of Drs. Sergent and Berezovsky must be considered also in relation to Plaintiff’s physical RFC.

See Crump v. Saul, 932 F.3d 567, 570 (7th Cir. 2019) (“RFC assessment must incorporate all of

the limitations supported by the medical record” (quoting Varga v. Colvin, 794 F.3d 809, 813 (7th

Cir. 2015)). Remand is therefore required to reconsider Plaintiff’s physical RFC in light of all

additional limitations discussed in those opinions – including relating to sitting, grasping, handling

and fingering, reaching, looking down, and any additional postural limitations (AR 999-1001,

1021-23) – and their impact (if any) on Plaintiff’s ability to perform her past relevant work or other

sedentary work. To the extent the ALJ concludes these limitations do not require accommodation

in Plaintiff’s RFC, he must explain why other parts of Drs. Sergent’s and Berezovsky’s opinions

were relied upon while these limitations, suggested by the very same physicians, were rejected.

And to the extent Plaintiff’s RFC is modified to accommodate any such limitations, the ALJ must

also apprise any vocational expert relied upon of such modifications. See Crump, 932 F.3d at 570

(“the ALJ must ensure that the VE is ‘apprised fully of the claimant’s limitations’ so that the VE

can exclude those jobs that the claimant would be unable to perform” (quoting Moreno v. Berryhill,

882 F.3d 722, 730 (7th Cir. 2018)).

B. Plaintiff’s Alleged Need for Multiple Bathroom Breaks

Plaintiff next argues that her RFC requires accommodation for her alleged bathroom needs

throughout the workday due to her chronic interstitial cystitis, which causes urinary frequency and

urgency. (P’s Brief at 11-12, ECF No. 13). The Commissioner counters that the ALJ considered

this condition, and “noted that the record did not clearly show that Plaintiff sought any treatment

for this problem, and symptoms of bladder urgency or increased frequency [in] urination were not

documented.” (D’s Mem. at 13-14, ECF No. 14 (citing AR 1048)). Thus, according to the

Commissioner, “the ALJ properly determined that Plaintiff’s bladder impairment was not a severe

impairment, and properly did not include such limitations in the RFC.” (Id.). But the ALJ “must

evaluate all limitations that arise from medically determinable impairments, even those that are

not severe, and may not dismiss a line of evidence contrary to the ruling.” Stage v. Colvin, 812

F.3d 1121, 1125 (7th Cir. 2016) (quoting Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009)).

And while the ALJ found Plaintiff’s interstitial cystitis to be non-severe, he nevertheless

acknowledged it was “a chronic problem that can come and go.” (AR 1063). Thus, regardless of

whether the impairment was severe, the ALJ was obliged to consider any limitations related to

Plaintiff’s interstitial cystitis in the RFC analysis.

The ALJ’s observation that Plaintiff did not seek “treatment for this problem specifically”

apart from her other impairments (AR 1063) does not alter this conclusion. For one thing, several

medical records indicate her complaints of urinary frequency or urgency (AR 412, 621, 878, 1679),

and Plaintiff testified that these issues sometimes caused her to require bathroom breaks up to

every two hours or even more frequently. (AR 1124-25). While this evidence may not necessarily

require an accommodation in Plaintiff’s RFC, the ALJ should have explained whether and why he

rejected it and made a clear finding based on substantial evidence as to how frequently Plaintiff

would require bathroom breaks during the workday. See Loxton v. Saul, 1:19-cv-484, 2020 WL

6194112, at *3 (N.D. Ind. Oct. 22, 2020) (“that Plaintiff sought limited treatment” did not “call

into question Plaintiff’s undisputed testimony regarding her restroom needs” or “diminish the need

for restroom breaks in the RFC”).4 Particularly in light of the vocational expert’s testimony that

additional and/or unscheduled bathroom breaks could limit the jobs Plaintiff is able to perform

(AR 1144-47), remand is required for this reason as well. See Seals v. Berryhill, No. 16-cv-1975,

2017 WL 2416293, at *5 (S.D. Ind. Jun. 5, 2017) (remanding where ALJ failed to confront

evidence regarding claimant’s urinary frequency, given vocational expert testimony that being off-

task more than 20%, or bathroom needs five minutes per hour, might prevent employment).

4 See also Katherine B. v. Saul, No. 2:19-cv-257, 2020 WL 2786832, at *2 (N.D. Ind. May 29, 2020) (“The Seventh

Circuit has held that an ALJ is in error where she fails to make a finding regarding the required length or frequency

of bathroom breaks in cases where that may affect the claimant’s ability to maintain full time work.”) (citing Sikorski

v. Berryhill, 690 F. App’x 429, 433 (7th Cir. 2017)).

C. Plaintiff’s Mental RFC

Plaintiff’s third RFC challenge complains that the ALJ found Plaintiff “had mild

limitations in understanding, remembering, or applying information and mild limitations in

concentrating, persisting, or maintaining pace,” but the ALJ “did not explain how Ms.

Machowski’s mild concentration difficulties actually limited her ability to function in the

workplace,” and “the mental limitations in the RFC . . . were insufficient to account for Ms.

Machowski’s mild concentration difficulties.” (P’s Brief at 13-15, ECF No. 13). According to

Plaintiff, “an ALJ errs by finding that a non-severe impairment produces mild concentration

restrictions but then omits any associated functional limitations from the RFC assessment.” (Id. at

14). And this asserted error was not harmless, Plaintiff argues, because “the vocational expert

testified that a restriction to simple, routine tasks would preclude the performance of Ms.

Machowski’s past relevant work,” and the ALJ’s decision “does not contain an alternative Step

Five finding regarding other jobs Ms. Machowski could perform.” (Id. at 17 (citing AR 1067-68,

1141-42)). The Court agrees only in part.

As the Commissioner persuasively argues, the ALJ identified substantial evidence to

support and explain his findings that Plaintiff’s mental impairments are non-severe and cause only

minimal concentration difficulties. (D’s Mem. at 17, ECF No. 14). As the Commissioner notes,

among other evidence, the ALJ cited Plaintiff’s abilities to handle money, drive, and attend

doctor’s appointments on her own, along with her apparent ability to participate and maintain

concentration during the administrative hearing. (Id. at 16-20 (citing AR 236-38, 1051, 1064-65)).

Contrary to Plaintiff’s arguments, these were substantial reasons for the ALJ to find that Plaintiff

has only mild concentration limitations. See, e.g., Delong v. Saul, -- F. App’x --, 2021 WL 387511,

at *5 (7th Cir. Feb. 3, 2021) (unimpaired attention and concentration during routine medical

appointments and ability to drive son to school supported rejection of prior ALJ’s finding of

moderate concentration limitations and supported finding of mild concentration limitations).5 That

said, even mild concentration limitations can warrant one or more accommodative RFC

limitations. See Hall v. Saul, No. 3:19-cv-354, 2020 WL 2507932, at *4 (N.D. Ind. May 15, 2020)

(“It may well be that Hall’s mild CCP limitation would not impact her functional ability to work

as an accountant. But if that is the case, the ALJ needed to say so. A reviewing court should not

be left to guess.”). Thus, having found mild mental limitations, the ALJ was obliged to

accommodate them in Plaintiff’s RFC or “satisfactorily explain why they were not included.”

Gajewski v. Saul, No. 2:19-cv-185, 2020 WL 4932538, at *3 (N.D. Ind. Aug 24, 2020).

Here, while the ALJ expressly found that Plaintiff required no limitation to simple work

(AR 1064), the decision fails to make clear whether any other accommodations of Plaintiff’s mild

mental limitations (such as breaks during the day or limited hours of sustained concentration, as

in Delong) were required. See 2021 WL 387511, at *5. Instead, the ALJ included several cognitive

functions in the RFC, including abilities to: (1) apply “commonsense understanding to carry out

instructions furnished in written, oral, or diagrammatic form”; (2) “deal with problems involving

several concrete variables in or from standardized situations”; (3) “add, subtract, multiply, and

divide all units of measure, with like common and decimal fractions”; (4) “compute ratio, rate, and

percent;” (5) “draw and interpret bar graphs”; (6) “perform arithmetic calculations involving all

American monetary units”; (7) “read a variety of novels, magazines, atlases, and encyclopedias”;

and (8) “read safety rules, instructions in the use and maintenance of shop tools and equipment,

5 See also Carter v. Colvin, 556 F. App’x 523, 526 (7th Cir. 2014) (ALJ properly considered that claimant “was able

to participate in the hearing closely and fully without being distracted” when assessing concentration limitations);

Yerk v. Colvin, No. 14-C-1216, 2015 WL 1966722, at *11 (E.D. Wis. May 1, 2015) (ALJ properly considered

claimant’s abilities to drive and manage money, and that “he exhibited no problems with concentration or pace during

the consultative exam and appeared to have no difficulties following along at the hearing,” when finding mild

concentration limitations).

and methods and procedures in mechanical drawing and layout work.” (AR 1059, 1064-65). While

the Court acknowledges Plaintiff’s function report admitting she can read, manage money, pay

bills, count change, handle a savings account, and use a checkbook/money order (AR 219-20), the

ALJ neither identified support for the additional cognitive functions recited in the RFC nor

explained his reasons for thinking Plaintiff capable of them. And while the standard of review

applicable here is deferential, the Court “will not ‘scour the record for supportive evidence.’”

Noonan, 835 F. App’x at 880 (quoting Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014)).

Accordingly, the Court agrees that remand is required also for reconsideration of Plaintiff’s

mental RFC, identification of the record support for the cognitive functions recited in the RFC,

and a clearer explanation of whether and why any additional mental limitations are (or are not)

required, including a restriction to simple and routine tasks and/or any other accommodations of

Plaintiff’s mild mental limitations. And again, to the extent any additional mental RFC limitations

are included, the ALJ must also fully apprise any vocational expert relied upon of those additional

limitations. See Crump, 932 F.3d at 570. But this is not to suggest that any additional mental RFC

limitations are required or that the cognitive functions already included in the RFC could not be

supported. The Court concludes only that the ALJ was required to explain and support these

determinations more clearly, and must do so on remand, so that a reviewing court is not “left to

guess” in any subsequent appeal. Hall, 2020 WL 2507932, at *4.

III. Plaintiff’s Remaining Arguments

Plaintiff’s final challenge argues that the ALJ erred in assessing her subjective

complaints by applying an “improper legal standard,” failing to consider whether objective

medical findings from and after January 2014 supported her claimed pain and limitations, and

failing to evaluate fully her claims of negative medication side-effects and need to stay in bed

several days a week. (P’s Brief at 18-23, ECF No. 13). As the case is being remanded for other

reasons, it is unnecessary to consider these arguments in detail; it suffices to say that the ALJ

should “take a fresh look” at these issues on remand along with the other evidence and issues

discussed in this Opinion. See Sikorski, 690 F. App’x at 433 (declining to address “adverse-

credibility finding,” but suggesting ALJ “take a fresh look” at the issue on remand when

reconsidering claimant’s alleged bathroom needs). In so doing, the ALJ should also bear in mind

that Plaintiff’s care for her minor children (AR 1067) is an unreliable basis to discount her claims

of pain and limitations, although there may well be other legitimate reasons for discounting them.

See Stage, 812 F.3d at 1126 (ALJ improperly discounted claimant’s alleged physical limitations

based on ability to care for grandchildren) (citing Seventh Circuit decisions rejecting reliance on

claimant’s ability to care for self and children or other family, including Gentle v. Barnhart, 430

F.3d 865, 867 (7th Cir. 2005) (“Gentle must take care of her children, or else abandon them to

foster care or perhaps her sister, and the choice may impel her to heroic efforts.”)); Brown v.

Colvin, 845 F.3d 247, 253 (7th Cir. 2016) (same); Beardsley, 758 F.3d at 838 (same).6

Plaintiff also asks the Court to reverse and remand for an award of benefits or, in the

alternative, for a new hearing. “Courts have the statutory power to affirm, reverse, or modify the

Social Security Administration’s decision, with or without remanding the case for further

6 To be clear, directing reconsideration of this and other issues relating to Plaintiff’s subjective complaints is not

intended to suggest that the ALJ’s analysis of those claims was wholly flawed or lacking in support. Additionally,

to the extent Plaintiff contends the ALJ’s conclusion that her allegations were “not entirely consistent” with the record

“constitutes reversible legal error” (P’s Brief at 18-20, ECF No. 13), the Court notes that the Seventh Circuit continues

to regard this phrasing as harmless “boilerplate,” so long as the ALJ provides “legitimate reasons for discrediting

the claimant’s testimony.” Lacher v. Saul, 830 F. App’x 476, 478 (7th Cir. 2020); Harris v. Saul, 835 F. App’x 881,

886 (7th Cir. 2020) (“even though the ‘entirely consistent’ language is boilerplate, the ALJ’s recitation of it is

harmless because he described (and applied) the correct standard of whether Harris’s statements about her symptoms

were substantiated by the objective medical evidence and other evidence in the record.”) (citing 20 C.F.R.

§ 404.1529(c)). What matters is that the ALJ correctly considers “whether [Plaintiff’s] statements about her symptoms

were substantiated by the objective medical evidence and other evidence in the record,” as the regulations require.

Harris, 835 F. App’x at 886. The ALJ should simply make clear on remand that this standard has been applied.

proceedings.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011) (citing 42 U.S.C. § 405(g)).

Nonetheless, an award of benefits is appropriate “only if all factual issues involved in the

entitlement determination have been resolved and the resulting record supports only one

conclusion—that the applicant qualifies for disability benefits.” Id. at 415. As explained

throughout this Opinion, remand for further proceedings (not an award of benefits) is required in

this case, as it is not clear on the current record that an award of benefits is required.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS the alternative relief sought in

Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner of Social Security

[DE 13], REVERSES the final decision of the Commissioner of Social Security, and REMANDS

this matter for further proceedings consistent with this Opinion and Order. The Court DIRECTS

the Clerk of Court to ENTER JUDGMENT in favor of Plaintiff against Defendant.

So ORDERED this 15th day of March, 2021.

s/ Joshua P. Kolar

MAGISTRATE JUDGE JOSHUA P. KOLAR

UNITED STATES DISTRICT COURT