The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JUSTIN P.1, Case No. 3:24-cv-214
Plaintiff, Litkovitz, M.J.
vs.
COMMISSIONER OF ORDER
SOCIAL SECURITY,
Defendant.
Plaintiff Justin P. brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for
judicial review of the final decision of the Commissioner of Social Security (Commissioner)
denying plaintiff’s applications for disability insurance benefits (DIB) and supplemental security
income (SSI). This matter is before the Court on plaintiff’s Statement of Errors (Doc. 8), the
Commissioner’s response in opposition (Doc. 11), and plaintiff’s reply (Doc. 12).
I. Procedural Background
Plaintiff protectively filed his applications for DIB and SSI on August 19, 2019, alleging
disability beginning June 6, 2016, due to Crohn’s disease, major depressive disorder, anxiety,
osteoarthritis, adjustment disorder with mixed emotional features, borderline personality traits,
polymyalgia, chronic back pain, osteopenia, and high cholesterol. (Tr. 329-40; see also Tr. 401).
His applications were denied initially and on reconsideration. Plaintiff, through counsel,
requested and was granted a de novo hearing before administrative law judge (ALJ) Heidi
Southern on April 15, 2020. (Tr. 65-96). Plaintiff and a vocational expert (VE) appeared by
1 Pursuant to General Order 22-01, due to significant privacy concerns in social security cases, any opinion, order,
judgment, or other disposition in social security cases in the Southern District of Ohio shall refer to plaintiffs only
by their first names and last initials.
telephone and testified at the ALJ hearing. (Id.). On April 22, 2020, the ALJ issued a decision
denying plaintiff’s applications. (Tr. 157-80). The Appeals Council granted plaintiff’s request
for review and remanded the matter for further proceedings. (Tr. 181-86).
On remand, the claim was returned to ALJ Southern. After a telephone hearing held on
June 7, 2021 (Tr. 38-64), the ALJ issued a decision again denying plaintiff’s applications on July
9, 2021. (Tr. 12-37). This decision became the final decision of the Commissioner when the
Appeals Council denied review on October 26, 2021. (Tr. 1-6).
Plaintiff appealed the denial of his application to this Court. See Justin P. v. Comm’r of
Soc. Sec., No. 3:21-cv-325, 2023 WL 2456854 (S.D. Ohio Mar. 10, 2023). This Court remanded
the matter to the Commissioner for further proceedings, finding that the assessed limitation
“providing that Plaintiff have ‘ready access to a restroom,’ without more, fails to provide
meaningful information about Plaintiff’s work limitations and abilities.” Id. at *3. This Court
found that:
This failure is particularly significant given that both vocational experts testified
that having two additional fifteen-minute breaks outside of the standard break
period would be work preclusive. Thus, even if ALJ Southern did not find
Plaintiff’s Crohn’s disease and colitis symptoms fully credible, she should have
made a specific finding regarding whether these conditions would cause additional
breaks during the workday, since the vocational experts had testified that two
additional fifteen-minute breaks would be work preclusive.
Id. at *4. The Court further determined that “the ALJ failed to resolve the inconsistencies
pertaining to the frequency, duration, and urgency of [p]laintiff’s restroom breaks with the
vocational experts’ testimony . . . [and] failure to do so constitutes reversible error.” Id. Given
the Court’s decision to remand on plaintiff’s first assignment of error, it declined to address
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plaintiff’s challenge concerning the omission of limitations associated with plaintiff’s bilateral
cubital tunnel syndrome. Id.
A third hearing was held on April 16, 2024, with ALJ Gregory G. Kenyon. (Tr. 2569-
2601). On May 21, 2024, the ALJ issued a decision denying plaintiff’s applications. (Tr. 2528-
2567). Plaintiff did not request review by the Appeals Council opting to directly file suit with
this Court.
II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a 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 12 months. 42 U.S.C. §§ 423(d)(1)(A)
(DIB), 1382c(a)(3)(A) (SSI). The impairment must render the claimant unable to engage in the
work previously performed or in any other substantial gainful employment that exists in the
national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment – i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities – the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
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4) If the claimant’s impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant
is disabled.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four
steps of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548
(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to
perform the relevant previous employment, the burden shifts to the Commissioner to show that
the claimant can perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th
Cir. 1999).
B. The Administrative Law Judge’s Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. [Plaintiff] met the insured status requirements of the Social Security Act
through December 31, 2021.
2. [Plaintiff] has not engaged in substantial gainful activity since June 6, 2016, the
alleged onset date (20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq.).
3. [Plaintiff] has the following severe impairments: lumbosacral degenerative disc
disease, mild cervical degenerative disc disease, chronic pain syndrome,
fibromyalgia, degenerative joint disease of the right hip, osteopenia, a history
of a small right inguinal hernia status post repair, a history of bilateral cubital
tunnel syndrome status post release, a history of a rib fracture, Crohn’s disease,
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obesity, depression, and an anxiety disorder (20 C.F.R. §§ 404.1520(c) and
416.920(c)).
4. [Plaintiff] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the [ALJ] finds that [plaintiff]
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) subject to the following limitations: (1) frequent
crouching, crawling, kneeling, stooping, and climbing of ramps and stairs; (2)
no climbing of ladders, ropes, or scaffolds; (3) no work around hazards such as
unprotected heights or dangerous machinery; (4) frequent use of the upper
extremities for reaching, handling, and fingering; (5) limited to jobs in which
he would have immediate access to restroom facilities and the ability to take
two unscheduled five minute restroom breaks per day; (6) simple, routine,
repetitive tasks; (7) occasional superficial contact with co-workers and
supervisors with “superficial contact” defined as being able to receive simple
instructions, ask simple questions, and receive performance appraisals but as
unable to perform more complex social interactions such as persuading other
people or resolving interpersonal conflicts; (8) no public contact; (9) no close
over the shoulder supervision; (10) no fast paced work; (11) no strict production
quotas; and (12) very little, if any, change in the job duties or the work routine
from one day to the next.
6. [Plaintiff] is unable to perform any past relevant work (20 C.F.R. §§ 404.1565
and 416.965).2
7. [Plaintiff] was born [in] . . . 1979 and was 37 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date. (20 C.F.R.
§§ 404.1563 and 416.963).
8. [Plaintiff] has at least a high school education (20 C.F.R. §§ 404.1564 and
416.964).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that [plaintiff] is “not disabled,” whether or not [plaintiff] has transferable job
skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
2 Plaintiff’s past relevant work was as a physical therapist assistant, a medium, skilled position. (Tr. 2558, 2593).
5
10. Considering [plaintiff]’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the [plaintiff] can perform (20 C.F.R. §§ 404.1569,
404.1569(a), 416.969, and 416.969(a)).3
11. [Plaintiff] has not been under a disability, as defined in the Social Security Act,
from June 6, 2016, through the date of this decision (20 C.F.R. §§ 404.1520(g)
and 416.920(g)).
(Tr. 2534-59).
C. Judicial Standard of Review
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner’s findings must stand if they are supported by “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,
587 U.S. 97 (2019) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
Substantial evidence consists of “more than a scintilla of evidence but less than a preponderance.
. . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In deciding whether the
Commissioner’s findings are supported by substantial evidence, the Court considers the record as
a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
3 The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the requirements of representative light,
unskilled occupations such as housekeeping cleaning (175,000 jobs nationally), marker (165,000 jobs nationally), and laundry
worker (19,000 jobs nationally). (Tr. 2559, 2594).
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The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
D. Specific Error
Plaintiff raises two assignments of error, both challenging the ALJ’s residual functional
capacity (RFC) determination. The first involves the ALJ’s assessment of plaintiff’s limitations
from Chron’s disease and colitis: (1) the ALJ failed to resolve the inconsistencies pertaining to
the frequency, duration, and urgency of plaintiff’s restroom breaks with the VE’s testimony; and
(2) the ALJ assessed limitation of “two unscheduled five-minute restroom breaks per day” is
arbitrary. (Doc. 8 at PageID 3100-3102). The second error involves the ALJ’s failure to
incorporate plaintiff’s functional limitations for grasping, fingering, feeling, or handling in his
RFC determination. (Id. at PageID 3102-05). The Commissioner counters the ALJ properly
considered the record as a whole, evaluated the opinion evidence in accordance with the
appropriate regulations, and incorporated the limitations supported by the record into the RFC
finding. (Doc. 11 at PageID 3111-22).
1. RFC Determination and Subjective Symptom Analysis
A claimant’s RFC is an assessment of “the most [a claimant] can still do despite [his]
limitations.” 20 C.F.R. § 404.1545(a)(1).4 A claimant’s RFC assessment must be based on all
4 “The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are identical.” Miller v.
Comm’r of Soc. Sec., No. 3:18-cv-281, 2019 WL 4253867, at *1 n.1 (S.D. Ohio Sept. 9, 2019) (quoting Colvin v.
Barnhart, 475 F.3d 727, 730 (6th Cir. 2007)). For claims filed on or after March 27, 2017, these regulations are
7
the relevant evidence in his case file. (Id.). The governing regulations describe five different
categories of evidence: (1) objective medical evidence, (2) medical opinions, (3) other medical
evidence, (4) evidence from nonmedical sources, and (5) prior administrative medical findings.
20 C.F.R. § 404.1513(a)(1)-(5). With regard to two of these categories—medical opinions and
prior administrative findings—an ALJ is not required to “defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) or prior administrative medical
finding(s), including those from [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a).
The ALJ is charged with the final responsibility in determining a claimant’s RFC. See 20
C.F.R. § 404.1546(c). The ALJ is responsible for assessing a claimant’s RFC based on all of the
relevant medical and other evidence. 20 C.F.R. § 404.1545(a)(3). The ALJ’s decision “cannot
be overturned if substantial evidence, or even a preponderance of the evidence, supports the
claimant’s position, so long as substantial evidence also supports the conclusion reached by the
ALJ.” O’Brien v. Comm’r of Soc. Sec., 819 F. App’x 409, 416 (6th Cir. 2020) (quoting Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003)). The plaintiff “bears the burden of
demonstrating a RFC more restrictive than that determined by the ALJ.” Id. (citing Jordan v.
Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008)).
ALJs must “consider all of the evidence in an individual’s record” and determine whether
the individual is disabled by examining “all of the individual’s symptoms, including pain, and
the extent to which the symptoms can reasonably be accepted as consistent with the objective
medical and other evidence in the individual’s record.” SSR 16-3p, 2016 WL 1119029, at *2.
found at 20 C.F.R. § 404.1520c and 20 C.F.R. § 416.920c, respectively. The Court’s references to DIB regulations
should be read to incorporate the corresponding and identical SSI regulations for purposes of this Order.
8
See Lipanye v. Comm’r of Soc. Sec., 802 F. App’x 165, 171 n.3 (6th Cir. 2020) (citing Dooley v.
Comm’r of Soc. Sec., 656 F. App’x 113, 119 n.1 (6th Cir. 2016)).
A two-step inquiry applies to symptom evaluation. The ALJ first determines if the record
contains objective medical evidence of an underlying medically determinable impairment that
could reasonably be expected to produce the individual’s symptoms. SSR 16-3p, 2016 WL
1119029, at *3; see also 20 C.F.R. § 404.1529(a); Jones, 336 F.3d at 475-76. Step two of
symptom evaluation shifts to the severity of a claimant’s symptoms. The ALJ must consider the
intensity and persistence of the symptoms to determine the extent to which the symptoms limit
an individual’s ability to perform work-related activities. See 20 C.F.R. § 404.1529(a) and (c);
SSR 16-3p, 2016 WL 1119029, at *4. In making this determination, the ALJ will consider the
following:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take
or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of
your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms
(e.g., lying flat on your back, standing for 15 to 20 minutes every hour,
sleeping on a board, etc.); and
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(vii) Other factors concerning your functional limitations and restrictions due to
pain or other symptoms.
20 C.F.R. § 404.1529(c)(3).
An ALJ may not consider only objective medical evidence in determining disability
unless this evidence alone supports a finding of disability. SSR 16-3p, 2016 WL 1119029, at *5
(“If we cannot make a disability determination or decision that is fully favorable based solely on
objective medical evidence, then we carefully consider other evidence in the record in reaching a
conclusion about the intensity, persistence, and limiting effects of an individual’s symptoms.”);
20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and
persistence of your pain or other symptoms or about the effect your symptoms have on your
ability to work solely because the available objective medical evidence does not substantiate
your statements.”). Moreover,
[i]t is . . . not enough for our adjudicators simply to recite the factors described in
the regulations for evaluating symptoms. The determination or decision must
contain specific reasons for the weight given to the individual’s symptoms, be
consistent with and supported by the evidence, and be clearly articulated so the
individual and any subsequent reviewer can assess how the adjudicator evaluated
the individual’s symptoms.
SSR 16-3p, 2016 WL 1119029, at *9. See also Id. at *7 (noting that the ALJ “will discuss the
factors pertinent to the evidence of record”). At the same time, the ALJ is not required to cite or
discuss every factor used to evaluate the consistency of a plaintiff’s description of symptoms
with the record evidence. See White v. Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009).
2. The ALJ’s RFC and Symptom Severity Evaluation is Supported by Substantial
Evidence
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Plaintiff contends the ALJ erred in his symptom severity evaluation by not adequately
accounting for plaintiff’s gastrointestinal symptoms, including “excessive restroom use.” (Doc.
8 at PageID 3100). Plaintiff argues that the included limitation of “two unscheduled five minute
restroom breaks per day” is “arbitrary” (Id. at PageID 3101), and the ALJ “failed to resolve the
inconsistencies pertaining to the duration and urgency of [p]laintiff’s restroom breaks with the
vocational expert’s testimony that not even one additional 10-to-15-minute break would be
tolerated in the workplace.” (Id. at PageID 3101-02; Doc. 12 at PageID 3125).
The Commissioner responds by arguing that the ALJ’s RFC is supported by substantial
evidence and “consistent with the regulatory requirements.” (Doc. 11 at PageID 3116). The
Commissioner points out that the “ALJ specifically considered [plaintiff’s testimony regarding
the frequency of his restroom use] and found the alleged severity not supported by the record.”
(Doc. 11 at PageID 3116). Lastly, the Commissioner argues that plaintiff failed to meet his
burden of proof to show more breaks were necessary to accommodate his gastrointestinal
symptoms. (Id.)
In applying the two-step inquiry into symptom severity evaluation, the ALJ determined
that plaintiff’s Crohn’s disease could reasonably be expected to produce his symptoms. (Tr.
2541). However, the ALJ found plaintiff’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. . . .” (Id.).
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The ALJ considered plaintiff’s hearing testimony relating to his gastrointestinal
symptoms and need for frequent restroom breaks, noting that at plaintiff’s April 2020 hearing,
plaintiff testified:
[H]e had been receiving treatment for Crohn’s disease off and on since he got out
of the Navy, but he had always been taking medication. At its worst, he had seven
bowel movements per day, but he normally had around three or four. Maybe five
days of the month, he had seven bowel movements in a day. His bowel movements
were usually diarrhea, and it typically was worse in the mornings. He sometimes
had urgency, and he has had accidents in the past. He indicated flares occurred
more often than they used to. When he was working, he had flares every three to
five weeks that resulted in taking one to two days off.
(Tr. 2540, citing Tr. 2666-69). The ALJ also considered plaintiff’s June 2021 hearing testimony,
noting that “plaintiff stated he used the restroom three to five times per day and up to seven times
per day, and his restroom breaks could take five to twenty minutes.” (Tr. 2540, citing Tr. 2693-
94). Lastly, the ALJ considered plaintiff’s most recent April 2024 hearing testimony:
The [plaintiff] stated that he has issues with [Crohn’s disease] with diarrhea. He
averaged four to five bowel movements per day, but he could have as many as seven
or eight. He could have five bowel movements before noon. He stated he was
unable to leave the house on bad Crohn’s days.
(Tr. 2541). After considering plaintiff’s testimony, the ALJ found plaintiff’s “[s]ubjective
reports related to his gastrointestinal impairments, along with gastroenterology notes frequently
describing his Crohn’s as mild, does not support the alleged severity or frequency of his
symptoms.” (Tr. 2557).
According to the ALJ’s decision, the primary reason for declining to credit plaintiff’s
testimony concerning the disabling severity of his Crohn’s symptoms, including his statements
about the duration and frequency of his bathroom breaks, was the ALJ’s determination that his
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disease was both mild and well controlled with proper medical care. (Tr. 2557). For example,
the ALJ pointed to evidence in plaintiff’s treatment records indicating that his need for restroom
breaks was not as frequent as he alleged. The ALJ provided a detailed summary of plaintiff’s
gastrointestinal treatment history and subjective complaints relating to restroom breaks,
contrasting those records with plaintiff’s hearing testimony. (See Tr. 2547-50, July 2017: “loose
bowel movements three to four times per day” (Tr. 2547-48, citing Tr. 530); August 2017: “three
to four bowel movements that were loose to formed” (Tr. 2548, citing Tr. 1891); November
2017: “gastroenterology notes reflect that [plaintiff’s] Budesonide helped ‘a bit’ . . . and he was
having three to four bowel movements” (Tr. 2548, citing Tr. 1789); March 2018: “three bowel
movements daily” (Tr. 2548, citing Tr. 1700); July 2018: “[Three weeks prior] he was having
three bowel movements per day that were loose, and he denied any blood . . . now having flaky
semisolid stools one to four times per day” (Tr. 2549, citing 1641); October 2018: “four to five
times per day with urgent diarrhea” but normally “two to three bowel movements per day” (Tr.
2549, citing Tr. 1580); July 2019: “only three bowel movements per day on his worse days” and
“bowel movements were typically loose” (Tr. 2549, citing Tr. 480); March 2021: “two to five
bowel movements daily with no bleeding” (Tr. 2550, citing Tr. 2407); March 2023: “diarrhea
once every other day” (Tr. 2550, citing Tr. 2863); November 2023: “doing well overall with two
to four formed bowel movements daily” (Tr. 2550, citing Tr. 2886)). These medical records
substantially support the ALJ’s finding that the frequency of bowl movements was not as severe
as alleged by plaintiff.
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The ALJ further pointed to evidence in the record indicating that in August 2020,
plaintiff reported “he was doing well with no abdominal pain, nausea, vomiting, or blood in his
stool . . . [with only] occasional bad days with four to five bowel movements that may be loose.”
(Tr. 2549-50, citing Tr. 2447). During the same visit, plaintiff’s treatment notes indicate plaintiff
“only had one to two bowel movements” each day on average and that his Crohn’s disease was
“currently well [controlled] on 3mg Budesonide daily.” (Tr. 2550, citing Tr. 2447-48). The ALJ
considered evidence in plaintiff’s primary care treatment notes indicating that his Crohn’s
disease was “fairly stable” (Tr. 2550, citing Tr. 2954, 2971, 3000) and “mild” (Tr. 2550, citing
Tr. 2408; Tr. 2549, citing Tr. 1701; Tr. 2548, citing 1790). The ALJ considered that plaintiff
was not always compliant with taking his prescribed medication, noting plaintiff “acknowledged
that he stopped taking his Budesonide one month prior because he did not feel that he needed it
anymore.” (Tr. 2550, citing Tr. 2425). In September 2022, Plaintiff’s primary care physician
noted that plaintiff “only took his azathioprine off and on” and had not filled his prescription
since December 2021. (Tr. 2550, citing Tr. 2954) (see also Id., citing Tr. 2862, noting plaintiff
has been “non-compliant”). The medical record substantially supports the ALJ’s finding that
plaintiff’s testimony of symptoms from Chron’s disease were not as severe as he alleged.
Plaintiff also asserts that the ALJ provided no “evidence or logical bridge [to finding] that
five minutes is a sufficient duration to accommodate [plaintiff’s] unscheduled restroom breaks”
(Doc. 12 at PageID 3125) and failed to “articulate with specificity reasons for finding that five
minutes sufficiently accommodates [plaintiff’s] unscheduled restroom breaks.” (Doc. 12 at
PageID 3126). However, plaintiff’s argument fails because the ALJ properly considered the
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medical evidence in the record and explained his reasoning for finding that the intensity and
persistence of plaintiff’s symptoms were less severe than alleged. In considering the severity of
plaintiff’s symptoms, the ALJ analyzed the frequency and intensity of plaintiff’s symptoms,
medications and other methods used to manage his symptoms, and how those symptoms impact
his functional limitations. The ALJ found:
[T]he record, including [plaintiff’s] treatment history and subjective reports, does
not support symptoms or limitations as severe as alleged. Even at his worst, which
was usually accompanied by noncompliance with his treatment recommendations,
he did not endorse restroom use with the frequency alleged at his hearings.
Furthermore, there is no basis to conclude that all of his restroom use would occur
at work. Therefore, immediate access to a restroom with no more than two five-
minute breaks, in addition to the scheduled breaks in full-time work, fully
accommodates the claimant’s gastrointestinal complaints.
(Tr. 2550-51). The ALJ further explained:
In deference to his history of Crohn’s, which is usually adequately controlled with
medication, the undersigned added a restriction to immediate access to a restroom
with no more than two five-minute breaks. However, as noted above, his generally
mild Crohn’s demonstrates that no further breaks or additional restrictions are
needed to address his gastrointestinal complaints.
(Tr. 2556). Given plaintiff’s testimony that his restroom breaks can take between five and
twenty minutes and the ALJ’s substantially supported finding that plaintiff’s symptoms were not
as severe as alleged at the hearing, the ALJ reasonably selected the low end of the five-to-
twenty-minute range for incorporation into the RFC. Plaintiff does not point to any other
medical evidence showing that his Crohn’s disease necessitated restroom breaks in excess of five
minutes in duration or that the additional two-five minute breaks would not accommodate
plaintiff’s needs in conjunction with the “usual and customary morning break, afternoon break
and lunch break” identified by the ALJ in his hypothetical questions to the VE. (Tr. 2551, 2595).
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Plaintiff next contends the ALJ failed to explain what “ready access” to a restroom means
in accordance with the Court’s remand order. The Court previously asked:
[D]oes “ready” access refer simply to the proximity of an on-site restroom, or does
it also address the urgency of his condition such that he would be permitted to step
away from his workstation at any time to use the restroom?
(Tr. 2640-2641). Plaintiff contends ALJ Kenyon simply substituted the word “immediate” for
“ready” in his RFC without answering the Court’s question.
The VE’s testimony addressed the issue identified by plaintiff. The VE testified that
“immediate access to a bathroom” is environment and employer dependent. (Tr. 2595). The VE
also testified, however, that given the nature of the jobs he identified, which did not require
tandem work or reliance on another person’s job duties, the restriction “would probably be
tolerable in the majority of positions” he identified. (Tr. 2596). The Court finds no error in this
regard.
The VE also testified that the “two five minute restroom breaks a day would be
acceptable in these types of jobs.” (Tr. 2595). The frequency and duration of plaintiff’s
bathroom breaks identified by the ALJ is in keeping with the ALJ’s duties in crafting an RFC.
Courts within the Sixth Circuit and elsewhere require that “when a restroom limitation is
incorporated into an RFC, an ALJ must also make a specific finding about the frequency and
duration of a claimant’s bathroom usage as part of that RFC.” Megan I. B. v. Comm’r of Soc.
Sec., No. 2:22-cv-2238, 2022 WL 16945709, at *3 (S.D. Ohio Nov. 15, 2022) (citing McQuade
v. Comm’r of Soc. Sec., No. 1:21-cv-834, 2022 WL 4375984, at * 3-4 (N.D. Ohio Sept. 22, 2022)
(holding that an ALJ errs when failing to make findings about the frequency and duration of a
16
claimant’s bathroom use when he or she finds that the claimant has a limit related to the need for
bathroom breaks and access); Green v. Astrue, No. 3:09-cv-331, 2010 WL 2901765, at *5 (E.D.
Tenn. July 2, 2010) (finding that where an ALJ finds that a claimant “has an impairment that
requires her to have ‘ready access to a bathroom’ and the ‘freedom to use it as needed’ an ALJ
should make a specific finding concerning the frequency and duration of [the claimant]’s
bathroom usage”) (citation omitted), report and recommendation adopted, 2010 WL 2901762
(E.D. Tenn. July 20, 2010); Lewis v. Kijakazi, No. 5:21-cv-00111-D, 2022 WL 1652424, at *5
(E.D. N.C. May 4, 2022) (finding that ALJ erred by finding that a claimant needed ready access
to bathrooms but failing to make findings about the frequency and duration of the claimant’s
bathroom use), report and recommendation adopted, 2022 WL 1651451 (E.D. N.C. May 24,
2022)). Absent a finding relating to the frequency and duration of a plaintiff’s bathroom use, “an
RFC cannot be reliably used in the next step of the disability determination process.” Megan I.
B., 2022 WL 16945709, at *3 (citing Dickerson v. Comm’r of Soc. Sec., No. 4:18-cv-4578, 2019
WL 7938518, at *4 (S.D. Tex. Dec. 9, 2019) (explaining that an ALJ’s failure to specify the
duration and frequency impacts the sufficiency of a VE’s testimony in response to a
hypothetical), report and recommendation adopted, 2020 WL 730877 (S.D. Tex. Feb. 12,
2020)).
Here, the ALJ did make such a finding by including a provision in the RFC that plaintiff
have “the ability to take two unscheduled five-minute restroom breaks per day.” (Tr. 2540). The
ALJ properly considered the record as a whole and determined that plaintiff’s gastrointestinal
symptoms were not as severe as alleged, but he nevertheless included a limitation addressing the
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frequency and duration of the plaintiff’s bathroom use. Jeley v. Comm’r of Soc. Sec., No. 2:19-
cv-3107, 2020 WL 4528823, at *6 (S.D. Ohio Aug. 6, 2020) (finding the “ALJ’s RFC does
address the duration and frequency of Plaintiff’s bathroom breaks” and therefore was not a
“vague and arbitrary limitation[]”), report and recommendation adopted, 2020 WL 5793183
(S.D. Ohio Sept. 29, 2020).
Further, as to plaintiff’s assertion that the ALJ erred by failing to reconcile the VE’s
testimony with plaintiff’s restroom break needs, the Court finds this argument unpersuasive.
During the hearing, ALJ Kenyon posed a series of hypotheticals to the VE about the availability
of jobs in the national economy for an individual with certain hypothetical limitations. (Tr.
2593-96). In response to these hypotheticals, the VE was able to identify at least 350,000 jobs
that would be available in the national economy for an individual with the specified limitations
ultimately included in the RFC. (Tr. 2594). On examination by plaintiff’s counsel, the VE was
asked whether plaintiff would be accommodated in the workplace if, instead of a five-minute
break, he needed a longer break. (Tr. 2597). The VE replied that a longer the break is “more
noticeable and the more problematic . . . even if it were one 10 to 15 minute break, I think that
could be a problem if that were happening every day.” (Id.). When asked about the tolerance for
off-task behavior and absenteeism, the VE indicated that any off-task behavior exceeding three
times more than the average worker would be work-preclusive. (Tr. 2599). Here, the ALJ
reasonably concluded that plaintiff’s alleged symptoms and need for restroom breaks was not as
severe as alleged. Therefore, the ALJ’s determination that plaintiff required “two unscheduled
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five-minute restroom breaks per day” is consistent with the VE’s testimony and supported by
substantial evidence. (Tr. 2540).
The Court finds the ALJ’s basis for rejecting plaintiff’s testimony about the severity of
his Crohn’s symptoms and need for bathroom breaks is supported by substantial evidence. The
ALJ did not disregard plaintiff’s claim that he needs frequent restroom breaks. Rather, plaintiff’s
testimony was considered by the ALJ alongside other evidence including medical findings
confirming his Crohn’s disease was mild. The RFC reflects the ALJ’s determination regarding
plaintiff’s bathroom breaks, finding that he would require two additional breaks each day for up
to five minutes. (Tr. 2556). To the extent plaintiff claims that additional restrictions should have
been included in the RFC for this impairment, he has not produced evidence showing that further
specific work-related limitations are warranted. The ALJ’s findings substantially support the
restroom break limitation in the RFC. Plaintiff’s first assignment of error is overruled.
The ALJ’s finding relating to plaintiff’s cubital tunnel syndrome are also substantially
supported by the record. Plaintiff argues the ALJ failed to accommodate plaintiff’s bilateral
cubital tunnel syndrome. (Doc. 8 at PageID 3103). Plaintiff argues the ALJ’s limitation of
“frequent use of the upper extremities for reaching, handling, and fingering” still requires up to
six out of eight hours per days of reaching, handling, and fingering, and thus “is not really a
limitation at all.” (Id., citing Tr. 2539 and SSR 83-10). The Commissioner counters that
“frequent” is a limitation because it limits plaintiff to using his upper extremities “one-third to
two-thirds of the time.” (Doc. 11 at PageID 3120, citing SSR 83-10). The Commissioner argues
that the ALJ “properly considered” plaintiff’s history of bilateral cubital tunnel syndrome and
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found the “record did not support bilateral cubital tunnel syndrome with symptoms and
limitations as severe as alleged” by plaintiff. (Id. at PageID 3121). The Commissioner also
points out that plaintiff did not submit any medical evidence or opinion that his “cubital tunnel
syndrome causer greater limitations than those included in the RFC.” (Id.).
Plaintiff’s argument that reducing plaintiff’s use of upper extremities to “two-thirds of the
time” is not a “limitation” is at odds with how the Social Security Administration defines
commonly used terms for medical-vocational evaluations. “Frequent” is a vocationally relevant
term of art in Social Security law that is distinct from the greater limitation of “constant.” The
terms “frequently” and “constantly” are defined in the Commissioner’s Program Operations
Manual System (“POMS”)5 as follows:
11. Constantly: Use of this term in the RFC or [Selected Characteristics of
Occupations (“SCO”)] means that the activity or condition occurs two-thirds or
more of an eight-hour day.
33. Frequently: Use of this term in the SCO or RFC means that the activity or
condition occurs one-third to two-thirds of an 8-hour workday.
DI 25001.001 Medical and Vocational Quick Reference Guide, found at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0425001001 (last visited on Aug. 20, 2025). The
term “frequent” is also defined in SSR 83-10 to mean “occurring from one-third to two-thirds of
the time.” See SSR 83-10, 1983 WL 31251, at *6. The inclusion of a restriction to “frequent”
use of the upper extremities in the RFC is a limitation recognized in Social Security law, and
plaintiff’s argument is not well-taken.
5 The POMS is a policy and procedure manual used by Department of Health and Human Services
employees. Davis v. Sec’y HHS, 867 F.2d 336, 340 (6th Circ. 1989). It lacks the force of law, but the Sixth Circuit
considers it to be persuasive authority on procedural Social Security issues. Id.
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Plaintiff appears to also argue that the ALJ erred because there is “no medical opinion
evidence whatsoever supporting the ALJ’s summary conclusion that plaintiff can sustain work
involving frequent reaching, handling, and fingering,” and the state agency medical consultants,
who the ALJ found to be partially persuasive, did not address his cubital tunnel syndrome. (Doc.
8 at PageID 3104; Doc. 12 at PageID 3127). The Commissioner argues that the ALJ “properly
considered the impairment” and no post-surgical findings supported greater limitations relating
to plaintiff’s cubital tunnel syndrome. (Doc. 11 at PageID 3120-21).
In September 2019, state agency consultant Gary Hinzman, M.D., reviewed plaintiff’s
record and opined that he could lift 20 pounds frequently and 10 pounds occasionally, sit for 6
hours, and stand/walk for 6 hours. (Tr. 105). Dr. Hinzman also found that plaintiff could
frequently stoop, kneel, crouch, crawl, and climb ramps and stairs, and occasionally climb
ladders, ropes, or scaffolds. (Tr. 105-06). In November 2019, Linda Hall, M.D., reviewed
plaintiff’s file upon reconsideration and affirmed Dr. Hinzman’s opinion. (Tr. 135-37).
In evaluating the prior administrative medical findings, the ALJ found they were
“partially persuasive,” noting they were “somewhat supported by and consistent with the record,
which demonstrated a longstanding history of pain and related symptoms but with adequate
functioning on his physical examinations.” (Tr. 2555). The ALJ based this statement on his
review of the record where he found plaintiff’s strength was rated at least 4/5 and often 5/5. (Tr.
2555, citing to Tr. 470, 475, 498, 501, 503, 507, 509, 511, 516-17, 520, 553, 731, 734, 736,
1081, 1720, 1749, 2555, 3003). The ALJ further noted that despite the lack of evidence to
support the alleged severity of plaintiff’s symptoms, he still addressed them in his findings:
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[Plaintiff’s] EMG and nerve conduction study was normal (e.g. Exhibit 1F/18,
124). Imaging of the back generally reflects no more than mild abnormalities (e.g.
Exhibits 1F/17, 73, 137-174; 2F/107-108; 4F/262-265; 10F/11). Such findings
further support an ability to perform a reduced range of light work as opined.
Nevertheless, the undersigned included manipulative limitations in deference to his
remote history of a cubital tunnel release despite his often 5/5 strength, including
with respect to handgrip.
(Tr. 2589).
The Court finds the ALJ’s evaluation of plaintiff’s cubital tunnel syndrome symptoms is
based on substantial evidence. The ALJ considered plaintiff’s testimony about his cubital tunnel
syndrome symptoms, including that it “caused a shock down into his pinkie and ring fingers” and
“made his elbows and wrists ache,” as well as difficulties he reported with daily activities like
carrying groceries. (Tr. 2541, citing Tr. 2696). The ALJ properly considered the treatment
findings indicating that despite plaintiff’s “longstanding history of pain and related symptoms . .
. the record does not support symptoms as intense, persistent, or limiting as alleged.” In
evaluating the intensity, persistence, or limiting effects of plaintiff’s symptoms, the ALJ noted
the lack of treatment and objective medical findings related to plaintiff’s cubital tunnel syndrome
following his 2016 surgery. (Tr. 2542). The ALJ concluded that:
The record reflects that the claimant had bilateral cubital tunnel syndrome with
ulnar nerve transposition in 2016, and he indicated sitting funny to guard his elbow
started the pain in his right buttock (e.g. Exhibit 5F/916). However, despite some
residual complaints of upper extremity pain, weakness, and related symptoms, there
is no indication that he required further treatment specifically for his history of
bilateral cubital tunnel syndrome (Exhibits 1F-10F). As will be discussed more
thoroughly below, he consistently presents with relatively good strength in the
bilateral upper extremities (Exhibits 1F-10F). No further objective studies, such as
EMGs or imaging, address the upper extremities (Exhibits 1F-10F). Thus, the
record does not support bilateral cubital tunnel syndromes [sic] with symptoms and
limitations as severe as alleged. Therefore, the reduced range of light work with
frequent manipulative abilities fully addresses the claimant’s history of bilateral
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cubital tunnel syndrome while giving the claimant the full benefit of the doubt with
respect to his subjective complaints.
(Id.).
The ALJ properly observed throughout his decision that plaintiff’s treatment notes
indicated full strength and range of motion in his upper extremities. (Tr. 2543, citing Tr. 669,
“5/5 . . . hand grip strength”; Tr. 2543, 2576, citing Tr. 553, “full range of motion and full 5/5
strength in the upper and lower extremities”; Tr. 2577, citing Tr. 1720 “full 5/5 strength in upper
and lower extremities”; Tr. 2578, citing Tr. 511, “range of motion in the bilateral upper and
lower extremities was within normal limits, though he had some reduction in strength ranging
from 4-/5 to 4/5”; Tr. 2546, citing Tr. 470, “full 5/5 strength in all tested muscle groups of the
bilateral upper and lower extremities”). (See also Tr. 2555, citing Tr. 470, 475, 498, 501, 503,
507, 509, 511, 516-517, 520, 553, 731, 734, 736, 1081, 1640, 1705, 1720, 1749). The ALJ
specifically noted that in May 2019, plaintiff “maintained full 5/5 strength in the tested muscle
groups of the bilateral upper and lower extremities, including with respect to wrist strength,
which had some give due to pain.” (Tr. 2546, citing Tr. 498).
It was the ALJ’s duty, and not this Court’s, to weigh the conflicting evidence and assess
the consistency of plaintiff’s subjective complaints. See Reynolds v. Comm’r of Soc. Sec., 424 F.
App’x 411, 414 (6th Cir. 2011) (citing Youghingheny & Ohio Coal Co. v. Webb, 49 F.3d 244,
246 (6th Cir. 1995)). Plaintiff cites no authority for his argument that “frequent” is not an actual
limitation, and as the Commissioner points out, plaintiff does not point to any evidence in the
record to indicate that his cubital tunnel syndrome requires further limitations to accommodate it.
(Doc. 11 at PageID 3121). The ALJ considered a number of factors in determining symptom
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severity, including plaintiff's treatment course, the objective medical evidence, plaintiff's daily
activities, and clinical findings on examination. Further, the ALJ’s determination regarding the
consistency of a claimant’s subjective complaints with the record evidence is “to be accorded
great weight and deference. ...” John D. v. Comm’r of Soc. Sec., No. 2:23-cv-3613, 2025 WL
39865, at *5 (S.D. Ohio Jan. 7, 2025), report and recommendation adopted, 2025 WL 428528
(S.D. Ohio Feb. 7, 2025) (citing Walters v. Comm of Soc. Sec., 127 F.3d 525, 531 (6th Cir.
1997)). The Court finds that the ALJ’s decision is supported by substantial evidence, and
plaintiff's second assignment of error is overruled.
IT IS THEREFORE ORDERED THAT:
Based on the foregoing, plaintiff's Statement of Errors (Doc. 8) is OVERRULED, and the
Commissioner’s non-disability finding is AFFIRMED. IT IS THEREFORE ORDERED
that judgment be entered in favor of the Commissioner and this case is closed on the docket of the
Court.
Date: 8/21/2025 Keun K Kethonh-
Karen L. Litkovitz
United States Magistrate Judge
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