“[T]he ALJ failed to analyze whether [the plaintiff]’s RFC was impacted by her need to work near a_ restroom and take frequent bathroom breaks.” (emphasis added)
How later courts described this case
- “[T]he ALJ failed to analyze whether [the plaintiff]’s RFC was impacted by her need to work near a_ restroom and take frequent bathroom breaks.” (emphasis added)
- “If the ALJ finds that a claimant has not satisfied any step of the process, review does not proceed to the next step.”
- “The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RONDA C., )
)
Plaintiff, )
)
v. ) 1:24CV493
)
FRANK J. BISIGNANO, )
Commissioner of Social )
Security, )
)
Defendant.1 )
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Ronda C., brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security
(the “Commissioner”), denying Plaintiff’s claims for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”). (Docket Entry 1.) The Commissioner has filed the
certified administrative record (Docket Entry 5 (cited herein as
“Tr. __”)), and both parties have submitted dispositive briefs in
accordance with Rule 5 of the Supplemental Rules for Social
Security Actions under 42 U.S.C. § 405(g) (Docket Entry 10
(Plaintiff’s Brief); Docket Entry 11 (Commissioner’s Brief); Docket
1 The United States Senate confirmed Frank J. Bisignano as the Commissioner
of the Social Security Administration on May 6, 2025, and he took the oath of
office on May 7, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Frank J. Bisignano should substitute for Leland C. Dudek as the
defendant in this suit. No further action need be taken to continue this suit
by reason of the last sentence of Section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
Entry 12 (Plaintiff’s Reply)). For the reasons that follow, the
Court will enter judgment for the Commissioner.2
I. PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI (Tr. 224-37), alleging a
disability onset date of September 1, 2021 (see Tr. 224, 227, 231).
Upon denial of those applications initially (Tr. 88-109, 130-39)
and on reconsideration (Tr. 110-29, 147-52), Plaintiff requested a
hearing de novo before an Administrative Law Judge (“ALJ”)
(Tr. 153-54). Plaintiff, her attorney, and a vocational expert
(“VE”) attended the hearing. (Tr. 42-87.) The ALJ subsequently
ruled that Plaintiff did not qualify as disabled under the Act.
(Tr. 11-35.) The Appeals Council thereafter denied Plaintiff’s
request for review (Tr. 1-6, 222-23, 341), thereby making the ALJ’s
ruling the Commissioner’s final decision for purposes of judicial
review.
In rendering that decision, the ALJ made the following
findings later adopted by the Commissioner:
1. [Plaintiff] meets the insured status requirements of
the . . . Act through March 31, 2026.
2. [Plaintiff] has not engaged in substantial gainful
activity since September 1, 2021, the alleged onset date.
2 On consent of the parties, this “case [wa]s referred to [the undersigned]
United States Magistrate Judge . . . to conduct all proceedings . . ., to order
the entry of judgment, and to conduct all post-judgment proceedings []herein.”
(Docket Entry 8 at 1.)
2
3. [Plaintiff] has the following severe impairments:
obesity, recurrent small bowel obstruction with chronic
constipation, brain meningioma, headache, degenerative
disc disease of the lumbar spine, trigeminal neuralgia,
depressive disorder, and anxiety.
. . .
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.
. . .
5. . . . [Plaintiff] has the residual functional
capacity to perform light work . . . with exceptions.
She can lift/carry 20 pounds occasionally and 10 pounds
frequently, can stand/walk for six hours in an eight-hour
workday, and can sit for six hours in an eight-hour
workday. [She] can frequently climb ramps and stairs,
but can only occasionally climb stepladders up to four
vertical feet in height, and she can never climb higher
ladders or ropes/scaffolds of any height. She can
frequently kneel and crouch, but is limited to occasional
stooping and crawling. [She] can tolerate occasional
exposure to extreme cold and heat and to vibration and
high, exposed places. She is limited to performing work
that is frequently performed indoors and she must be
afforded the ability to wear tinted lenses as needed when
performing assigned work. [She] can tolerate exposure up
to and including moderate noise. She is limited to work
needing little or no judgment to do simple duties that
can be learned on the job or in a short period of time,
usually within 30 days, and for which little specific
vocational preparation and judgment are needed. [She] is
limited to work that is not frequently performed on an
assembly line or at a similar production pace. She can
have occasional interactions with supervisors, coworkers,
and the public when performed [sic] the assigned
work. [She] requires access to indoor toilet facilities
during routine employer-provided breaks. Due to effects
of [her] combination of impairments, she would be absent,
tardy, or require early departure from work approximately
four to five times per year.
. . .
3
6. [Plaintiff] is capable of performing past relevant
work as a cleaner housekeeper ([Dictionary of
Occupational Titles (‘DOT’)] number 323.687-014; light;
unskilled; svp-2). This work does not require the
performance of work-related activities precluded by
[Plaintiff]’s residual functional capacity.
. . .
In addition to past relevant work, there are other jobs
that exist in significant numbers in the national economy
that [Plaintiff] can perform, considering [her] age,
education, work experience, and residual functional
capacity.
. . .
7. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from September 1, 2021, through
the date of th[e ALJ’s] decision.
(Tr. 16-29 (bold font and internal parenthetical citations
omitted).)
II. DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.” Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). Plaintiff has
not established entitlement to relief under the extremely limited
review standard.
A. Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a
reviewing court must uphold the factual findings of the ALJ
4
[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal brackets and quotation marks omitted). “If
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.” Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].” Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
5
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘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 12 months,’” id.
(quoting 42 U.S.C. § 423(d)(1)(A)).3 “To regularize the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
account a claimant’s age, education, and work experience in
addition to [the claimant’s] medical condition.” Id. “These
regulations establish a ‘sequential evaluation process’ to
determine whether a claimant is disabled.” Id. (internal citations
omitted).
3 The Act “comprises two disability benefits programs. [DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. [SSI] . . . provides benefits to indigent disabled persons. The
statutory definitions and the regulations . . . for determining disability
governing these two programs are, in all aspects relevant here, substantively
identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
6
This sequential evaluation process (“SEP”) has up to five
steps: “The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any
other work.” Albright v. Commissioner of Soc. Sec. Admin., 174
F.3d 473, 475 n.2 (4th Cir. 1999).4 A finding adverse to the
claimant at any of several points in the SEP forecloses an award
and ends the inquiry. For example, “[t]he first step determines
whether the claimant is engaged in ‘substantial gainful activity.’
If the claimant is working, benefits are denied. The second step
determines if the claimant is ‘severely’ disabled. If not,
benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th
Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
4 “Through the fourth step, the burden of production and proof is on the
claimant. If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
7
the ALJ must assess the claimant’s [RFC].” Id. at 179.5 Step four
then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant work”; if so, the claimant
does not qualify as disabled. Id. at 179-80. However, if the
claimant establishes an inability to return to prior work, the
analysis proceeds to the fifth step, whereupon the ALJ must decide
“whether the claimant is able to perform other work considering
both [the RFC] and [the claimant’s] vocational capabilities (age,
education, and past work experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65. If, at this step, the government cannot
carry its “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
claimant qualifies as disabled. Hines, 453 F.3d at 567.6
5 “RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained work-
related physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
6 A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
8
B. Assignments of Error
Plaintiff asserts that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ failed to adequately account for the number of
absences Plaintiff would incur due to her hospitalizations and
treatments for [small bowel obstructions (‘SBOs’)] and headaches
with trigeminal neuralgia in the RFC assessment” (Docket Entry 10
at 5 (bold font and block formatting omitted); see also Docket
Entry 12 at 1-3); and
2) “[t]he ALJ erred by failing to make appropriate findings
concerning the frequency and duration of Plaintiff’s need for
breaks to use the bathroom due to bowel urgency in the RFC” (Docket
Entry 10 at 14 (bold font and block formatting omitted); see also
Docket Entry 12 at 3-7).
The Commissioner contends otherwise and seeks affirmance of
the ALJ’s decision. (Docket Entry 11 at 6-24.)
1. Absenteeism Due to SBOs and Headaches
In Plaintiff’s first issue on review, she maintains that
“[t]he ALJ failed to adequately account for the number of absences
Plaintiff would incur due to her hospitalizations and treatments
for SBOs and headaches with trigeminal neuralgia in the RFC
assessment.” (Docket Entry 10 at 5 (bold font and block formatting
omitted); see also Docket Entry 12 at 1-3.) More specifically,
Plaintiff contends that, “[a]s the [United States Court of Appeals
9
for] the Fourth Circuit and this [C]ourt have explained, absences
incurred due to illness as well as absences for the treatment of
the illnesses themselves can prevent work if they are occurring so
frequently that the individual cannot maintain necessary attendance
for employment[.]” (Docket Entry 10 at 5; see also id. at 6-7
(citing, inter alia, Dennis v. Kijakazi, No. 21-2078, 2023 WL
2945903, at *5-6 (4th Cir. Apr. 14, 2023) (unpublished), Meyer v.
Astrue, 662 F.3d 700, 707 n.3 (4th Cir. 2011), and Shoemaker v.
Saul, No. 1:19CV441, 2020 WL 5117992, at *5-6 (M.D.N.C. Aug. 31,
2020) (unpublished) (Peake, M.J.), recommendation adopted, slip op.
(M.D.N.C. Sept. 15, 2020) (Schroeder, C.J.)).) Plaintiff points
out that “the ALJ found that[,] ‘[d]ue to effects of [Plaintiff]’s
combination of impairments, she would be absent, tardy, or require
early departure from work approximately four to five times per
year’” (id. at 7 (quoting Tr. 20)), but that, “[a]t no point in his
decision, . . . does the ALJ explain how he arrived at that number
of absences” (id.).
In Plaintiff’s view, “the record shows that between 2021 and
2023, [Plaintiff] was in the hospital or at her specialist’s office
for other treatments well over the four to five days per year which
the ALJ found would account for her absences in his RFC assessment”
(id. at 7 (citing Tr. 20)) and, “in the one-year period between May
of 2022 and May of 2023 (when the hearing was held), [Plaintiff]
was in the hospital more than 20 days during separate
hospitalizations to treat her SBOs” (id. at 7-8). Plaintiff
10
further notes that “[the 20-day] figure does not even include the
number of days she spends at home recuperating after each
hospitalization (she testified to recuperation for about one week
after (see [Tr.] 69-70)), and it does not include the absences that
she would incur due to her experience of trigeminal neuralgia
attacks (see [Tr.] 64-65)[,] the frequency of which has varied
throughout the relevant time period from multiple times per week to
a few times per year.” (Docket Entry 10 at 8 (italics supplied by
Plaintiff) (final internal parenthetical citation omitted)).
Plaintiff additionally notes that “the VE in this case testified
that[,] if [Plaintiff] were to miss more than one day of work per
month[, ] she would not be competitively employable” (id. at 7
(citing Tr. 83)), and thus argues that, “if not reversed for an
award of benefits pursuant to the VE’s testimony regarding the work
prohibitive effect of [Plaintiff]’s excessive absences . . ., then
this case must be remanded so that the ALJ can properly analyze the
records and provide an explanation for how he calculates the number
of absences [Plaintiff] would incur in the RFC assessment” (id. at
13). For the reasons explained in more detail below, Plaintiff’s
contentions ultimately lack merit.
RFC entails assessment of a claimant’s ability to do sustained
work-related physical and mental activities in a work setting “on
a regular and continuing basis,” 20 C.F.R. §§ 404.1545(b), (c),
416.945(b), (c) (emphasis added), which “‘means 8 hours a day, for
11
5 days a week, or an equivalent work schedule,’” Hines, 453 F.3d at
562 (emphasis omitted) (quoting Social Security Ruling 96-8p,
Titles II and XVI: Assessing Residual Functional Capacity in
Initial Claims, 1996 WL 374184, at *2 (July 2, 1996) (“SSR
96-8p”)). In making the RFC determination, the ALJ must take into
consideration “[t]he effects of treatment, including limitations or
restrictions imposed by the mechanics of treatment (e.g., frequency
of treatment, duration, disruption to routine, side effects of
medication).” SSR 96-8p, 1996 WL 374184, at *5. Moreover,
“[a]bsenteeism due to the frequency of treatment is a relevant
factor so long as the treatment is medically necessary and concerns
the conditions on which the disability claim is founded.” Griffin
v. Commissioner of Soc. Sec., No. 2:15CV13715, 2017 WL 991006, at
*2 (E.D. Mich. Mar. 15, 2017) (unpublished). Here, for the reasons
that follow, Plaintiff has ultimately failed to demonstrate that
the record evidence regarding her recurrent SBOs and headaches
should have compelled the ALJ to include work-preclusive levels of
absenteeism in the RFC.
The ALJ analyzed the evidence relating to Plaintiff’s
hospitalizations for SBOs and treatment for headaches as follows:
The [ALJ] finds the medical record concerning the effects
of [Plaintiff]’s . . . recurrent [SBO] with chronic
constipation, . . . headache, . . . [and] trigeminal
neuralgia . . . do not show these impairments to be as
functionally limiting as has been alleged . . . .
At the initial level, [the state agency medical
consultant] noted hospitalization in early January 2021
12
secondary to [SBO]. Additional hospital
presentations/admissions for abdominal pain/[SBO] were
noted in May and June 2021 and in January
2022. . . . [Plaintiff] was also reporting daily
headaches located in the left posterior superior region
during follow-up in mid-October 2021. She was seen in
December 202[1] for follow-up of headaches. ... She
was hospitalized in January 2022 for [SBO], and providers
also noted diagnos[ils of . . . trigeminal
neuralgia. ...
At reconsideration, [the state agency medical consultant]
noted follow-up in March 2022 with concern about
trigeminal neuralgia. Follow-up in April 2022 for
headache indicates reported headache frequency of four to
five timer per week as well as some hypesthesia as
described. . . . Follow-up in May also noted [Plaintiff]
reporting headaches that had reduced in frequency such
that they occurred approximately every three to four
months and that she had good results with Neurontin. In
July 2022, [Plaintiff] was seen in the emergency
department with left upper and lower quadrant pain
radiating to the back, with CT [scan] noting probable
early partial [SBO]. .. .
Turning to the new evidence, additional hospitalizations
for [SBO] took place in September 2022 and in
February/March 2023. This is in addition to the prior
hospitalizations noted by [the state agency medical
consultants] during 2021 and early 2022. As noted by
[those consultants], treatment has typically been
nonsurgical, consisting of nasogastric (NG) tube
placement and medication with resolution of symptoms.
The record reflects additional primary care follow-ups
during the relevant period; however, the vast majority
appear related to weight loss or routine follow ups, with
relatively few visits relating to acute illness. ...
For example, notes from an office visit on April 19,
2022, include that [Plaintiff] presented for a routine
weight loss follow up. Examination was unremarkable
beyond noting obesity . .. . Counseling regarded
increased physical activity was provided, which suggests
that negative symptomology and limiting effects
associated with [Plaintiff]’s impairments may not be as
limiting as were alleged ....
13
At a routine check up on August 17, 2022, [Plaintiff] had
no complaints across any system. Examination was
entirely normal beyond noting obesity.
Regarding [Plaintiff]’s headaches, treatment notes
indicate variability with the reported frequency of
[Plaintiff]’s symptoms. For example, .. . [Plaintiff]
has reported daily headaches, but has also reported only
occasional headaches, in September 2021 reporting only
three headaches over the last year. In December 2021,
she reported that her headaches came on fast and would
end fast... . [Plaintiff] was noted to be responsive
to [g]labapentin/Neurontin, with the provider concluding
that [Plaintiff’s] symptoms were likely related to
trigeminal neuralgia with a partial response to
[g]abapentin. Notes from a neurology follow-up in March
2022 include [Plaintiff]’s reports that she was generally
doing okay on high-dose [g]labapentin. She did report a
recent flare-up, although it was characterized as not
being “full blast.” She was diagnosed with trigeminal
neuralgia and continued on [g]Jabapentin. At a follow-up
in April 2022, [Plaintiff] reported four to five
headaches per week of moderate severity. At that time,
the provider apparently felt that there was a component
of trigeminal neuralgia that may be causing [Plaintiff]’s
symptoms, noting that [she] had improved on [g]labapentin
and was no longer experiencing stabbing pain with tactile
feedback on the face. During follow-up in June 2022,
neurology found that [Plaintiff] was neurologically
stable and recommended follow-up in three to four months.
Thereafter, reports of symptoms were variable regarding
reported headache, with some appointment notes indicating
no complaints of headache, while others reflect
complaints of headache. During mental health follow-up
in April 2023 [Plaintiff] reported intermittent headache,
which was not otherwise quantified. ...
(Tr. 22-23 (emphasis added) (internal parenthetical citations
omitted) .)
The ALJ thereafter explained how he accounted for Plaintiff’s
recurrent SBOs and headaches in the RFC in the following manner:
Considering the record as a whole, the medium exertion
limitation [the state agency medical consultants] placed
overstates [Plaintiff]’s actual exertional capacity.
Specifically, there is a history of recurrent [SBO] with
14
abdominal pain. There is also a history of headaches
that were/are possibly associated with trigeminal
neuralgia. .. . Considering these factors and the
totality of [Plaintiff]’s impairments and associated
limitations, a limitation to work at the light exertional
level is therefore more appropriate. Beyond that, a
variety of postural, environmental, and nonexertional
limitations are also included... . I have also
considered the effects of pain associated with
[Plaintiff]’s physical impairments... . A limitation
to moderate noise is provided due to
headaches . .. .. An allowance for absenteeism on an
annualized basis is also placed due _ to the combined
effects of her physical and mental impairments, to
include history of hospitalizations associated with
[SBO].
The above-referenced exam findings, high functioning
activities of daily living that include raising a child,
going out alone, driving a car, and shopping in stores
and by computer, and statements at medical visits
regarding medication/treatment efficacy are inconsistent
with [Plaintiff]’s testimony and statements that she
cannot work due to disabling . . . recurrent [SBO] with
chronic constipation, . . . headache, . . [and]
trigeminal neuralgia... □
(Tr. 25 (emphasis added) (internal parenthetical citations
omitted) .)
As an initial matter, the ALJ’s 1) express discussion of all
of Plaintiff’s hospitalizations for SBOs in the record (see Tr. 22-
24), as well as detailed discussion of Plaintiff’s headache
treatment (see Tr. 23), and 2) inclusion of specific limitations in
the RFC, i.e., absence and noise allowances, to account for
Plaintiff’s SBOs and headaches (see Tr. 20), distinguish this case
from Dennis, Meyer, and Shoemaker. In each of those cases, the ALJ
failed to discuss the impact of the plaintiff’s impairments on work
absence or to include any allowance for absence in the RFC.
15
The Fourth Circuit in Dennis emphasized the importance of
those facts to its decision to remand:
[T]he ALJ’s failure to discuss the record evidence
regarding [the plaintiff’s] absenteeism results in [the
court’s] inability to provide meaningful review. There
is evidence supporting [the plaintiff’s] need to miss
work in the administrative record, and the ALJ’s decision
does not discuss this evidence, nor does the ALJ’s
decision adequately explain why the evidence should be
rejected. Indeed, the ALJ did not offer any reasons for
rejecting or discounting the frequency of [the
plaintiff’s] medical treatment. Nowhere in the denial
did the ALJ address: (1) the frequency of [the
plaintiff’s] medical treatment, (2) how the frequency of
[the plaintiff’s] medical treatment would impact
absenteeism, or (3) how [the plaintiff’s] frequent
medical treatment would impact the VE’s testimony that
missing more than 7 to 10 days per year would be subject
to firing. This was error because [the court] can only
guess why the ALJ failed to address the obvious
implications of [the plaintiff’s] frequent medical
treatment.
Dennis, 2023 WL 2945903, at *5 (emphasis added) (internal quotation
marks and parenthetical citation omitted).
Similarly, in Meyer, the Fourth Circuit stressed the
Significance of the ALJ’s failure to make findings regarding the
impact of recurrent treatment on work absence:
[The court] note[s] that the record indicates that [the
plaintiff] attended more than 170 physical therapy
sessions after his surgery through June 2006. Following
the lead of the Fifth Circuit in Newton v. Apfel, 209
F.3d 448, 459 (5th Cir. 2000), a case the Commissioner
concedes supports [the plaintiff], [the court] further
instruct[s] the Commissioner on remand to “consider the
effect of [this] ongoing treatment on [the plaintiff’s]
ability to remain gainfully employed during the period of
claimed disability.” The Commissioner should also
consider whether such evaluation requires [VE] testimony
to prove [the plaintiff] retains the ability to perform
16
specific jobs which exist in the national economy. The
ALJ made no findings with respect to these issues.
Meyer, 662 F.3d at 707 n.3 (emphasis added) (internal citations and
quotation marks omitted).
Another judge of this Court also remanded where an ALJ simply
failed to address how the plaintiff’s recurring infusions would
impact her absenteeism:
[I]n assessing [the p]laintiff’s RFC, the ALJ did not
consider effects of treatment, including limitations or
restrictions imposed by the mechanics of treatment
related to [the p]laintiff’s bi-weekly infusions .. .,
and did not obtain evidence from the [VE] regarding the
availability of employment in light of those limitations.
Given the ALJ’s failure to address or consider this issue
at all, substantial evidence fails to support the ALJ’s
decision, and remand is required to allow the ALJ to
consider the effect of [the p] laintiff’s treatment on her
ability to work.
Shoemaker, 2020 WL 5117992, at *6 (emphasis added) (internal
quotation marks omitted). Given that the ALJ here expressly
discussed Plaintiff’s treatment for headaches, as well as all of
her hospitalizations for SBOs (see Tr. 22-24), and included
specific limitations in the RFC to account for those impairments
(see Tr. 20, 25), Dennis, Meyer, and Shoemaker thus do not aid
Plaintiff’s cause in arguing for remand here.
On the other hand, as Plaintiff argues (see Docket Entry 10 at
7), the ALJ did not adequately explain how he arrived at the figure
of “four to five [absences] per year” (Tr. 20 (emphasis added)).
The record reflects that, during the approximately 26-month
relevant period from Plaintiff’s alleged onset date of September 1,
17
2021, to the ALJ’s decision on October 27, 2023,’ Plaintiff spent
a total of 20 days in hospital for recurrent SBOs (see Tr. 1040-70
(1/9-1/11/22 3 days), 1481-84 (7/31/22 1 day), 1647-71 (9/8-9/12/22
5 days), 1689-92 (2/11/23 1 day), 1699-1733 (2/26-3/2/23 5 days),
1750-79 (3/7-3/10/23 4 days), 2058-62 (5/17/23 1 day)), which
reflects an average of approximately nine days per year.’ In
light of that undisputed record evidence, the ALJ failed to support
with substantial evidence his finding that Plaintiff’s combined
impairments would cause her to sustain four to five absences a year
(see Tr. 20).
The ALJ’s error in that regard, however, qualifies as harmless
under the circumstances presented here. See generally Fisher v.
Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]lo
principle of administrative law or common sense requires us to
remand a case in quest of a perfect opinion unless there is reason
’ During the hearing, the ALJ agreed to hold the record open for 30 days
to allow Plaintiff to submit additional evidence. (See Tr. 49.) Plaintiff
requested two more extensions of time (see Tr. 336, 338), and then confirmed the
record’s completion on July 12, 2023 (see Tr. 339). The last medical record
Plaintiff submitted to the ALJ documented Plaintiff’s surgical lysis of
intestinal adhesions on May 17, 2023. (See Tr. 2058-66.) Plaintiff neither
submitted additional evidence to the Appeals Council (see Tr. 1-6, 222-23, 341),
nor to this Court (see Docket Entries 10, 12). Thus, the record does not contain
any further evidence of hospitalization for SBOs through October 27, 2023, the
date of the ALJ’s decision.
8 Expanding to the 45-month period covered by the entire record from the
oldest treatment visit in the record dated January 27, 2020 (see Tr. 361-70), to
the ALJ’s decision on October 27, 2023, Plaintiff accumulated 28 days in hospital
related to her recurrent SBOs (see Tr. 564-75 (6/28-6/30/21 3 days), 580-89
(5/31-6/1/21 2 days), 598-617 (1/1-1/3/21 3 days), 1040-70 (1/9-1/11/22 3 days),
1481-84 (7/31/22 1 day), 1647-71 (9/8-9/12/22 5 days), 1689-92 (2/11/23 1 day),
1699-1733 (2/26-3/2/23 5 days), 1750-79 (3/7-3/10/23 4 days), 2058-62 (5/17/23
1 day)), which translates to an average of approximately seven and _a half days
per year.
18
to believe that the remand might lead to a different result”). As
discussed above, the record demonstrates, at most, absenteeism due
to SBO hospitalizations at a rate of nine days per year - a level
of absenteeism below the VE’s opinion that more than 12 absences
per year qualify as work preclusive (see Tr. 83). See Joseph D. W.
v. O’Malley, No. 1:23CV863, 2024 WL 3822724, at *7-8 (M.D.N.C. Aug.
14, 2024) (unpublished) (holding that “hospitalizations [for SBOs]
totaling 19 days in the 29 months between [the plaintiff’s] onset
date and the ALJ’s decision,” which amounted to an average of eight
absences per year, “simply d[id] not establish that [the
pllaintiff’s gastrointestinal impairments would have caused him to
miss work more than one day per month on an ongoing basis
throughout the relevant period” (footnote omitted)); compare Brown
v. Berryhill, No. 1:17CV1096, 2018 WL 3910833, at *4 (M.D.N.C. Aug.
15, 2018) (unpublished) (Webster, M.J.) (faulting ALJ for
“characteriz[ing the pllaintiff’s pain and limitation from
pancreatitis as not ongoing,” where, “by the Court’s count, [the
pllaintiff was hospitalized eleven times and for a total of
fifty-four days between the alleged amended onset date and the
decision date[ and] visited the emergency room at least nine other
times ..., or on average two days each month.” (emphasis added)),
19
recommendation adopted, 2018 WL 5447699 (M.D.N.C. Sept. 5, 2018)
(unpublished) (Eagles, J.).°
Plaintiff additionally maintains that she would incur absences
“due to her experience of trigeminal neuralgia attacks[,] the
frequency of which has varied throughout the relevant time period
from multiple times per week to a few times per year.” (Docket
° Although Plaintiff contends that, “between May of 2022 and May of
2023. . ., [she] was in the hospital for more than 20 days during separate
hospitalizations to treat her SBOs” (id. at 7-8 (emphasis added)), Plaintiff did
not provide a specific citation to the record to support that assertion, beyond
a generic citation to “[slee infra” (id. at 8). The record confirms that
Plaintiff spent 16 days in hospital from May 1, 2022, to May 1, 2023 (see Tr.
1481-84 (7/31/22 1 day), 1647-71 (9/8-9/12/22 5 days), 1689-92 (2/11/23 1 day),
1699-1733 (2/26-3/2/23 5 days), 1750-79 (3/7-3/10/23 4 days)), but 10 of those
days occurred in a one-month period from February 11 to March 10, 2023, when
Plaintiff experienced an acute exacerbation of her recurrent SBOs. Shortly
thereafter, on May 17, 2023, Plaintiff underwent lysis of adhesions (which
Plaintiff had previously deferred (see Tr. 1067)) to address her recurrent SBOs.
(See Tr. 2058-66.) The record fails to reveal any other one-month period with
that degree of hospitalization, and thus Plaintiff has not shown that her
recurrent SBOs caused her to experience impermissible levels of absence on a
consistent, ongoing basis during the relevant period. See Blackmon v.
Commissioner of Soc. Sec., No. 23-12894, 2024 WL 3495022, at *7 (lith Cir. July
22, 2024) (unpublished) (“The ALJ’s decision not to include absenteeism
limitations in [the plaintiff]’s RFC is supported by substantial
evidence. . .. Looking to the time period between... [the plaintiff]’s
amended onset date[] and... [the plaintiff]’s last documented medical
event... _ ., [the plaintiff] had medical events on only eight days, for an
average of just over 1 time per 30 days. And [the plaintiff] had multiple
medical events in just one of the months between her amended onset date and her
[ALJ hearing], which is hardly having multiple medical events in a month ona
regular and ongoing basis.” (emphasis added) (internal quotation marks omitted)).
Plaintiff further suggests that the calculation of absences should “include the
number of days she spen[t] at home recuperating after each hospitalization”
(Docket Entry 10 at 8 (italics supplied by Plaintiff)), and notes her testimony
that she “recuperat[ed] for about one week after” each hospitalization (id.
(citing Tr. 69-70)). However, when Plaintiff’s attorney asked “[h]low long [] it
t[ook for Plaintiff] to recover” after an SBO hospitalization (Tr. 69), Plaintiff
testified that:
[aJfter the [nasogastric] tube, it - I would say about a week, a
week to get just like - because I know a lot of things that they
give me to. And then like after then, I just try to eat slowly, try
to eat soft things like that, like dark jelly, light food. And then
I just try to deal with all this stuff.
(Tr. 69-70.) Notably, that testimony did not describe disabling symptoms (much
less symptoms that would necessitate work absence) during the days following her
SBO hospitalizations.
20
Entry 10 at 8 (citing Tr. 64-65) (internal parenthetical citation
omitted) .) In support of that argument, Plaintiff describes
evidence in the record she believes demonstrates that her
trigeminal neuralgia and/or headaches would have caused her to
incur work absences during the relevant period. (See id. at 9-12
(citing Tr. 547-56, 874-77, 1280-82, 1294-95, 1453-54, 1491-94,
1641-43) .)
Contrary to Plaintiff’s arguments, the records cited by
Plaintiff do not demonstrate that her trigeminal neuralgia and/or
headaches would have resulted in work absence. Those records do
not contain any emergency visits, hospitalizations, or surgeries
but, rather, reflect routine follow-up visits and improvement in
symptoms on conservative treatment with gabapentin and pregabalin.
(See Tr. 547-56, 874-77, 1280-82, 1294-95, 1453-54, 1491-94, 1641-
43).'° Moreover, as the ALJ recognized (see Tr. 23 (noting that
“treatment notes indicate variability with the reported frequency
of [Plaintiff]’s symptoms,” in that “[Plaintiff] has reported daily
headaches, but has also reported only occasional headaches, [and]
in September 2021[, she] report[ed] only three headaches over the
last year” (emphasis added))), Plaintiff reported widely divergent
and, at times, conflicting, frequencies of her trigeminal neuralgia
attacks/headaches (see Tr. 65 (at hearing on 5/16/23,
'° Three of those visits primarily concerned investigation of a benign
meningioma discovered incidentally on a CT scan that Plaintiff’s providers did
not cite as a cause of her trigeminal neuralgia/headaches. (See Tr. 546-57,
1491-94,)
21
characterizing headaches as “not too intense to manage” and as not
“happening very frequently”), 551 (reporting, on 9/21/21,
“occasional” headaches, that Plaintiff “can go months without
having [one],” that “[t]hey l[a]st approximately 30 minutes if she
stops and rests,” and that, “[o]ver the last year she has only had
[three] headaches”), 547 (23 days later on 10/14/21, inexplicably
describing headaches as “daily”), 874-77 (on 12/7/21, deeming
headaches “remarkable for how fast they come on, and how fast they
go away”), 1294-95 (on 3/17/22, complaining of “flareup the other
day ‘but it wasn’t full blast’”), 1490-94 (on 4/28/22, inexplicably
now claiming “moderate to severe headaches” occurring “[four] to
[five] times a week . . . for at least 12 years”), 1453-54 (14 days
later on 5/12/22, alleging pain from trigeminal neuralgia “every
[three to four] months” with “good results” on gabapentin), 1641-43
(on 11/10/22, recounting “[four] episodes of severe sharp pain on
her face” since June 2022). The ALJ (and not this Court) must
resolve such conflicts in the evidence, see Smith v. Chater, 99
F.3d 635, 638 (4th Cir. 1996) (“The duty to resolve conflicts in
the evidence rests with the ALJ, not with a reviewing court.”), and
thus the Court will not disturb the ALJ’s decision that Plaintiff’s
trigeminal neuralgia and headaches, although severe impairments
(see Tr. 17), did not cause, either singly or in combination with
her SBOs, a work-preclusive level of absence (see Tr. 20, 25).
22
In light of the foregoing analysis, Plaintiff’s first
assignment of error fails as a matter of law.
2. Frequency and Duration of Restroom Breaks
Lastly, Plaintiff contends that “[t]he ALJ erred by failing to
make appropriate findings concerning the frequency and duration of
Plaintiff’s need for breaks to use the bathroom due to bowel
urgency in the RFC.” (Docket Entry 10 at 14 (bold font and block
formatting omitted); see also Docket Entry 12 at 3-7.) In
particular, Plaintiff points to her “testi[mony] that she is on a
special diet for her intestinal problems and takes medication to
try and keep things moving[, that] when not experiencing an
obstruction, these medications cause her to use the restroom
frequently for bowel movements, at least five times per day”
(Docket Entry 10 at 14 (citing Tr. 66)), that “[s]he also continues
to experience cramping and nausea while not in the hospital” (id.
(citing Tr. 69)), and “that she wears protective pads ‘24/7’
because her bowel movements are urgent and sometimes, she does not
get to the bathroom in time and has an accident” (id. (purporting
to quote Tr. 67)). Plaintiff faults the ALJ’s inclusion in the RFC
of “‘access to indoor toilet facilities during routine employer-
provided breaks[]’”(id. (quoting Tr. 20)) on two grounds: 1) “if
[Plaintiff] only has access to a toilet when her employer allows
it, during three scheduled breaks in the eight-hour workday, then
this RFC finding in no way accounts for her urgency, incontinence,
23
and/or generally increased frequency of bowel movements” (id.
(internal parenthetical citation omitted)), and 2) “‘access to
indoor toilet facilities’ is a phrase which this Court and others
have repeatedly deemed too vague to be of use when determining an
individual’s off task time incurred due to a bowel or urinary
related medical condition[ and ] have held that ALJs must make
specific findings regarding the frequency and duration of a
claimant’s need for bathroom breaks” (id. at 15; see also id. at
15-16 (citing Dowling v. Commissioner of Soc. Sec., 986 F.3d 377,
389 (4th Cir. 2021), Benfield v. Saul, 827 F. App’x 297, 301 (4th
Cir. Sept. 24, 2020), Summey v. Berryhill, No. 1:16CV1185, 2018 WL
708355, at *3 (M.D.N.C. Feb. 5, 2018) (unpublished) (Peake, M.J.)
(citing Binder v. Colvin, No. 5:12CV271, 2013 WL 1686306, at *3
(E.D.N.C. Mar. 21, 2013) (unpublished), recommendation adopted,
2013 WL 1694678 (E.D.N.C. Apr. 18, 2013) (unpublished)),
recommendation adopted, slip op. (M.D.N.C. Feb. 22, 2018) (Biggs,
J.), Taylor _v. Astrue, No. 7:11CV162, 2012 WL 3637254, at *11
(E.D.N.C. Apr. 18, 2013) (unpublished), and Davis v. Commissioner
of Soc. Sec., No. 2:10CV30, 2011 WL 442118, at *1 (N.D.W. Va. Feb.
2, 2011) (unpublished))). Plaintiff additionally points out that
“[t]he VE testified that if [Plaintiff] had to use the restroom at
any time other than the scheduled breaks, then she would not be
employable in an unskilled work setting.” (Id. at 14 (citing Tr.
24
84-85) .) As the following analysis makes clear, Plaintiff’s
contentions miss the mark for two reasons.
First, the ALJ did include a finding regarding the frequency
and duration of Plaintiff’s need for restroom breaks - the ALJ
found that Plaintiff’s bowel symptoms required her to have “access
to indoor toilet facilities during routine employer-provided
breaks” (Tr. 20 (emphasis added). The VE testified that employers
provide three breaks during an eight-hour workday - a “morning,
afternoon, anda lunch break” (Tr. 85). See Social Security Ruling
96-9p, Policy Interpretation Ruling Titles II and XVI: Determining
Capacity to Do Other Work - Implications of a Residual Functional
Capacity for Less Than a Full Range of Sedentary Work, 1996 WL
374185, at *6 (July 2, 1996) (“SSR 96-9p”) (characterizing eight-
hour workday as having “a morning break, a lunch period, and an
afternoon break at approximately 2-hour intervals” (emphasis
added)). Thus, the ALJ found in the RFC that Plaintiff “c[ould]
use the bathroom during any of these breaks, as well as before and
after work, without being off-task during working hours,” Rhonda E.
G. v. Saul, No. 8:20CV1423, 2021 WL 2262552, at *7 (C.D. Cal. June
3, 2021) (unpublished); see also Mooney v. Kijakazi, No. 2:22CV35,
2023 WL 6319329, at *3 (S.D. Miss. July 31, 2023) (unpublished)
(“[I]t was not unreasonable for the ALJ to conclude that .. . [the
plaintiff’s] bathroom needs could be accommodated by the customary
work breaks.” (emphasis added)); Jude v. Kijakazi, No. 1:21CV10,
25
2021 WL 9569875, at *8 (S.D.W. Va. Nov. 17, 2021) (unpublished)
(finding no error in “ALJ[’s] conclu[sion] that [the c]laimant
could change her pads and address hygiene concerns outside of work
hours and during normal breaks and meals during the workday”
(emphasis added)), recommendation adopted, 2022 WL 4594501 (S.D.W.
Va. Sept. 30, 2022) (unpublished); Silvestro v. Berryhill, No.
4:16CV1150, 2017 WL 3840268, at *4, 6 (N.D. Ala. Sept. 1, 2017)
(unpublished) (holding that ALJ properly analyzed “frequency of
[the plaintiff’s] bathroom visits” by “includ[ing] a limitation in
the RFC to jobs that provided reasonable access to bathroom
facilities at usual _ and customary breaks in order to accommodate
[the p]Jlaintiff’s gastrointestinal symptoms” (emphasis added));
Fivecoat v. Colvin, No. 8:15CV703, 2016 WL 3660489 (M.D. Fla. June
15, 2016) (unpublished) (rejecting the plaintiff’s argument that
“ALJ failed to incorporate limitations related to [Plaintiff’s]
: : : neurogenic bladder[,]” where ALJ found that “[the
plaintiff’s] bladder issues clould] be accommodated within
customary regularly scheduled breaks and customary tolerance for
restroom breaks in the workplace” (emphasis added) (internal
quotation marks omitted)), recommendation adopted, 2016 WL 3595800
(M.D. Fla. July 5, 2016) (unpublished)
In contrast, in the cases on which Plaintiff relies, the ALJ
either failed to make any finding regarding the need for restroom
‘ The Westlaw publication of the Fivecoat case does not include star
pagination and thus the undersigned could not include a pinpoint citation.
26
breaks, see Dowling, 986 F.3d at 389 (“[T]he ALJ failed to analyze
whether [the plaintiff]’s RFC was impacted by her need to work near
a_ restroom and take frequent bathroom breaks.” (emphasis added));
Benfield, 827 F. App’x at 301 (“[T]he ALJ did not address the issue
of frequent urination in the RFC or elsewhere in her opinion.”
(emphasis added)), or found that the plaintiff must have access to
a restroom but failed to include a frequency and/or duration
component, see sSummey, 2018 WL 708355, at *3 (“[T]he
ALJ . . . determined that [the plaintiff . . . must have access to
bathroom facilities on an ‘as needed’ basis[,]” but “made_no
findings regarding the extent to which [the pJlaintiff required
unscheduled bathroom breaks, and there is thus no way to determine
the extent to which the frequency and length of such breaks could
potentially impact her ability to perform her job.” (emphasis
added)); Binder, 2013 WL 1686306, at *3 (“In assessing [the
pllaintiff’s RFC, the ALJ determined that [the p]laintiff required
access to the bathroom/toilet facilities in the work
environment[,]” but did not “make specific findings concerning the
frequency and duration of [the pllaintiff’s bathroom usage[,]” and
thus “the [court] c[ould J]Jnot determine whether the ALJ's
findings . . . were supported by substantial evidence” (emphasis
added) (internal citations and quotation marks omitted)); Taylor,
2012 WL 3637254, at *11 (“[T]he ALJ found [the plaintiff] capable
of performing her past relevant work as a receptionist .. . based
27
upon the testimony of the [VE], who testified that a receptionist
position would allow for . . . ready access to a bathroom at
will. . . . [T]he ALJ nevertheless failed to address the VE’s
testimony that a person needing to take an excessive number of
unscheduled bathroom breaks has the potential to be problematic.
Given the ALJ made no findings regarding to what extent [the
plaintiff] required unscheduled bathroom breaks, nor question[ed]
the VE as to his definition of excessive, there is simply no way to
conclude . . . that the ALJ’s step-four finding is supported by
substantial evidence.” (emphasis added) (internal parenthetical
citations, internal quotation marks, and brackets omitted)); Davis,
2011 WL 442118, at *1 (“[T]he ALJ [ ] include[d] in the plaintiff’s
[RFC] a required accommodation of placing the plaintiff close to
the bathroom. . . . [The c]ourt finds that more specific findings
regarding the frequency and duration of [the] plaintiff’s need for
the bathroom during the relevant time frame must necessarily also
be included.” (emphasis added)). Accordingly, those cases do not
provide the Court with any basis to find prejudicial error in this
case.
Second, Plaintiff has not cited to record evidence that would
have compelled the ALJ to adopt a greater frequency and/or duration
of restroom breaks in the RFC. Although Plaintiff points to her
subjective statements that, “when not experiencing an obstruction,
[her] medications cause her to use the restroom frequently for
28
bowel movements, at least five times per day” (Docket Entry 10 at
14 (emphasis added) (citing Tr. 66)), “that she wears protective
pads ‘24/7’ because her bowel movements are urgent and sometimes,
she does not get to the bathroom in time and has an accident” (id.
(purporting to quote Tr. 67)), and that her “[i]ncontinence has
increased” (id. at 16 (citing Tr. 310)), the ALJ found that
Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of [her] symptoms [we]re not entirely consistent
with the medical evidence and other evidence in the record” (Tr.
22). Significantly, Plaintiff has not challenged the ALJ’s
assessment of her subjective symptom reports. (See Docket Entries
10, 12.)
The ALJ further supported his discounting of Plaintiff’s
subjective statements by noting that “exam findings, high
functioning activities of daily living . . ., and [Plaintiff’s]
statements at medical visits regarding medication/treatment
efficacy are inconsistent with [her] testimony and statements that
she cannot work due to disabling [] recurrent [SBO] with chronic
constipation.” (Tr. 25.) Although Plaintiff points to her
subjective statement to her gastroenterologist, Dr. Farra Wilson,
on May 12, 2023 (four days before the ALJ’s hearing), that
Plaintiff “‘ha[d] some urgency’” and “‘w[ore] pads just in case’”
(Docket Entry 10 at 16 (quoting Tr. 2026)), Plaintiff did not
report having at least five bowel movements per day to Dr. Wilson
29
at any treatment visits (and, in fact, often complained of
constipation) (see Tr. 921-23 (4/27/21 reporting no bowel movements
“for [three] days”), 991-92 (7/27/21 complaining of constipation
and “bouts of days with only a small amount of stool”), 1075-77
(1/7/22 documenting “daily bowel movement on [medication]
regimen”), 1246-48 (2/24/21 first visit with Dr. Wilson prior to
prescription of Linzess stating that, “[a]t baseline, [Plaintiff]
can go a week without a bowel movement,” that “[s]he gets feeling
full then goes a lot all at once,” and that she “[f]eels good for
a few days and then the cycle starts again”), 1552-54 (11/11/22
recounting “an urgent, what she feels is complete, bowel movement
daily”), 1555-57 (8/3/22 describing one bowel movement in last
three days)), and no other visits in the record reflected either
complaints of five bowel movements per day or Plaintiff’s use of
protective pads (see Tr. 342-2024, 2030-66). Under such
circumstances, Plaintiff has simply not shown that the record
evidence compelled the ALJ to include work-preclusive restroom
breaks in the RFC. See Mooney, 2023 WL 6319329, at *3 (“[The
p]laintiff counters on appeal that the unpredictable and urgent
nature of his condition . . . would not allow him to wait until
scheduled work breaks, and that[,] despite his improvements, at his
best point medically, he still needed the bathroom as much as 3
times per day. But here again, in his last visit of record,
Plaintiff reported experiencing only 1 bowel movement [per day] and
30
never more than 3 (frequency) without the need for Imodium
(urgency). Without any objective medical evidence that his
condition worsened, or that he was precluded from going to the
bathroom before or after work, these arguments do not persuade.”
(internal quotation marks omitted)); compare Summey, 2018 WL
708355, at *3 (finding ALJ’s allowance of restroom use “as needed”
did not suffice, where “[the plaintiff’s] medical records reflect
that even when her condition was stable, she still reported 5–6
bowel movements each morning” (emphasis added) (internal quotation
marks omitted)).
In sum, Plaintiff’s second and final assignment of error fails
to establish a ground for remand.
III. CONCLUSION
Plaintiff has not established an error warranting relief.
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding no disability is AFFIRMED, and that this action is
DISMISSED with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 19, 2025
31