Opinion
5:21-CV-00111-D
05-04-2022
Francine Lewis, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE.
Plaintiff Francine Lewis challenges Administrative Law Judge (ALJ) Vincent Hill's denial of her application for social security income. Lewis claims that ALJ Hill erred in determining her residual functional capacity (RFC). Both Lewis and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 18, 21.
After reviewing the parties' arguments, the undersigned has determined that ALJ Hill erred in his determination. The RFC accommodates Lewis's need for restroom access but fails to specify the frequency and duration she would need the access. And the court should decline to determine whether the SSA's structure is constitutionally permissible. The undersigned thus recommends that the court grant Lewis's motion, deny Kijakazi's motion, and remand this matter to the Acting Commissioner for further consideration.,
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
Lewis also challenges the constitutionality of the Social Security Administration's structure. But the court should only reach this issue if it does not remand on the other issue she raised. Since this opinion recommends remand on the substantive issue, it will not address the constitutional issue.
I. Background
In April 2018, Lewis applied for disability benefits alleging a disability that began a month earlier. After the Social Security Administration denied her claim at the initial level and upon reconsideration, Lewis appeared for a hearing before ALJ Hill to determine whether she was entitled to benefits. ALJ Hill determined Lewis had no right to benefits because she was not disabled. Tr. at 12-25.
ALJ Hill found that Lewis's obesity, cervical degenerative disc disease with radiculopathy, right carpal tunnel syndrome, central pain syndrome, left knee dysfunction, dysfunction of the bilateral shoulders, urethral diverticulum, and lumbar back pain were severe impairments. Tr. at 14. ALJ Hill also found that Lewis's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 15.
ALJ Hill then determined that Lewis had the RFC to perform light work with other limitations. Tr. at 16. She can frequently climb ramps and stairs but she cannot climb ladders, ropes, or scaffolds. Id. Lewis can occasionally crawl and stoop. Id. She can frequently, but not continuously, operate foot controls with her lower left extremity. Id.
Lewis can have no more than occasional bilateral overhead reaching. Id. She can engage in frequent, but not continuous, handling and fingering with her dominant left upper extremity. Id. And she can occasionally handle and finger with her non-dominant right upper extremity. Id.
Lewis must avoid all exposure to hazardous machinery and unprotected heights. Id. And she must have ready access to a bathroom. Id.
ALJ Hill concluded that Lewis could not perform her past relevant work as a picker. Tr. at 23. But considering her age, education, work experience, and RFC, ALJ Hill found that other jobs existed in significant numbers in the national economy that Hill could perform. Tr. at 23-24. These jobs include usher, counter rental clerk, and children's attendant. Id. Thus, ALJ Hill found that Lewis was not disabled. Tr. at 24.
After unsuccessfully seeking review by the Appeals Council, Lewis commenced this action in March 2021. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it equals a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
The medical history relevant to Lewis's arguments relate to her urinary incontinence. So the undersigned limits the recapitulation of the medical evidence to that issue.
Lewis has a history of urinary incontinence. An August 2016 MRI showed a cystic structure surrounding the urethra consistent with diverticulum. Tr. at 1268. Lewis reported urine leakage with coughing, sneezing, and running two months later. Tr. at 572.
In November 2017, providers counseled Lewis about urethral diverticulum repair and the risk of altered voiding and continued incontinence. Tr. at 585. She underwent the surgical procedure later that month. Tr. at 825.
At a follow-up visit two months later, Lewis reported doing well overall but she continued to experience urinary incontinence which required changing a pad twice daily. Tr. at 587. By the next month, Lewis was experiencing urinary leakage all the time and changing her protective undergarments multiple times a day. Tr. at 590. A month later, she underwent a transvaginal tape, abdominal incisional hernia repair with mesh, and cystoscopy. Tr. at 831. She continued to report urine leakage the next month, but had improvement in overall leakage with fluid restriction. Tr. at 594.
A May 2018 CT scan of Lewis's abdomen caused providers to suspect that there were issues with the hernia repair she underwent. Tr. at 1377.
In June, Lewis continued to report mixed incontinence for which she wore adult diapers, but there was some improvement. Tr. at 1479.
Four months later, Lewis told providers that she did not always experience an urge to use the bathroom and sometimes voided without realizing it. Tr. at 2216. She estimated using a bathroom every 30 to 60 minutes. Id. She had continuous leakage throughout the day and wore protecting undergarments like pull-ups. Tr. at 2217. And Lewis sometimes had to change clothes because of leakage. Id.
In December 2018, Lewis experienced increased leakage and used a pessary. Tr. at 1885. She sought a second opinion the next month. Tr. at 1869. Lewis underwent a course of physical therapy. Tr. at 1857. She reported that leakage happened at rest but was more pronounced with activity. Id. And Lewis had to change her protective undergarments multiple times a day. Id.
In March 2019, Lewis sought treatment at UNC Healthcare. Tr. at 1737. She reported urinating ten times a day, leaking twenty times a day, and wearing between three and seven adult diapers per day. Tr. at 1740. She again reported continued leakage and wearing multiple pull-ups every day at a follow-up visit two months later. Tr. at 2370. And Lewis had to change her clothes a few times due to accidents. Id.
Later that month, Lewis underwent a transurethral bulking injection with cystoscopy and chemodenervation of the bladder with injection for her stress incontinence and refractory overactive bladder. Tr. at 2343. Under anesthesia, an examination showed significant detrusor overactivity. Id.
At a follow-up visit four months later, Lewis reported a 50 percent improvement with her urge and stress incontinence but her mixed urinary continence had worsened. Tr. at 2473. In March 2020, Lewis underwent a urodynamic evaluation for her severe mixed urinary incontinence. Tr. at 2667. Providers noted reduced sensation, demonstrated stress incontinence, and continuous leakage through CMG. Tr. at 2668. Providers suspected severe intrinsic sphincteric deficiency. Id.
Lewis underwent urethral bulking in July 2020. Tr. at 2701. Although material may have come out soon after the procedure, she again reported a 50 percent improvement. Id.
D. Residual Functional Capacity
Lewis contends that ALJ Hill erred in determining her RFC by failing to sufficiently address her need to have restroom access. The Acting Commissioner asserts that the RFC limitation for bathroom access adequately addresses her incontinence and related symptoms. The undersigned cannot conclude that substantial evidence supports ALJ Hill's RFC determination because he failed to offer greater specificity about Lewis's restroom use.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; SSR 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not “severe, ” when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.”).
The ALJ must provide “findings and determinations sufficiently articulated to permit meaningful judicial review.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activities, observations).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, “[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent “makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity “assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions” listed in the regulations. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p. The Ruling further explains that the residual functional capacity “assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id.
There is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]” Mascio, 780 F.3d at 636. But “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p.” (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010))).
ALJ Hill's RFC found that Lewis needed ready access to a bathroom. Tr. at 16. But Lewis claims that the failure to state the duration and frequency for restroom breaks limits a meaningfully review of the RFC. The Acting Commissioner contends that scheduled breaks (every two hours) could accommodate Lewis's use of a bathroom with sufficient frequency. The undersigned disagrees.
This court has held that an RFC limitation allowing for ready access to a bathroom, with no finding on the extent of bathroom breaks, warrants remand. Taylor v. Astrue, No. 7:11-CV-162-FL, 2012 WL 3637254, at *11 (E.D. N.C. Aug. 1, 2012), adopted by 2012 WL 3636923 (Aug. 22, 2012). In Taylor, the court noted that the ALJ identified neither the frequency nor the duration of the claimant's need for bathroom breaks, and the vocational expert offered no testimony on whether ready access to a bathroom would affect the claimant's ability to work. Id. Thus, given this unresolved issue, the court could not conclude that substantial evidence supported an ALJ's step four finding that a claimant could return to his past work. Id.
The medical record reveals that Lewis experienced continuing urine leakage, from urge, stress, and mixed incontinence. She changes her protective undergarments, and sometimes clothing, throughout the day.
Lewis underwent several procedures to address this condition, including urodynamic evaluation, urethral diverticulum repair, transurethral bulking injection with cystoscopy, chemodenervation of the bladder with injection, transvaginal tape, abdominal incisional hernia repair with mesh, and cystoscopy.
Objective evidence confirmed her condition. For instance, an MRI showed a cystic structure surrounding the urethra consistent with diverticulum. A CT scan of Lewis's abdomen revealed changes with associated rim-enhancing fluid collection concerning for seroma or abscess formation. Lewis had significant detrusor overactivity. And providers noted reduced sensation, demonstrated stress incontinence, and continuous leakage with severe intrinsic sphincteric deficiency suspected. ALJ Hill determined that ready access to a bathroom would address this severe impairment. Tr. at 22.
The Acting Commissioner points to Lewis's statements that she used the bathroom every 30 to 60 minutes, every one and a half to two hours, and every two to three hours. This evidence suggests that Lewis's statements are inconsistent about the frequency she uses the bathroom. Kijakazi also argues that needing a bathroom every two hours reflects using it on scheduled breaks. So the RFC would require no further accommodation for a condition that normal, scheduled breaks would satisfy.
But central to Lewis's argument, ALJ Hill did not find that scheduled breaks could meet her need for bathroom access, as Kijakazi claims. The undersigned declines to draw the inference she advances. This omission emphasizes the need for an ALJ to determine the frequency and duration of bathroom access in the first instance.
The Acting Commissioner's argument also overlooks the fact that Lewis continuously experiences urinary leakage. She had to change her protective undergarments up to seven times a day. And Lewis sometimes had to change her clothes due to accidents. So even if Lewis needed to use a bathroom to void every two hours, she may need additional and more frequent access to change her protective undergarments or clothing. And the potential for humiliation should she not be allowed bathroom access as needed outside of scheduled breaks is a factor to consider as well.
As Lewis points out, the frequency and duration of restroom use may exceed employers' tolerance for time off-task. So the limitation could affect her ability to perform work activities at a competitive level. The Vocational Expert testified that a need for bathroom use outside of scheduled breaks would eliminate two of the three jobs identified at step five. And depending on the frequency determined may also eliminate the availability of the third job ALJ Hill determined would be suitable for her.
ALJ Hill erred by making no findings about the frequency and duration of Lewis's bathroom use. This oversight warrants remand. See Binder v. Colvin, No. 5:12-CV-517-D, 2013 WL 1686306, at * 3 (E.D. N.C. Mar. 21, 2013) (“When an ALJ finds that a claimant has an impairment that requires him to have access to a bathroom, the ALJ should make specific findings concerning the frequency and duration of Plaintiff's bathroom usage.”), adopted by 2013 WL 1694678 (Apr. 18, 2013); Davis v. Comm'r of Soc. Sec., No. 2:10-CV-30, 2011 WL 442118, at *1 (N.D. W.Va. Feb. 2, 2011) (where the ALJ included in claimant's RFC “a required accommodation of placing claimant close to the bathroom, ” the ALJ erred in failing to include in the RFC “specific findings regarding the frequency and duration of plaintiff's need for the bathroom”); Green v. Astrue, No. 3:09-CV-331, 2010 WL 2901765, at *5 (E.D. Tenn. July 2, 2010) (where an ALJ finds 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).
Because this matter warrants more consideration, the undersigned recommends that the court grant Lewis's motion on this issue.
III. Conclusion
For these reasons, the undersigned recommends that the court grant Lewis's Motion for Judgment on the Pleadings (D.E. 18), deny Kijakazi's Motion for Judgment on the Pleadings (D.E. 21), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.