Wedner v. O'Malley
U.S. District Court, District of Minnesota
Wedner v. O'Malley
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Gerry W., Case No. 23-cv-2010 (ECW)
Plaintiff,
v. ORDER
Martin J. O’Malley, Commissioner
of Social Security Administration,
Defendant.
This matter is before the Court on Plaintiff Gerry W.’s (“Plaintiff”) Motion for
Summary Judgment (Dkt. 16); and Defendant Commissioner of Social Security
Administration, Martin J. O’Malley’s (“the Commissioner”) brief in opposition (Dkt.
19).1
I. PROCEDURAL BACKGROUND
On April 15, 2021, Plaintiff filed an application for Title II Disability Insurance
benefits alleging disability as of March 1, 2020, due to prostate cancer, a knee problem,
and a back problem. (R. 188-92, 231.)2 Plaintiff’s application was denied initially and on
reconsideration. (R. 70-83.) Plaintiff filed a written request for a hearing before an
1 As of December 1, 2022, Social Security Actions under 42 U.S.C. § 405(g) are “presented for decision on the parties’ briefs,” rather than summary judgment motions. Supplemental Rules for Social Security Actions under42 U.S.C. § 405
(g), Rule 5.
2 The Social Security Administrative Record (“R.”) is available at Docket 9.
administrative law judge and a hearing occurred on June 8, 2022, before Administrative
Law Judge Sarah R. Smisek (“the ALJ”). (R. 53-69.)
In a decision dated June 22, 2022, the ALJ concluded that Plaintiff was not
disabled. (R. 8-27.)
Following the five-step sequential evaluation process under 20 C.F.R.
§ 404.1520(a)(4),3 the ALJ first determined at step one that Plaintiff had not engaged in
substantial gainful activity since January 1, 2020 and that he met the insured status
requirements of the Social Security Act through December 31, 2024. (R. 14.)
At step two, the ALJ determined that Plaintiff had the following severe
impairments: status post prostate cancer status post radiation therapy, degenerative joint
disease of the knees, and umbilical hernia. (R. 14.)
3 The Eighth Circuit described this five-step process as follows:
The Commissioner of Social Security must evaluate: (1) whether the
claimant is presently engaged in a substantial gainful activity; (2) whether
the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling
impairment listed in the regulations; (4) whether the claimant has the residual
functional capacity to perform his or her past relevant work; and (5) if the
claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.
Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003) (citations omitted).
At the third step, the ALJ determined that Plaintiff did not have an impairment that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. part
404, subpart P, appendix 1. (R. 15-16.)
At step four, after reviewing the entire record, the ALJ concluded that Plaintiff had
the following residual functional capacity (“RFC”):
[T]o perform medium work as defined in 20 CFR 404.1567(c) except: lifting
and carrying 50 pounds occasionally and 25 pounds frequently; sitting for 6
hours and standing and/or walking for 6 hours out of an 8-hour workday;
occasional climbing of ladders, ropes, or scaffolds; frequent climbing of
ramps or stairs; frequent balancing, stooping, kneeling, crouching, and
crawling; no exposure to concentrated levels of wetness or vibration; no
exposure to workplace hazards, such as unprotected heights and dangerous
machinery.
(R. 16.)
The ALJ concluded, based on the above RFC and the testimony of the vocational
expert (“VE”), that given Plaintiff’s age, education, work experience, and RFC, that there
were other jobs that exist in significant numbers in the national economy that Plaintiff
could perform, including work as: Sealing Machine Operator (DOT No. 920.685-074)
and Hand Packager (DOT No. 920.587-018). (R. 22.)
Accordingly, the ALJ deemed Plaintiff not disabled. (R. 22.)
Plaintiff filed a request for review of this decision, and the Appeals Council denied
further review on May 11, 2023, which made the ALJ’s decision the final decision of the
Commissioner. (R. 1-5.)
Plaintiff now seeks judicial review pursuant to 42 U.S.C. § 405(g). (Dkt. 1.)
The Court has reviewed the entire administrative record, giving particular
attention to the facts and records cited by the parties. The Court will recount the facts of
record only to the extent they are helpful for context or necessary for resolution of the
specific issues presented by the parties.
II. RELEVANT RECORD
Plaintiff represented that he worked as a laborer until November 2019. (R. 221.)
Plaintiff quit his work due to being unable to physically do the work, as the result of
being on his feet, his blisters, and exhaustion. (R. 60-61.)
On November 21 and 29, 2019, Plaintiff reported no urinary urgency or frequency.
(R. 362, 368.)
On or about January 27, 2020, Plaintiff was notified of his diagnoses of prostate
cancer. (R. 347-50.) He was negative for incontinence or frequent urination. (R. 347.)
Plaintiff decided to proceed with radiation therapy. (R. 349.)
On March 5, 2020, Plaintiff reported he was “overall satisfied” and happy with his
urination. (R. 341, 344.)
On April 21, 2020, Plaintiff was notified that while he did have prostate cancer
proven by biopsy, it fortunately was not large enough to be visible on an MRI scan. (R.
338.)
On or about May 27, 2020, Plaintiff began radiotherapy for his prostate cancer.
(R. 329.) Plaintiff completed his course of radiation therapy on June 5, 2020. (R. 329,
321, 327.)
On June 3 and 9, 2020, it was noted that Plaintiff was tolerating radiation therapy
related to his prostate cancer, with a slight increase in urinary frequency and urgency. (R.
327, 328.) He was advised that urinary symptoms could progress over the next week or
two post-radiotherapy. (R. 327.)
On July 23 2020, Plaintiff was seen for a follow-up for his prostate cancer. (R.
325.) Plaintiff was “overall satisfied with his urination with mild urinary urgency.” (R.
325.)
On January 7, 2021, Plaintiff was seen for a follow-up for his prostate cancer. (R.
321.) From a urinary standpoint, Plaintiff denied dysuria4 or hematuria.5 (R. 321.) It
was noted that: “He does have urinary urgency, which does pre date his course of
radiotherapy. He feels that this may be slightly exacerbated post radiotherapy, but does
continue to improve with time.” (R. 321.)
On February 12, 2021, Plaintiff was seen for a radiation oncology progress
appointment. (R. 319.) Plaintiff claimed frequent urination, but noted a gradual
improvement. (R. 319.)
4 “Dysuria is the sensation of pain and/or burning, stinging, or itching of the urethra
or urethral meatus associated with urination. It is a prevalent urinary symptom
experienced by most people at least once in their lifetime. Dysuria typically occurs when
urine comes in contact with the inflamed or irritated urethral mucosal lining.”
https://www.ncbi.nlm.nih.gov/books/NBK549918/#:~:text=Dysuria%20is%20the%
20sensation%20of,least%20once%20in%20their%20lifetime (last visited July 2, 2024).
5 “Hematuria means there is blood in your urine.” https://www.niddk.nih.gov/
health-information/urologic-diseases/hematuria-blood-urine is (last visited July 2, 2024).
On March 9, 2021, Plaintiff was seen for urinary symptoms over the previous
week. (R. 316.) Plaintiff noted urinary frequency, urgency and terminal dysuria, some
hematuria, and did not feel as though he was emptying his bladder completely. (R. 316.)
Plaintiff was treated with the antibiotic Cipro. (R. 316, 318.)
On April 14, 2021, Plaintiff was seen for a progress appointment. (R. 314.)
Plaintiff reported severe urinary symptoms improved with antibiotic therapy, but he
continued to complain primarily of urinary frequency with some terminal dysuria. (R.
314.) According to Plaintiff’s doctor, “He reports ongoing urinary urgency, frequency
which in part predates his course of radiotherapy, but exacerbated after and new terminal
dysuria, partially improved with recent antibiotic therapy. I offered repeat urinalysis,
however patient declined.” (R. 315.)
In an August 19, 2021 radiation oncology report, it was noted that Plaintiff had
been evaluated in family medicine in March 2021 secondary to urinary frequency,
urgency, and terminal dysuria. (R. 311.) He was treated based on symptoms, with Cipro
250 mg twice daily for 5 days. (R. 311.) Plaintiff reported continued significant urinary
symptoms, but claimed that there was some improvement recently, primarily in decreased
frequency/interval between voids. (R. 311.) He felt that he incompletely empties the
bladder and experienced significant urgency. (R. 311.) With respect to his “significant”
urination symptoms, Plaintiff’s doctor suggested the use of Flomax,6 and recommended
an evaluation in urology, which Plaintiff declined. (R. 312.)
6 Flomax (Tamsulosin) is a drug used to treat urinary problems caused by an
enlarged prostate by relaxing the muscles of the prostate and bladder, which helps the
On October 12, 2021, Plaintiff complained of urinary concerns, and stated that he
continued “to suffer from increased urinary frequency and urgency” and “that he urinates
approximately once every 60-90 minutes.” (R. 449.) With respect to urinary symptoms
the following was provided:
Patient notes that he does have a chronic history of urinary urgency and
frequency. Reports that he does have intermittent episodes of dysuria. As
such, recommended urinalysis further evaluation. Patient declines UA as he
reports that he has had this completed the past on 3/9/2021. Urinalysis was
negative for nitrite and leukocyte esterase and urine culture grew mixed flora.
Patient was prescribed ciprofloxacin 250 mg twice daily for 5 days. Patient
notes that symptoms may have improved slightly with antibiotics but
continues to persist. Chart review indicates that he did discuss this with
radiation oncology during their appointment on 8/19/2021. Patient notes that
he is interested [in] initiation of Flomax. Will initiate patient on Flomax 0.4
mg daily. Discussed side effect profile associated with Flomax and
encouraged to discontinue if he experiences symptoms.
(R. 452.) Plaintiff was prescribed with Flomax. (R. 459.)
On October 26, 2021, Plaintiff reported no urinary complaints. (R. 448.)
On December 24, 2021, state agency doctor Sai Nimmagadda, MD found on
reconsideration that the medical record for Plaintiff showed “Some residual urinary
issues but no major complications.” (R. 78.)
On January 31, 2022, the last medical note in the record, Plaintiff was seen for his
annual examination. (R. 466.) Plaintiff reported urgency and frequent urination. (R.
466.) Plaintiff was not taking his Flomax. (R. 466.) No reason was provided for
discontinuing Flomax in the medical record. (R. 466.)
flow of urine. See https://www.cancer.gov/publications/dictionaries/cancer-
terms/def/Flomax (last visited July 2, 2024).
On November 24, 2021 and February 14, 2022, Plaintiff reported taking Flomax to
the SSA, and reported the side effect of sleepiness. (R. 265, 271.)
At the hearing before the ALJ, Plaintiff testified that he was constantly needing to
go the bathroom as a result of his radiation treatment. (R. 61.) He also claimed that his
urinary frequency was “anywhere from an hour and a half to two hours, at the most.” (R.
62.) Thereafter, Plaintiff’s lawyer at the hearing before the ALJ clarified as follows:
Q. Right, so every hour to an hour and half, you have to urinate.
A That’s correct. I just don’t have the capacity. I can’t hold it.
(R. 63.)
When the VE was asked if any of the jobs provided as result of ALJ’s hypothetical
could accommodate the need to take a break every hour and a half throughout the eight-
hour day, the VE testified that the hypothetical individual would not be able to perform
the listed jobs. (R. 67-68.)
III. LEGAL STANDARD
Judicial review of an ALJ’s denial of benefits is limited to determining whether
substantial evidence on the record as a whole supports the decision, 42 U.S.C. § 405(g); Chismarich v. Berryhill,888 F.3d 978, 979
(8th Cir. 2018), or whether the ALJ’s decision results from an error in law, Nash v. Comm’r, Soc. Sec. Admin.907 F.3d 1086, 1089
(8th Cir. 2018). As defined by the Supreme Court:
The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency factfinding.
Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains sufficient evidence to
support the agency’s factual determinations. And whatever the meaning of
“substantial” in other contexts, the threshold for such evidentiary sufficiency
is not high. Substantial evidence . . . is more than a mere scintilla. It means—
and means only—such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
“[T]his court considers evidence that detracts from the Commissioner’s decision
as well as evidence that supports it.” Nash, 907 F.3d at 1089(marks and citation omitted). “If substantial evidence supports the Commissioner’s conclusions, this court does not reverse even if it would reach a different conclusion, or merely because substantial evidence also supports the contrary outcome.”Id.
“In other words, if it is possible to reach two inconsistent positions from the evidence, and one of those positions is that of the [ALJ], the Court must affirm the decision.” Jacob R. v. Saul, No. 19-CV- 2298 (HB),2020 WL 5642489
, at *3 (D. Minn. Sept. 22, 2020) (citing Robinson v. Sullivan,956 F.2d 836, 838
(8th Cir. 1992)).
IV. DISCUSSION
Plaintiff argues that the ALJ’s RFC improperly discounted his urinary urgency and
frequency by relying on the fact that Plaintiff was not taking his prescribed medication
Flomax, and by mischaracterizing the record by finding that his urinary urgency and
frequency predates the onset date of his disability during which he was able to engage in
full-time work. (Dkt. 17 at 8.) Plaintiff contends that the ALJ’s adverse inference was in
error because she did not consider possible reasons he did not comply with treatment by
taking Flomax or seek treatment consistent with Social Security Rule 16-3p, and instead
relied on one medical note in January 2022. (Id. at 8-9.) Plaintiff points to his reports to
the Social Security Administration that Flomax made him sleepy and therefore, the ALJ’s
discounting Plaintiff’s urinary problems because of one treatment note stating he was not
using Flomax is not supported by substantial evidence. (Id at 10.) In addition, Plaintiff
takes issue with the ALJ’s assertion that his urination condition predated his alleged onset
date and that he worked with this condition, on the basis that there is nothing in the
record about Plaintiff’s urinary frequency while working, and the fact that his urination
problems worsened after his prostate cancer and treatment. (Id. at 10-11.)
The Commissioner counters that the ALJ reasonably found that the RFC
limitations for time off-task or additional breaks due to alleged urinary urgency were not
warranted, as Plaintiff failed to meet his burden to establish such a limitation, noting that
there was only one medical record where Plaintiff specifically reported urinating every
60-90 minutes and his own testimony that he needed to go to the bathroom anywhere
from an hour and a half to two hours, at the most. (Dkt. 19 at 7-8, 10.) The
Commissioner also argues that the ALJ was not “playing doctor” with respect to the
failure of Plaintiff to take his Flomax, as the last medical appointment in the record noted
he was not taking the medication and there was nothing in the record to corroborate any
claimed side effect. (Id at 8-9.) The Commissioner also argues that while the VE
testified that there would be no jobs available for an individual who had to take a break
every hour and a half throughout an eight-hour workday, the VE did not address
bathroom breaks, which the Commissioner contends “would likely be of shorter duration
than a ‘break’ as typically defined. (Id. at 10.) The Commissioner also contends that
there is no support for Plaintiff’s claimed need to use the bathroom every 60 to 90
minutes outside of one medical record. (Id. at 11.)
“A disability claimant has the burden to establish [his] RFC.” Eichelberger v.
Barnhart, 390 F.3d 584, 591(8th Cir. 2004). Courts have found reversible error where an ALJ “fails to account for any bathroom breaks [a claimant] would need” during the workday as part of an RFC. See, e.g., Jacob D. v. Kijakazi, No. 20-CV-0554,2021 WL 3674610
, at *3 (N.D. Ill. Aug. 19, 2021) (collecting cases). The Eighth Circuit has held that “a ‘claimant’s residual functional capacity is a medical question.’” Eichelberger,390 F.3d at 591
. (quoting Lauer v. Apfel,245 F.3d 700, 704
(8th Cir. 2001)). “‘[S]ome medical evidence’ must support the determination of the claimant’s RFC, and the ALJ should obtain medical evidence that addresses the claimant’s ‘ability to function in the workplace.’”Id.
(quoting Dykes v. Apfel,223 F.3d 865, 867
(8th Cir. 2000) (per curiam)). However, “there is no requirement that an RFC finding be supported by a specific medical opinion.” Hensley v. Colvin,829 F.3d 926, 932
(8th Cir. 2016) (citing Myers v. Colvin,721 F.3d 521, 526-27
(8th Cir. 2013); Perks v. Astrue,687 F.3d 1086, 1092-93
(8th Cir. 2012)). Rather, the RFC should be “based on all of the relevant evidence, including the medical records, observations of treating physicians and others, and an individual’s own description of [her] limitations.”Id.
(quoting Myers,721 F.3d at 527
). Indeed, “‘[e]ven though the RFC assessment draws from medical sources for support, it is ultimately an administrative determination reserved to the Commissioner.’” Perks,687 F.3d at 1092
(quoting Cox, 495 F.3d at 619-20) (citations omitted). That said, an ALJ may not simply draw his own inferences about a claimant’s functional ability from medical reports. See Koch v. Kijakazi,4 F.4th 656, 667
(8th Cir. 2021) (citation
omitted).
As stated previously, the ALJ set forth the following RFC for Plaintiff:
[T]o perform medium work as defined in 20 CFR 404.1567(c) except: lifting
and carrying 50 pounds occasionally and 25 pounds frequently; sitting for 6
hours and standing and/or walking for 6 hours out of an 8-hour workday;
occasional climbing of ladders, ropes, or scaffolds; frequent climbing of
ramps or stairs; frequent balancing, stooping, kneeling, crouching, and
crawling; no exposure to concentrated levels of wetness or vibration; no
exposure to workplace hazards, such as unprotected heights and dangerous
machinery.
(R. 16.)
With respect to Plaintiff’s claims of urinary urgency the ALJ found as follows:
The claimant testified to successful treatment for prostate cancer but has
ongoing urinary urgency about every one to one and a half hours, which he
believes is work preclusive. (See Id.).
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’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 for the reasons explained in this decision.
* * *
As of early 2022, his PSA had improved to 0.5 from 5.0 in November 2019.
While he did has [sic] complained of urinary urgency, which predates the
AOD, he has not complied with prescribed medication (Flomax) for this.
* * *
While the claimant did have ongoing complaints of urinary urgency and
spikes in his PSA level in early 2021, the latter showed significant
improvement by August 2021 when [he] had a PSA of 1.9 and declined
urological evaluation prior to being prescribed Flomax for urinary urgency.
(See Exhibit 1F/4-5, 8, 13, 14- 15). In October 2021, the claimant was
amenable to starting Flomax for urinary urgency. (See Exhibit 2F/11). As of
January 2022, the claimant continued to complain of urinary urgency and
frequent urination but was not taking his prescribed Flomax.
* * *
Notably, the undersigned has not made any allowance for additional breaks
and/or time off task in the residual functional capacity for the claimant’s
urinary urgency. Establishing off task limitations are the claimant's burden
and that burden has not been met here. As discussed above, despite
complaints of urinary urgency, the claimant was noted as not taking
prescribed Flomax in April 2022. (See Exhibit 4F/3). In addition, this
impairment predates his AOD and he was able to engage in fulltime work
with these symptoms without complaints.
(R. 17-19.)
As set forth above, an ALJ must determine a Plaintiff’s RFC based on all of the
relevant evidence, including his own description of his limitations. See Myers, 721 F.3d
at 527(citation omitted). An ALJ should consider several factors, in addition to the objective medical evidence, in assessing a claimant’s subjective symptoms, including daily activities; work history; intensity, duration, and frequency of symptoms; any side effects and efficacy of medications; triggering and aggravating factors; and functional restrictions. See Polaski v. Heckler,739 F.2d 1320, 1322
(8th Cir. 1984); Social Security Ruling (“SSR”) 16-3p,2016 WL 1119029
, at *5-7 (S.S.A. Mar. 16, 2016) (listing these factors as relevant in evaluating the intensity, persistence, and limiting effects of a person’s symptoms). But the ALJ need not explicitly discuss each factor. See Goff v. Barnhart,421 F.3d 785, 791
(8th Cir. 2005).
The Court first considers Plaintiff’s argument that the ALJ improperly discounted
his urinary urgency and frequency and by mischaracterizing the record. (Dkt. 17 at 8.)
Contrary to the ALJ’s finding, there is no evidence in the record establishing that
Plaintiff’s urinary urgency started while he was working or prior to March 1, 2020, the
date of his claimed onset of disability. The ALJ did not cite any portion of the record to
support her assertion that this condition predated the alleged onset date. Based on the
record, Plaintiff quit his work in November 2019 due to physical symptoms. (R. 60-61,
221.) Further, the available medical record includes the following representations from
Plaintiff to medical providers that he did not suffer from urinary urgency: on November
21 and 29, 2019; on January 27, 2020, when he was notified of his cancer diagnosis; and
on March 5, 2020, when he claimed he was happy and overall satisfied with his urination.
(R. 341, 344, 347, 362, 368.) It was only after his radiation therapy that Plaintiff began
reporting issues with his urination, beginning in early June through July 23, 2020. (See,
e.g., R. 325, 327-28.) The Commissioner argues that Plaintiff admitted “that his urinary
urgency/frequency ‘in part predated his course of radiotherapy’” based on an April 14,
2021 medical record. (Dkt. 18 at 11 (citing R. 315) (cleaned up).) The April 14, 2021
medical record states: “[Plaintiff] reports ongoing urinary urgency, frequency which in
part predates his course of radiotherapy, but exacerbated after and new a terminal
dysuria, partially improved with recent antibiotic therapy.” (R. 315.) However, there is
no evidence in the record that Plaintiff experienced urinary urgency or frequency issues
while he was working through November 2019 or any time prior to March 1, 2020.
Further, there is no dispute that Plaintiff’s urinary urgency was exacerbated by the
radiotherapy, as is borne out by the medical records from February 2021 through October
21, 2021—including the April 14, 2021 record relied on by the Commissioner. (See, e.g.,
R. 311-12, 314-15, 316-18, 319, 449, 452.) In fact, doctors notified Plaintiff that the
radiotherapy for his prostate cancer could lead to urinary urgency. (R. 327.) The medical
record supports the exacerbation of Plaintiff’s urinary urgency—including the statement
to medical providers that he needed to urinate every 60 to 90 minutes, and seeking
medical relief regarding the same, on October 12, 2021. (R. 449, 452.) It was only after
Plaintiff started taking Flomax, beginning in October 2021, that Plaintiff reported no
urinary complaints. (R. 459, 448.) Indeed, the Commissioner appears to concede that the
ALJ misread the record with respect to whether Plaintiff experienced urinary urgency or
frequency concerns before the alleged onset date, noting that “the ALJ’s apparent
misreading that this symptom existed prior to his alleged onset date.” (Dkt. 19 at 10.)
In sum, the Court finds that substantial evidence in the record does not support the
ALJ’s assertion that Plaintiff suffered from urinary urgency, or the same level of urgency,
prior to ending his employment or prior to his claimed onset of disability. The Court
makes no finding as to when the urinary urgency rose to the level where additional
restrictions, if any, would have become necessary during the relevant period and remands
to the ALJ to make such a finding.
The only other support provided by the ALJ for discounting Plaintiff’s claims of
urinary urgency is his failure to continue taking Flomax, which appeared to provide him
with relief. (R. 19). A failure to follow a recommended course of treatment weighs
against a claimant’s subjective complaints. See Fatuma A. v. Saul, No. 19-CV-3160
(WMW/LIB), 2021 WL 616522, at *7 (D. Minn. Jan. 26, 2021), R. & R. adopted,2021 WL 615414
(D. Minn. Feb. 17, 2021) (citing Wagner v. Astrue,499 F.3d 842, 851
(8th Cir. 2007)). However, an ALJ is required to consider reasons why a claimant failed to comply with treatment and provide an explanation of how they considered those reasons in their determination. See Mashona M. v. Kijakazi, No. 21-CV-00633 (HB),2022 WL 2220918
, at *12 (D. Minn. June 21, 2022). Indeed, Social Security Ruling (“SSR”)16-3p
provides:
We will not find an individual’s symptoms inconsistent with the evidence in
the record on [the basis of non-compliance with treatment] without
considering possible reasons he or she may not comply with treatment or
seek treatment consistent with the degree of his or her complaints . . . We
will explain how we considered the individual’s reasons.
SSR 16-3p, 2017 WL 5180304, at *9-10 (S.S.A. Oct. 25, 2017).
Here, Plaintiff twice represented to the SSA that Flomax caused him sleepiness.
(R. 265, 271). The ALJ did not follow SSR 16-3p because she never addressed
Plaintiff’s assertion of sleepiness with Flomax. See 20 C.F.R. § 402.35(b)(1) (rulings are
binding on ALJs). On remand, the ALJ must consider Plaintiff’s noncompliance with
Flomax treatment in a manner consistent with SSR 16-3p in light of Plaintiff’s claims that
the medication made him sleepy.
The Commissioner argues that the ALJ did not base the disability finding solely
on Plaintiff’s failure to take Flomax, nor on the ALJ’s apparent misreading that this
symptom existed prior to his alleged onset date. (Dkt. 19 at 8-10.) While the Court
agrees that the ALJ considered the evidence with respect to Plaintiff’s urinary problems
(R. 17-19), the ALJ acknowledged the urinary frequency problems but decided not to
provide any allowance for additional breaks and/or time off task in the RFC because the
ALJ believed the symptoms existed prior to his alleged onset date and because Plaintiff
was not taking his prescribed Flomax (R. 19).
In any event, the evidence available, as set forth above, supports that Plaintiff was
suffering from chronic urinary frequency problems from February 2021 through October
2021, when he began taking Flomax, and then again when he stopped taking the
medication. As noted by the Commissioner, the ALJ claimed significant improvement by
Plaintiff in April 2021. However, the medical record shows that while Plaintiff noted
some improvement he still suffered from “significant urgency.” (R. 311.) There is
nothing in this record suggesting that no limitations were necessary during the period,
especially given the record of chronic urinary problems and that the next medical note
regarding this issue, dated October 12, 2021, stated that Plaintiff was urinating every 60
to 90 minutes and “does continue to suffer from increased urinary frequency and
urgency.” (R. 449.)
The Commissioner also argues that while the VE testified that there would be no
jobs available for an individual who had to “take a break every hour and a half
throughout the eight-hour day” (R. 66-67), Plaintiff’s attorney did not ask the VE about
bathroom breaks, which would likely to be of shorter duration than a “break” as typically
defined under SSR 96-9p, and that Plaintiff testified that he could go without urinating up
to every two hours in an eight-hour work day (Dkt. 19 at 8, 10). The Court rejects this
argument. First, the ALJ did not assert this as a basis for denying benefits and the Court
may not accept or manufacture post hoc rationales for the ALJ’s decisions. See Ronald
V. v. Kijakazi, No. 22-CV-2140 (TNL), 2023 WL 6318276, at *6 (D. Minn. Sept. 28,
2023) (“[T]he ALJ’s decision cannot be sustained on the basis of the post-hoc
rationalizations of appellate counsel.”) (collecting cases). Indeed, the ALJ only stated in
her opinion that she did “not ma[k]e any allowance for additional breaks”; she did not set
forth what the standard allowances were for any kind of breaks and how they
accommodated any limitations. In addition, this argument misstates Plaintiff’s testimony,
which was clarified by his counsel that he could only go up to an hour and a half before
needing to use a bathroom. Notably, the ALJ acknowledged Plaintiff’s testimony that
“ongoing urinary urgency about every one to one and a half hours” (R. 17) and did not
rely on Plaintiff’s earlier testimony that “it’s an hour – anywhere from an hour and a half
to two hours at the most” (R. 62).
Moreover, SSR 96-9p does not govern the medium position assigned to Plaintiff
by the ALJ in the RFC. It pertains to breaks for sedentary work and provides that
customary breaks during a workday include: “a morning break, a lunch period, and an
afternoon break at approximately 2-hour intervals.” See SSR 96-9p, 1996 WL 374185, at *6 (July 2, 1996). Even if SSR 96-9p applies to the medium positions identified for Plaintiff at step five, the ruling only provides for three breaks during an 8-hour working day at 2-hour intervals. Assuming that Plaintiff could tolerate a bathroom break every two hours, SSR 96-9p would not account for the last three hours of the workday. It is important to note that a VE may testify that an employer would tolerate a typical bathroom break every two hours, but the VE was never asked this as part of a hypothetical. See, e.g., Nicole S. v. Kijakazi, No. 2:22-cv-06655-HDV (ADS),2023 WL 9107289
, at *1 (C.D. Cal. Dec. 28, 2023) (adopting VE testimony that employers would
tolerate a worker being off task, including for bathroom breaks, for “six minutes an hour”
or twelve minutes in a “two-hour block”).
In sum, the Court remands this case for further proceedings. Specifically, on
remand, the ALJ may inquire of a VE whether an employer would tolerate a bathroom
break every two hours to the extent that it is the position of the ALJ that Plaintiff can
tolerate urinating every two hours (or any other period(s) supported by the record) as part
of the RFC. See Binder v. Colvin, No. 5:12-CV-271-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. Because the ALJ did not do so here, the undersigned cannot determine whether the ALJ’s findings— particularly his step five finding—were supported by substantial evidence.”) (cleaned up), R. & R. adopted,2013 WL 1694678
(E.D.N.C. Apr. 18, 2013).
V. ORDER
Based on the above, and on the files, records, and proceedings herein, IT IS
ORDERED that:
1. Plaintiff’s Motion for Summary Judgment (Dkt. 17) is GRANTED in part;
2. Defendant Commissioner of Social Security Administration, Martin J.
O’Malley’s opposition (Dkt. 19) is DENIED; and
3. This case is REMANDED to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g) for further administrative proceedings consistent with the Court’s
Order.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: July 2, 2024 s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Gerry W., Case No. 23-cv-2010 (ECW)
Plaintiff,
v. ORDER
Martin J. O’Malley, Commissioner
of Social Security Administration,
Defendant.
This matter is before the Court on Plaintiff Gerry W.’s (“Plaintiff”) Motion for
Summary Judgment (Dkt. 16); and Defendant Commissioner of Social Security
Administration, Martin J. O’Malley’s (“the Commissioner”) brief in opposition (Dkt.
19).1
I. PROCEDURAL BACKGROUND
On April 15, 2021, Plaintiff filed an application for Title II Disability Insurance
benefits alleging disability as of March 1, 2020, due to prostate cancer, a knee problem,
and a back problem. (R. 188-92, 231.)2 Plaintiff’s application was denied initially and on
reconsideration. (R. 70-83.) Plaintiff filed a written request for a hearing before an
1 As of December 1, 2022, Social Security Actions under 42 U.S.C. § 405(g) are “presented for decision on the parties’ briefs,” rather than summary judgment motions. Supplemental Rules for Social Security Actions under42 U.S.C. § 405
(g), Rule 5.
2 The Social Security Administrative Record (“R.”) is available at Docket 9.
administrative law judge and a hearing occurred on June 8, 2022, before Administrative
Law Judge Sarah R. Smisek (“the ALJ”). (R. 53-69.)
In a decision dated June 22, 2022, the ALJ concluded that Plaintiff was not
disabled. (R. 8-27.)
Following the five-step sequential evaluation process under 20 C.F.R.
§ 404.1520(a)(4),3 the ALJ first determined at step one that Plaintiff had not engaged in
substantial gainful activity since January 1, 2020 and that he met the insured status
requirements of the Social Security Act through December 31, 2024. (R. 14.)
At step two, the ALJ determined that Plaintiff had the following severe
impairments: status post prostate cancer status post radiation therapy, degenerative joint
disease of the knees, and umbilical hernia. (R. 14.)
3 The Eighth Circuit described this five-step process as follows:
The Commissioner of Social Security must evaluate: (1) whether the
claimant is presently engaged in a substantial gainful activity; (2) whether
the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively disabling
impairment listed in the regulations; (4) whether the claimant has the residual
functional capacity to perform his or her past relevant work; and (5) if the
claimant cannot perform the past work, the burden shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.
Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003) (citations omitted).
At the third step, the ALJ determined that Plaintiff did not have an impairment that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. part
404, subpart P, appendix 1. (R. 15-16.)
At step four, after reviewing the entire record, the ALJ concluded that Plaintiff had
the following residual functional capacity (“RFC”):
[T]o perform medium work as defined in 20 CFR 404.1567(c) except: lifting
and carrying 50 pounds occasionally and 25 pounds frequently; sitting for 6
hours and standing and/or walking for 6 hours out of an 8-hour workday;
occasional climbing of ladders, ropes, or scaffolds; frequent climbing of
ramps or stairs; frequent balancing, stooping, kneeling, crouching, and
crawling; no exposure to concentrated levels of wetness or vibration; no
exposure to workplace hazards, such as unprotected heights and dangerous
machinery.
(R. 16.)
The ALJ concluded, based on the above RFC and the testimony of the vocational
expert (“VE”), that given Plaintiff’s age, education, work experience, and RFC, that there
were other jobs that exist in significant numbers in the national economy that Plaintiff
could perform, including work as: Sealing Machine Operator (DOT No. 920.685-074)
and Hand Packager (DOT No. 920.587-018). (R. 22.)
Accordingly, the ALJ deemed Plaintiff not disabled. (R. 22.)
Plaintiff filed a request for review of this decision, and the Appeals Council denied
further review on May 11, 2023, which made the ALJ’s decision the final decision of the
Commissioner. (R. 1-5.)
Plaintiff now seeks judicial review pursuant to 42 U.S.C. § 405(g). (Dkt. 1.)
The Court has reviewed the entire administrative record, giving particular
attention to the facts and records cited by the parties. The Court will recount the facts of
record only to the extent they are helpful for context or necessary for resolution of the
specific issues presented by the parties.
II. RELEVANT RECORD
Plaintiff represented that he worked as a laborer until November 2019. (R. 221.)
Plaintiff quit his work due to being unable to physically do the work, as the result of
being on his feet, his blisters, and exhaustion. (R. 60-61.)
On November 21 and 29, 2019, Plaintiff reported no urinary urgency or frequency.
(R. 362, 368.)
On or about January 27, 2020, Plaintiff was notified of his diagnoses of prostate
cancer. (R. 347-50.) He was negative for incontinence or frequent urination. (R. 347.)
Plaintiff decided to proceed with radiation therapy. (R. 349.)
On March 5, 2020, Plaintiff reported he was “overall satisfied” and happy with his
urination. (R. 341, 344.)
On April 21, 2020, Plaintiff was notified that while he did have prostate cancer
proven by biopsy, it fortunately was not large enough to be visible on an MRI scan. (R.
338.)
On or about May 27, 2020, Plaintiff began radiotherapy for his prostate cancer.
(R. 329.) Plaintiff completed his course of radiation therapy on June 5, 2020. (R. 329,
321, 327.)
On June 3 and 9, 2020, it was noted that Plaintiff was tolerating radiation therapy
related to his prostate cancer, with a slight increase in urinary frequency and urgency. (R.
327, 328.) He was advised that urinary symptoms could progress over the next week or
two post-radiotherapy. (R. 327.)
On July 23 2020, Plaintiff was seen for a follow-up for his prostate cancer. (R.
325.) Plaintiff was “overall satisfied with his urination with mild urinary urgency.” (R.
325.)
On January 7, 2021, Plaintiff was seen for a follow-up for his prostate cancer. (R.
321.) From a urinary standpoint, Plaintiff denied dysuria4 or hematuria.5 (R. 321.) It
was noted that: “He does have urinary urgency, which does pre date his course of
radiotherapy. He feels that this may be slightly exacerbated post radiotherapy, but does
continue to improve with time.” (R. 321.)
On February 12, 2021, Plaintiff was seen for a radiation oncology progress
appointment. (R. 319.) Plaintiff claimed frequent urination, but noted a gradual
improvement. (R. 319.)
4 “Dysuria is the sensation of pain and/or burning, stinging, or itching of the urethra
or urethral meatus associated with urination. It is a prevalent urinary symptom
experienced by most people at least once in their lifetime. Dysuria typically occurs when
urine comes in contact with the inflamed or irritated urethral mucosal lining.”
https://www.ncbi.nlm.nih.gov/books/NBK549918/#:~:text=Dysuria%20is%20the%
20sensation%20of,least%20once%20in%20their%20lifetime (last visited July 2, 2024).
5 “Hematuria means there is blood in your urine.” https://www.niddk.nih.gov/
health-information/urologic-diseases/hematuria-blood-urine is (last visited July 2, 2024).
On March 9, 2021, Plaintiff was seen for urinary symptoms over the previous
week. (R. 316.) Plaintiff noted urinary frequency, urgency and terminal dysuria, some
hematuria, and did not feel as though he was emptying his bladder completely. (R. 316.)
Plaintiff was treated with the antibiotic Cipro. (R. 316, 318.)
On April 14, 2021, Plaintiff was seen for a progress appointment. (R. 314.)
Plaintiff reported severe urinary symptoms improved with antibiotic therapy, but he
continued to complain primarily of urinary frequency with some terminal dysuria. (R.
314.) According to Plaintiff’s doctor, “He reports ongoing urinary urgency, frequency
which in part predates his course of radiotherapy, but exacerbated after and new terminal
dysuria, partially improved with recent antibiotic therapy. I offered repeat urinalysis,
however patient declined.” (R. 315.)
In an August 19, 2021 radiation oncology report, it was noted that Plaintiff had
been evaluated in family medicine in March 2021 secondary to urinary frequency,
urgency, and terminal dysuria. (R. 311.) He was treated based on symptoms, with Cipro
250 mg twice daily for 5 days. (R. 311.) Plaintiff reported continued significant urinary
symptoms, but claimed that there was some improvement recently, primarily in decreased
frequency/interval between voids. (R. 311.) He felt that he incompletely empties the
bladder and experienced significant urgency. (R. 311.) With respect to his “significant”
urination symptoms, Plaintiff’s doctor suggested the use of Flomax,6 and recommended
an evaluation in urology, which Plaintiff declined. (R. 312.)
6 Flomax (Tamsulosin) is a drug used to treat urinary problems caused by an
enlarged prostate by relaxing the muscles of the prostate and bladder, which helps the
On October 12, 2021, Plaintiff complained of urinary concerns, and stated that he
continued “to suffer from increased urinary frequency and urgency” and “that he urinates
approximately once every 60-90 minutes.” (R. 449.) With respect to urinary symptoms
the following was provided:
Patient notes that he does have a chronic history of urinary urgency and
frequency. Reports that he does have intermittent episodes of dysuria. As
such, recommended urinalysis further evaluation. Patient declines UA as he
reports that he has had this completed the past on 3/9/2021. Urinalysis was
negative for nitrite and leukocyte esterase and urine culture grew mixed flora.
Patient was prescribed ciprofloxacin 250 mg twice daily for 5 days. Patient
notes that symptoms may have improved slightly with antibiotics but
continues to persist. Chart review indicates that he did discuss this with
radiation oncology during their appointment on 8/19/2021. Patient notes that
he is interested [in] initiation of Flomax. Will initiate patient on Flomax 0.4
mg daily. Discussed side effect profile associated with Flomax and
encouraged to discontinue if he experiences symptoms.
(R. 452.) Plaintiff was prescribed with Flomax. (R. 459.)
On October 26, 2021, Plaintiff reported no urinary complaints. (R. 448.)
On December 24, 2021, state agency doctor Sai Nimmagadda, MD found on
reconsideration that the medical record for Plaintiff showed “Some residual urinary
issues but no major complications.” (R. 78.)
On January 31, 2022, the last medical note in the record, Plaintiff was seen for his
annual examination. (R. 466.) Plaintiff reported urgency and frequent urination. (R.
466.) Plaintiff was not taking his Flomax. (R. 466.) No reason was provided for
discontinuing Flomax in the medical record. (R. 466.)
flow of urine. See https://www.cancer.gov/publications/dictionaries/cancer-
terms/def/Flomax (last visited July 2, 2024).
On November 24, 2021 and February 14, 2022, Plaintiff reported taking Flomax to
the SSA, and reported the side effect of sleepiness. (R. 265, 271.)
At the hearing before the ALJ, Plaintiff testified that he was constantly needing to
go the bathroom as a result of his radiation treatment. (R. 61.) He also claimed that his
urinary frequency was “anywhere from an hour and a half to two hours, at the most.” (R.
62.) Thereafter, Plaintiff’s lawyer at the hearing before the ALJ clarified as follows:
Q. Right, so every hour to an hour and half, you have to urinate.
A That’s correct. I just don’t have the capacity. I can’t hold it.
(R. 63.)
When the VE was asked if any of the jobs provided as result of ALJ’s hypothetical
could accommodate the need to take a break every hour and a half throughout the eight-
hour day, the VE testified that the hypothetical individual would not be able to perform
the listed jobs. (R. 67-68.)
III. LEGAL STANDARD
Judicial review of an ALJ’s denial of benefits is limited to determining whether
substantial evidence on the record as a whole supports the decision, 42 U.S.C. § 405(g); Chismarich v. Berryhill,888 F.3d 978, 979
(8th Cir. 2018), or whether the ALJ’s decision results from an error in law, Nash v. Comm’r, Soc. Sec. Admin.907 F.3d 1086, 1089
(8th Cir. 2018). As defined by the Supreme Court:
The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency factfinding.
Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains sufficient evidence to
support the agency’s factual determinations. And whatever the meaning of
“substantial” in other contexts, the threshold for such evidentiary sufficiency
is not high. Substantial evidence . . . is more than a mere scintilla. It means—
and means only—such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
“[T]his court considers evidence that detracts from the Commissioner’s decision
as well as evidence that supports it.” Nash, 907 F.3d at 1089(marks and citation omitted). “If substantial evidence supports the Commissioner’s conclusions, this court does not reverse even if it would reach a different conclusion, or merely because substantial evidence also supports the contrary outcome.”Id.
“In other words, if it is possible to reach two inconsistent positions from the evidence, and one of those positions is that of the [ALJ], the Court must affirm the decision.” Jacob R. v. Saul, No. 19-CV- 2298 (HB),2020 WL 5642489
, at *3 (D. Minn. Sept. 22, 2020) (citing Robinson v. Sullivan,956 F.2d 836, 838
(8th Cir. 1992)).
IV. DISCUSSION
Plaintiff argues that the ALJ’s RFC improperly discounted his urinary urgency and
frequency by relying on the fact that Plaintiff was not taking his prescribed medication
Flomax, and by mischaracterizing the record by finding that his urinary urgency and
frequency predates the onset date of his disability during which he was able to engage in
full-time work. (Dkt. 17 at 8.) Plaintiff contends that the ALJ’s adverse inference was in
error because she did not consider possible reasons he did not comply with treatment by
taking Flomax or seek treatment consistent with Social Security Rule 16-3p, and instead
relied on one medical note in January 2022. (Id. at 8-9.) Plaintiff points to his reports to
the Social Security Administration that Flomax made him sleepy and therefore, the ALJ’s
discounting Plaintiff’s urinary problems because of one treatment note stating he was not
using Flomax is not supported by substantial evidence. (Id at 10.) In addition, Plaintiff
takes issue with the ALJ’s assertion that his urination condition predated his alleged onset
date and that he worked with this condition, on the basis that there is nothing in the
record about Plaintiff’s urinary frequency while working, and the fact that his urination
problems worsened after his prostate cancer and treatment. (Id. at 10-11.)
The Commissioner counters that the ALJ reasonably found that the RFC
limitations for time off-task or additional breaks due to alleged urinary urgency were not
warranted, as Plaintiff failed to meet his burden to establish such a limitation, noting that
there was only one medical record where Plaintiff specifically reported urinating every
60-90 minutes and his own testimony that he needed to go to the bathroom anywhere
from an hour and a half to two hours, at the most. (Dkt. 19 at 7-8, 10.) The
Commissioner also argues that the ALJ was not “playing doctor” with respect to the
failure of Plaintiff to take his Flomax, as the last medical appointment in the record noted
he was not taking the medication and there was nothing in the record to corroborate any
claimed side effect. (Id at 8-9.) The Commissioner also argues that while the VE
testified that there would be no jobs available for an individual who had to take a break
every hour and a half throughout an eight-hour workday, the VE did not address
bathroom breaks, which the Commissioner contends “would likely be of shorter duration
than a ‘break’ as typically defined. (Id. at 10.) The Commissioner also contends that
there is no support for Plaintiff’s claimed need to use the bathroom every 60 to 90
minutes outside of one medical record. (Id. at 11.)
“A disability claimant has the burden to establish [his] RFC.” Eichelberger v.
Barnhart, 390 F.3d 584, 591(8th Cir. 2004). Courts have found reversible error where an ALJ “fails to account for any bathroom breaks [a claimant] would need” during the workday as part of an RFC. See, e.g., Jacob D. v. Kijakazi, No. 20-CV-0554,2021 WL 3674610
, at *3 (N.D. Ill. Aug. 19, 2021) (collecting cases). The Eighth Circuit has held that “a ‘claimant’s residual functional capacity is a medical question.’” Eichelberger,390 F.3d at 591
. (quoting Lauer v. Apfel,245 F.3d 700, 704
(8th Cir. 2001)). “‘[S]ome medical evidence’ must support the determination of the claimant’s RFC, and the ALJ should obtain medical evidence that addresses the claimant’s ‘ability to function in the workplace.’”Id.
(quoting Dykes v. Apfel,223 F.3d 865, 867
(8th Cir. 2000) (per curiam)). However, “there is no requirement that an RFC finding be supported by a specific medical opinion.” Hensley v. Colvin,829 F.3d 926, 932
(8th Cir. 2016) (citing Myers v. Colvin,721 F.3d 521, 526-27
(8th Cir. 2013); Perks v. Astrue,687 F.3d 1086, 1092-93
(8th Cir. 2012)). Rather, the RFC should be “based on all of the relevant evidence, including the medical records, observations of treating physicians and others, and an individual’s own description of [her] limitations.”Id.
(quoting Myers,721 F.3d at 527
). Indeed, “‘[e]ven though the RFC assessment draws from medical sources for support, it is ultimately an administrative determination reserved to the Commissioner.’” Perks,687 F.3d at 1092
(quoting Cox, 495 F.3d at 619-20) (citations omitted). That said, an ALJ may not simply draw his own inferences about a claimant’s functional ability from medical reports. See Koch v. Kijakazi,4 F.4th 656, 667
(8th Cir. 2021) (citation
omitted).
As stated previously, the ALJ set forth the following RFC for Plaintiff:
[T]o perform medium work as defined in 20 CFR 404.1567(c) except: lifting
and carrying 50 pounds occasionally and 25 pounds frequently; sitting for 6
hours and standing and/or walking for 6 hours out of an 8-hour workday;
occasional climbing of ladders, ropes, or scaffolds; frequent climbing of
ramps or stairs; frequent balancing, stooping, kneeling, crouching, and
crawling; no exposure to concentrated levels of wetness or vibration; no
exposure to workplace hazards, such as unprotected heights and dangerous
machinery.
(R. 16.)
With respect to Plaintiff’s claims of urinary urgency the ALJ found as follows:
The claimant testified to successful treatment for prostate cancer but has
ongoing urinary urgency about every one to one and a half hours, which he
believes is work preclusive. (See Id.).
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’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 for the reasons explained in this decision.
* * *
As of early 2022, his PSA had improved to 0.5 from 5.0 in November 2019.
While he did has [sic] complained of urinary urgency, which predates the
AOD, he has not complied with prescribed medication (Flomax) for this.
* * *
While the claimant did have ongoing complaints of urinary urgency and
spikes in his PSA level in early 2021, the latter showed significant
improvement by August 2021 when [he] had a PSA of 1.9 and declined
urological evaluation prior to being prescribed Flomax for urinary urgency.
(See Exhibit 1F/4-5, 8, 13, 14- 15). In October 2021, the claimant was
amenable to starting Flomax for urinary urgency. (See Exhibit 2F/11). As of
January 2022, the claimant continued to complain of urinary urgency and
frequent urination but was not taking his prescribed Flomax.
* * *
Notably, the undersigned has not made any allowance for additional breaks
and/or time off task in the residual functional capacity for the claimant’s
urinary urgency. Establishing off task limitations are the claimant's burden
and that burden has not been met here. As discussed above, despite
complaints of urinary urgency, the claimant was noted as not taking
prescribed Flomax in April 2022. (See Exhibit 4F/3). In addition, this
impairment predates his AOD and he was able to engage in fulltime work
with these symptoms without complaints.
(R. 17-19.)
As set forth above, an ALJ must determine a Plaintiff’s RFC based on all of the
relevant evidence, including his own description of his limitations. See Myers, 721 F.3d
at 527(citation omitted). An ALJ should consider several factors, in addition to the objective medical evidence, in assessing a claimant’s subjective symptoms, including daily activities; work history; intensity, duration, and frequency of symptoms; any side effects and efficacy of medications; triggering and aggravating factors; and functional restrictions. See Polaski v. Heckler,739 F.2d 1320, 1322
(8th Cir. 1984); Social Security Ruling (“SSR”) 16-3p,2016 WL 1119029
, at *5-7 (S.S.A. Mar. 16, 2016) (listing these factors as relevant in evaluating the intensity, persistence, and limiting effects of a person’s symptoms). But the ALJ need not explicitly discuss each factor. See Goff v. Barnhart,421 F.3d 785, 791
(8th Cir. 2005).
The Court first considers Plaintiff’s argument that the ALJ improperly discounted
his urinary urgency and frequency and by mischaracterizing the record. (Dkt. 17 at 8.)
Contrary to the ALJ’s finding, there is no evidence in the record establishing that
Plaintiff’s urinary urgency started while he was working or prior to March 1, 2020, the
date of his claimed onset of disability. The ALJ did not cite any portion of the record to
support her assertion that this condition predated the alleged onset date. Based on the
record, Plaintiff quit his work in November 2019 due to physical symptoms. (R. 60-61,
221.) Further, the available medical record includes the following representations from
Plaintiff to medical providers that he did not suffer from urinary urgency: on November
21 and 29, 2019; on January 27, 2020, when he was notified of his cancer diagnosis; and
on March 5, 2020, when he claimed he was happy and overall satisfied with his urination.
(R. 341, 344, 347, 362, 368.) It was only after his radiation therapy that Plaintiff began
reporting issues with his urination, beginning in early June through July 23, 2020. (See,
e.g., R. 325, 327-28.) The Commissioner argues that Plaintiff admitted “that his urinary
urgency/frequency ‘in part predated his course of radiotherapy’” based on an April 14,
2021 medical record. (Dkt. 18 at 11 (citing R. 315) (cleaned up).) The April 14, 2021
medical record states: “[Plaintiff] reports ongoing urinary urgency, frequency which in
part predates his course of radiotherapy, but exacerbated after and new a terminal
dysuria, partially improved with recent antibiotic therapy.” (R. 315.) However, there is
no evidence in the record that Plaintiff experienced urinary urgency or frequency issues
while he was working through November 2019 or any time prior to March 1, 2020.
Further, there is no dispute that Plaintiff’s urinary urgency was exacerbated by the
radiotherapy, as is borne out by the medical records from February 2021 through October
21, 2021—including the April 14, 2021 record relied on by the Commissioner. (See, e.g.,
R. 311-12, 314-15, 316-18, 319, 449, 452.) In fact, doctors notified Plaintiff that the
radiotherapy for his prostate cancer could lead to urinary urgency. (R. 327.) The medical
record supports the exacerbation of Plaintiff’s urinary urgency—including the statement
to medical providers that he needed to urinate every 60 to 90 minutes, and seeking
medical relief regarding the same, on October 12, 2021. (R. 449, 452.) It was only after
Plaintiff started taking Flomax, beginning in October 2021, that Plaintiff reported no
urinary complaints. (R. 459, 448.) Indeed, the Commissioner appears to concede that the
ALJ misread the record with respect to whether Plaintiff experienced urinary urgency or
frequency concerns before the alleged onset date, noting that “the ALJ’s apparent
misreading that this symptom existed prior to his alleged onset date.” (Dkt. 19 at 10.)
In sum, the Court finds that substantial evidence in the record does not support the
ALJ’s assertion that Plaintiff suffered from urinary urgency, or the same level of urgency,
prior to ending his employment or prior to his claimed onset of disability. The Court
makes no finding as to when the urinary urgency rose to the level where additional
restrictions, if any, would have become necessary during the relevant period and remands
to the ALJ to make such a finding.
The only other support provided by the ALJ for discounting Plaintiff’s claims of
urinary urgency is his failure to continue taking Flomax, which appeared to provide him
with relief. (R. 19). A failure to follow a recommended course of treatment weighs
against a claimant’s subjective complaints. See Fatuma A. v. Saul, No. 19-CV-3160
(WMW/LIB), 2021 WL 616522, at *7 (D. Minn. Jan. 26, 2021), R. & R. adopted,2021 WL 615414
(D. Minn. Feb. 17, 2021) (citing Wagner v. Astrue,499 F.3d 842, 851
(8th Cir. 2007)). However, an ALJ is required to consider reasons why a claimant failed to comply with treatment and provide an explanation of how they considered those reasons in their determination. See Mashona M. v. Kijakazi, No. 21-CV-00633 (HB),2022 WL 2220918
, at *12 (D. Minn. June 21, 2022). Indeed, Social Security Ruling (“SSR”)16-3p
provides:
We will not find an individual’s symptoms inconsistent with the evidence in
the record on [the basis of non-compliance with treatment] without
considering possible reasons he or she may not comply with treatment or
seek treatment consistent with the degree of his or her complaints . . . We
will explain how we considered the individual’s reasons.
SSR 16-3p, 2017 WL 5180304, at *9-10 (S.S.A. Oct. 25, 2017).
Here, Plaintiff twice represented to the SSA that Flomax caused him sleepiness.
(R. 265, 271). The ALJ did not follow SSR 16-3p because she never addressed
Plaintiff’s assertion of sleepiness with Flomax. See 20 C.F.R. § 402.35(b)(1) (rulings are
binding on ALJs). On remand, the ALJ must consider Plaintiff’s noncompliance with
Flomax treatment in a manner consistent with SSR 16-3p in light of Plaintiff’s claims that
the medication made him sleepy.
The Commissioner argues that the ALJ did not base the disability finding solely
on Plaintiff’s failure to take Flomax, nor on the ALJ’s apparent misreading that this
symptom existed prior to his alleged onset date. (Dkt. 19 at 8-10.) While the Court
agrees that the ALJ considered the evidence with respect to Plaintiff’s urinary problems
(R. 17-19), the ALJ acknowledged the urinary frequency problems but decided not to
provide any allowance for additional breaks and/or time off task in the RFC because the
ALJ believed the symptoms existed prior to his alleged onset date and because Plaintiff
was not taking his prescribed Flomax (R. 19).
In any event, the evidence available, as set forth above, supports that Plaintiff was
suffering from chronic urinary frequency problems from February 2021 through October
2021, when he began taking Flomax, and then again when he stopped taking the
medication. As noted by the Commissioner, the ALJ claimed significant improvement by
Plaintiff in April 2021. However, the medical record shows that while Plaintiff noted
some improvement he still suffered from “significant urgency.” (R. 311.) There is
nothing in this record suggesting that no limitations were necessary during the period,
especially given the record of chronic urinary problems and that the next medical note
regarding this issue, dated October 12, 2021, stated that Plaintiff was urinating every 60
to 90 minutes and “does continue to suffer from increased urinary frequency and
urgency.” (R. 449.)
The Commissioner also argues that while the VE testified that there would be no
jobs available for an individual who had to “take a break every hour and a half
throughout the eight-hour day” (R. 66-67), Plaintiff’s attorney did not ask the VE about
bathroom breaks, which would likely to be of shorter duration than a “break” as typically
defined under SSR 96-9p, and that Plaintiff testified that he could go without urinating up
to every two hours in an eight-hour work day (Dkt. 19 at 8, 10). The Court rejects this
argument. First, the ALJ did not assert this as a basis for denying benefits and the Court
may not accept or manufacture post hoc rationales for the ALJ’s decisions. See Ronald
V. v. Kijakazi, No. 22-CV-2140 (TNL), 2023 WL 6318276, at *6 (D. Minn. Sept. 28,
2023) (“[T]he ALJ’s decision cannot be sustained on the basis of the post-hoc
rationalizations of appellate counsel.”) (collecting cases). Indeed, the ALJ only stated in
her opinion that she did “not ma[k]e any allowance for additional breaks”; she did not set
forth what the standard allowances were for any kind of breaks and how they
accommodated any limitations. In addition, this argument misstates Plaintiff’s testimony,
which was clarified by his counsel that he could only go up to an hour and a half before
needing to use a bathroom. Notably, the ALJ acknowledged Plaintiff’s testimony that
“ongoing urinary urgency about every one to one and a half hours” (R. 17) and did not
rely on Plaintiff’s earlier testimony that “it’s an hour – anywhere from an hour and a half
to two hours at the most” (R. 62).
Moreover, SSR 96-9p does not govern the medium position assigned to Plaintiff
by the ALJ in the RFC. It pertains to breaks for sedentary work and provides that
customary breaks during a workday include: “a morning break, a lunch period, and an
afternoon break at approximately 2-hour intervals.” See SSR 96-9p, 1996 WL 374185, at *6 (July 2, 1996). Even if SSR 96-9p applies to the medium positions identified for Plaintiff at step five, the ruling only provides for three breaks during an 8-hour working day at 2-hour intervals. Assuming that Plaintiff could tolerate a bathroom break every two hours, SSR 96-9p would not account for the last three hours of the workday. It is important to note that a VE may testify that an employer would tolerate a typical bathroom break every two hours, but the VE was never asked this as part of a hypothetical. See, e.g., Nicole S. v. Kijakazi, No. 2:22-cv-06655-HDV (ADS),2023 WL 9107289
, at *1 (C.D. Cal. Dec. 28, 2023) (adopting VE testimony that employers would
tolerate a worker being off task, including for bathroom breaks, for “six minutes an hour”
or twelve minutes in a “two-hour block”).
In sum, the Court remands this case for further proceedings. Specifically, on
remand, the ALJ may inquire of a VE whether an employer would tolerate a bathroom
break every two hours to the extent that it is the position of the ALJ that Plaintiff can
tolerate urinating every two hours (or any other period(s) supported by the record) as part
of the RFC. See Binder v. Colvin, No. 5:12-CV-271-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. Because the ALJ did not do so here, the undersigned cannot determine whether the ALJ’s findings— particularly his step five finding—were supported by substantial evidence.”) (cleaned up), R. & R. adopted,2013 WL 1694678
(E.D.N.C. Apr. 18, 2013).
V. ORDER
Based on the above, and on the files, records, and proceedings herein, IT IS
ORDERED that:
1. Plaintiff’s Motion for Summary Judgment (Dkt. 17) is GRANTED in part;
2. Defendant Commissioner of Social Security Administration, Martin J.
O’Malley’s opposition (Dkt. 19) is DENIED; and
3. This case is REMANDED to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g) for further administrative proceedings consistent with the Court’s
Order.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: July 2, 2024 s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge Reference
- Status
- Unknown