[Faith L.] v. Comm’r of Soc. Sec., No. 2:21-CV-12942, 2022 WL 19518452 (W.D. Mich. Nov. 8, 2022)

• Plaintiff’s Motion for Summary Judgment
• Plaintiff’s Reply Brief
• Plaintiff’s Objections to Magistrate Judge’s Report and Recommendation 

Topics addressed: 

• Specific impairment - microscopic colitis  
• RFC - breaks due to incontinence
• RFC - off task findings
• RFC - relationship with PRTF findings
• RFC - need to consider nonsevere impairments 
• Subjective symptoms - ALJ must consider reasons for not seeking treatment 
• Subjective symptoms -medication side effects
• Subjective symptoms - post-DLI evidence
• Subjective symptoms - work activity 

Rulings addressed:

• Social Security Ruling 96-8p

• Social Security Ruling 82-62

Issues briefed:

1)  The ALJ failed to properly account for Plaintiff’s fecal incontinence, despite the ample evidence of this condition and the vocational witness testimony that even one unscheduled break per day would preclude competitive work.

2)  The ALJ committed reversible error in finding Plaintiff could perform her past relevant skilled and semi-skilled work despite the credited mild mental impairments.

3) The ALJ did not properly discount Plaintiff’s subjective complaints and testimony.

Court decision:
The district court sustained Plaintiff’s objection to the R&R’s conclusion that the ALJ did not reversibly err in evaluating the functional limitations caused by her fecal incontinence as the ALJ had found that Plaintiff’s microscopic colitis was a “severe” impairment, but failed to include any corresponding limitations in the RFC. 2023 WL 2733382, at *3. The court agreed with Plaintiff that the R&R impermissibly concluded that the ALJ’s error was harmless by rewriting the ALJ’s severity determination, which was improper. Id. “[A]n agency’s actions must be upheld, if at all, on the basis articulated by the agency itself.” Id. (quoting Berryhill v. Shalala, 4 F.3d 993 (Table), 1993 WL 361792, at *6 (6th Cir. 1993) (internal quotations omitted)). The court found it could not be confident that the ALJ’s severity determination was an error or that, even if it was, proper consideration of Plaintiff’s limitations would still yield the same RFC. Id.

The court also found substantial evidence did not support the ALJ’s conclusion that Plaintiff kept her incontinence in check with medication by discussing only a single medical record and ignoring much other evidence to the contrary. Id. at *4. Given that under SSR 96-8p RFC is an assessment of ability to do sustained work-related activities on a regular and continuing basis, the ALJ did not adequately explain in a manner permitting meaningful review why she believed normal bathroom breaks would suffice, particularly given the vocational expert’s testimony that Plaintiff would be unemployable if she was off task more than 20% a day or absent more than once a month. Id.

The ALJ further failed to properly assess Plaintiff’s compliance with treatment, as the proper analysis should focus on whether Plaintiff had acceptable reasons for discontinuing her medication and whether there was evidence that Plaintiff’s medication could restore her ability to work in the first place. Id. The court rejected the Commissioner’s argument that evidence about adverse medication effects was appropriately dismissed because it post-dated her insured period, finding that such evidence ought to be considered insofar as it bears on the Plaintiff’s condition prior the expiration of her insured status, and further finding the record contained evidence that Plaintiff complained about adverse side effects during her insured period. Id. at *4-*5. The court instructed that on remand, the ALJ should discuss how she considered this evidence in explaining whether normal breaks would have sufficed to accommodate Plaintiff’s bathroom needs. Id. at *5.

The court overruled Plaintiff’s objection to the R&R’s conclusion that the ALJ adequately explained her decision not to incorporate any mild mental limitations into the RFC, finding that the ALJ did so at step two, when she discussed why she found that Plaintiff’s depression and anxiety were “nonsevere.” Id. at *5-*6. While a determination that an impairment is “nonsevere” does not automatically mean it carries no functional limitations when considered in combination with other impairments, here the ALJ provided a sufficient explanation for her findings. Id. at *5. The court noted the ALJ was not required to expressly revisit Plaintiff’s nonsevere impairments in formulating her RFC, so long as she made clear that she considered all of Plaintiff’s impairments and found the ALJ honored her responsibility to “consider all of [Plaintiff]’s limitations, including impairments that are non-severe” under SSR 96-8p. Id. The court noted Plaintiff did not clearly articulate what additional limitations the AJ should have imposed, and how the record would support them. Id.