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Harriet S. v. Berryhill

United States District Court, D. Utah

September 18, 2018

HARRIET S., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Ted Stewart United States District Judge.

         Plaintiff filed her Complaint in this matter on March 13, 2017. This case was subsequently referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge issued a Report and Recommendation on August 30, 2018, recommending the decision of the Commissioner be affirmed. Plaintiff has objected to the Report and Recommendation and Defendant has responded. This matter is before the Court for consideration of the Report and Recommendation. For the reasons discussed below, the Court sustains in part and overrules in part Plaintiff's Objection, adopts the Report and Recommendation in part, and remands this matter for further proceedings.


         Pursuant to 28 U.S.C. § 636(b), a party has 14 days after being served with a copy of the Report and Recommendation to file an objection. Plaintiff has filed an objection to the Magistrate Judge's Report and Recommendation. As Plaintiff has objected, the Court reviews the Report and Recommendation de novo.[1]

In order to conduct a de novo review a court “should make an independent determination of the issues . . .; [it] ‘is not to give any special weight to the [prior] determination' . . . .” “The district judge is free to follow [a magistrate judge's recommendation] or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew.”[2]


         On August 20, 2013, Plaintiff filed an application for disability insurance benefits, alleging disability beginning on November 1, 2012. The claim was denied initially and upon reconsideration. Plaintiff then requested a hearing before an administrative law judge (“ALJ”), which was held on January 6, 2016.

         The ALJ issued a decision on March 30, 2016, finding that Plaintiff was not disabled. The ALJ followed the five-step sequential evaluation process in deciding Plaintiff's claim. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since November 1, 2012, the alleged onset date. At step two, the ALJ found that Plaintiff had a number of medically determinable impairments, but none of them were severe. As a result, the ALJ found that Plaintiff was not disabled.

         The Appeals Council denied Plaintiff's request for review on February 3, 2017, making the ALJ's decision the Commissioner's final decision for purposes of judicial review.[3]


         Plaintiff first asserts that the ALJ erred in his step two analysis. Plaintiff argues that the ALJ erred in finding that her diarrhea, neuropathy, and cognitive impairments were not severe.

         Plaintiff next argues that the ALJ erred in his treatment of medical opinion evidence. The Court will discuss each argument in turn.

         A. STEP TWO

         At step two of the sequential evaluation, the issue is whether the claimant suffers from at least one “severe” medically determinable impairment. Plaintiff argues that the ALJ erred in failing to find Plaintiff's diarrhea, neuropathy, and cognitive impairments to be severe impairments.[4]

         An impairment is “severe” if it “significantly limits [a claimant's] physical or mental ability to do basic work activities.”[5] A claimant must make only a de minimis showing for her claim to advance beyond step two of the analysis.[6] However, the “mere presence of a condition is not sufficient.”[7] Thus, “if the medical severity of a claimant's impairments is so slight that the impairments could not interfere with or have a serious impact on the claimant's ability to do basic work activities . . . the impairments do not prevent the claimant from engaging in substantial gainful activity.”[8] “If the claimant is unable to show that [her] impairments would have more than a minimal effect on [her] ability to do basic work activities, [s]he is not eligible for disability benefits.”[9]

         1. Diarrhea and Incontinence

         Plaintiff complained to her doctor of diarrhea and incontinence beginning on July 25, 2013.[10] Plaintiff stated that she had loose stools up to three times per day. She stated that she had to go rapidly and had some incontinence.

         On September 16, 2013, Plaintiff again complained of ongoing diarrhea, dating back to the previous November.[11] Plaintiff stated that she went to the bathroom one to six times per day, always with loose stool. She also stated that about four days per week she would have loose stool more than three times per day. She also had some cramping and pain. Plaintiff informed her doctor that her diarrhea made it difficult for her to obtain employment because she had to run to the bathroom often and had to get there quickly. Plaintiff's primary care physician, Dr. Johnson, recommended a colonoscopy and prescribed Imodium. A colonoscopy was later preformed with benign results.

         Plaintiff again complained of diarrhea on January 22, 2014.[12] Plaintiff explained that it comes fast and emergently and that she had accidents, including accidents at work. She also stated that she suffered from cramping and pain. Dr. Johnson's notes stated that Plaintiff should consider cholestyramine, but it does not appear that it was ever prescribed.

         On June 26, 2014, Plaintiff complained of both fecal and urinary incontinence.[13] Plaintiff stated that she had accidents involving both, though she had rare issues during the day so long as she stayed close to a bathroom. In his treatment notes, Dr. Johnson described this as a “big issue.”[14] Dr. Johnson noted that Plaintiff's incontinence was a “daily issue” affecting Plaintiff's “ability to work and leave the home and live life.”[15] Dr. Johnson noted that Plaintiff was unable to afford surgery and was required to stay close to a bathroom.[16]

         At the hearing before the ALJ, Plaintiff testified that she had ongoing problems with diarrhea and incontinence, needing to go to the bathroom up to eight times a day. Plaintiff further stated that she wears adult protective undergarments due to her incontinence.

         As set forth above, the ALJ found that Plaintiff's incontinence was a medically determinable impairment, but was not severe. In his decision, the ALJ stated that Plaintiff complained of diarrhea and incontinence on three occasions: July 25, 2013, September 16, 2013, and January 22, 2014. The ALJ stated that Plaintiff “did not complain about having diarrhea or incontinence to her treating providers after this.”[17] The ALJ also noted that Plaintiff's colonoscopy was benign and that she was not prescribed any anti-diarrheal medication after September 16, 2013.[18] Nowhere in his analysis does the ALJ reference or discuss Dr. Johnson's treatment notes from June 26, 2014.

         The ALJ is not required to discuss in detail each piece of evidence, but the record must demonstrate that the ALJ considered all of the evidence.[19] “[I]n addition to discussing the evidence supporting his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.”[20] The ALJ “may not ignore evidence that does not support his decision, especially when that evidence is ‘significantly probative.'”[21] This is important at step two of the sequential analysis, as that step “requires a careful evaluation of the medical findings which describe the impairment(s) and an informed judgment about its (their) limiting effects on the individual's physical and mental ability(ies) to perform basic work activities.”[22]

         Here, the ALJ incorrectly noted that Plaintiff had only complained of diarrhea three times and had not complained about having diarrhea or incontinence after January 2014.[23] As is detailed above, Plaintiff's complaints about diarrhea and incontinence continued after January 2014, continuing up to and including the administrative hearing. Of particular relevance here are the treatment notes from Dr. Johnson from June 26, 2014. In those notes, Dr. Johnson detailed how Plaintiff's incontinence was a daily issue that affected Plaintiff's ability to work. This is significantly probative evidence that the ALJ appears to have overlooked. This evidence also undermines one of the primary justifications for the ALJ's decision that Plaintiff's incontinence was non-severe. The ALJ makes much of the fact that Plaintiff only complained of diarrhea and incontinence on three occasions and that those complaints stopped after January 2014. The treatment notes from June 26, 2014, demonstrate that this was incorrect. Plaintiff's incontinence continued after January 2014 and presented significant problems in her life, including interfering with her ability to work.

         The ALJ also found Plaintiff's incontinence to be non-severe because Plaintiff was not prescribed other treatment after Dr. Johnson prescribed Imodium. However, in his June 26 treatment notes, Dr. Johnson noted Plaintiff could not afford surgery, which may provide an explanation as to why no further treatment was prescribed. But, as stated, the ALJ did not address this.

         The ALJ also relied on the state agency physicians who opined that Plaintiff's physical impairments were non-severe. However, those opinions were rendered on November 11, 2013, and February 12, 2014, respectively.[24] As a result, the state agency physicians did not have the benefit of the medical records created thereafter, including the June 26, 2014 treatment notes that detailed the severity of Plaintiff's incontinence and its impact on Plaintiff's ability to work.

         Based upon the above, remand is required to allow the Commissioner to weigh all of the medical evidence relevant to determining whether Plaintiff's incontinence is a severe impairment, including the June 26, 2014 treatment notes.

         2. Neuropathy

         Plaintiff argues that the ALJ erred in finding her neuropathy non-severe. The ALJ stated that the medical evidence did not establish that Plaintiff had peripheral neuropathy in her hands or feet and that Plaintiff had not complained of numbness, tingling, pain or other neuropathic symptoms.[25] The ALJ was correct that there was no evidence of neuropathy in Plaintiff's hands. However, there are a number of references in the medical record demonstrating that Plaintiff complained of neuropathic symptoms in her feet, [26] which were supported by exam.[27] The ALJ does not appear to have considered this evidence, requiring remand for the same reasons stated above.

         The Commissioner argues that remand is not required because the evidence does not show that Plaintiff experienced any significant limitations as a result of neuropathy. The Commissioner points to a number of normal foot examinations during the relevant period and to the fact that Plaintiff often did not report numbness or tingling in her feet. The Commissioner also notes that Plaintiff was able to exercise throughout the relevant period and that her treating physician ...

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