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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Courtney Ann Brown,
Plaintiff,
v.
Frank Bisignano, Commissioner of
Social Security
Defendant.
Case No. 24-cv-4172-JRT-ECW
REPORT AND
RECOMMENDATION
Plaintiff seeks judicial review of the final administrative decision of the
Commissioner of Social Security (“Commissioner”) under 42 U.S.C. § 405(g).
The District Court referred this matter to me for a Report and
Recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).
I’ve considered the matter based on the parties’ briefs. (See Pl. Br., Dkt.
No. 10; Def. Br., Dkt. No. 12.) See Supplemental Rules for Social Security
Actions under 42 U.S.C. § 405(g), R. 5. For the reasons discussed below, I
recommend that Plaintiff’s request for relief be GRANTED.
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I. 	Background.
A. Factual history.
Plaintiff Courtney B. is a forty-four-year-old wife and mother of three.
(Social Security Administrative Record, Dkt. No. 8 (“Admin. R.”) at 43.1) In
the early 2000s, she trained in the health field. (Id. at 342–43, 1994–1995.)
While working as a certified nursing assistant at a hospital in 2004, she was
assaulted by a disoriented elderly patient and suffered neck and back
injuries. (Id. at 343, 345, 1991–95.)
Between 2004 and 2019, Plaintiff maintained positions in health and
social service fields. (Admin. R. at 50–51, 345, 1997.) She began working as a
psychotherapist at Nystrom Associates in 2011. (Id. at 48–50, 345, 1997.)
But she continued to experience neck and back pain from the 2004
assault and was diagnosed with degenerative disc disease and spinal
stenosis. (Admin. R. at 342, 346, 2132–35.) Plaintiff’s treating physician
reports that she has been “quite diligent in addressing these pain issues.” (Id.
at 1205.) She underwent a lumbar fusion spinal surgery in 2016 and a
cervical-spine surgery in February 2019 (Id. at 344, 516, 1072) as well as
1 References to Administrative Record page numbers refer to the Bates
numbers at the bottom of each page.
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various other treatments (Id. at 1070.) Despite these treatments, her
symptoms persisted. (Id. at 342.)
On December 11, 2019, Plaintiff underwent another lumbar-spine
surgery at her treating surgeon’s recommendation. (Admin. R. at 344.)
Unfortunately, the surgery “was complicated by a nerve root dural tear.” (Id.)
Plaintiff awoke from her surgery with severe pain. (Id.) She has experienced
a domino effect of “disabling symptoms” since that time, including pain,
incontinence, pelvic floor dysfunction, recurrent kidney stones, numbness,
headaches, nausea, anxiety, depression, and somatic symptoms. (Id. at 1205;
see also id. at 65–66, 68, 345, 707–08, 1099–1101,1118–20, 2251–52, 2322.)
Plaintiff has continued efforts to treat these symptoms through
additional surgeries, physical therapy, nerve ablations, medications, and
other recommended treatments. (Admin. R. at 59–60, 67–69, 70–71, 302, 391,
913, 1199, 1210, 2137, 2251.) None has yielded sustained relief of her
symptoms. (Id. at 59–60, 913, 1199.) Indeed, subsequent treatments caused
additional problems, including diverticulitis, diarrhea, and worsening pain.
(Id. at 70–71, 1127, 1211, 1247, 1256, 1502, 2155, 2188, 2241, 2281.)
Plaintiff has not worked since the day before her 2019 surgery. (Admin.
R. at 49.) She received disability payments through Nystrom in 2020 but
resigned in January 2021 after her physician said she was unable to return to
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work. (Id.) She continues to seek treatments to “get better.” (Id. at 72.) Her
goal is to have her ability to work restored. (Id.)
B. Procedural history.
On August 14, 2022, Plaintiff applied for supplemental security income
through the Social Security Administration. (Admin. R. at 94–120.)
The Commissioner of the Social Security Administration has
established a sequential, five-step evaluation process to determine whether
an individual is “disabled” within the meaning of the Social Security Act. See
20 C.F.R. § 404.1520(a)(4). At step one, the claimant must establish that she
is not engaged in any “substantial gainful activity.” Id. § 404.1520(a)(4)(i). If
she does, then at step two she must show that she has a severe medically
determinable impairment or combination of impairments. Id.
§ 404.1520(a)(4)(ii). At step three, the claimant must show that her
impairment meets or equals one listed in the regulations. Id.
§ 404.1520(a)(4)(iii) (referencing 20 C.F.R. pt. 404, subpt. P, app. 1).) As a
precursor to step four, the claimant must establish her residual functional
capacity. Then, at step four, the claimant must show that she cannot perform
any past relevant work given her residual functional capacity. 20 C.F.R.
§ 404.1520(a)(4)(iv); see also Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000). At step five, the burden shifts to the Commissioner to establish that
the claimant can perform other work existing in a significant number of jobs
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in the national economy. 20 C.F.R. § 404.1520(a)(4)(v); see also Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant can perform such work,
the Commissioner will find that the claimant is not disabled. 20 C.F.R.
§ 404.1520(a)(4)(v).
Here, Plaintiff’s application for benefits was denied initially (Admin. R.
at 107) and on reconsideration (id. at 120.)
On December 28, 2023, an Administrative Law Judge (“ALJ”) held a
video hearing on Plaintiff’s application. (Admin. R. at 37–86.) Plaintiff
testified that her symptoms limited her ability to function as an employee,
spouse, and parent. (Id. at 45–72.) The ALJ also took testimony of Richard
Oestreich, a vocational expert, who opined that Plaintiff could do some
sedentary work with limitations. (Id. at 73–83.)
After the hearing, the ALJ issued an unfavorable written
determination. (Admin. R. at 7–36.) Upon finding that Plaintiff satisfied the
first step (no substantial gainful activity) of the analysis, the ALJ found at
step two that Plaintiff had the following severe impairments:
• 	Lumbar degenerative disc disease;
• 	Cervical degenerative disc disease;
• 	Right shoulder facet arthropathy and acromioclavicular arthritis;
• 	Right lateral epicondylitis;
• 	Right hip tendinosis;
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• 	Pelvic floor dysfunction; and
• 	Irritable bowel syndrome.
(Admin. R. at 13.) The ALJ also found that Plaintiff had the following mental
impairments:
• 	Anxiety;
• 	Adjustment disorder; and
• 	Somatic symptom disorder.
(Id.) The ALJ found that Plaintiff’s mental impairments caused only “mild”
limitations and thus assessed them as non-severe. (Id.)
In the last steps of the analysis, the ALJ determined that Plaintiff did
not have an impairment equaling the severity of one of the listed
impairments. (Admin. R. at 16.) He found that Plaintiff had the residual
functional capacity to perform sedentary work with certain limitations,
including off-task time of less than ten percent due to bathroom breaks. (Id.
at 18.) And he found that Plaintiff’s residual functional capacity permitted
her return to past relevant work as a psychotherapist or to take new work as
an inspector, assembler, or sorter. (Id. at 30, 32.)
The Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision (Admin. R. at 1.) Having administratively exhausted her claims,
Plaintiff commenced the action now before this Court. (See Compl. (Dkt. No.
1).)
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II. 	Standard of review.
Judicial review of the ALJ’s decision is limited to determining whether
“substantial evidence on the record as a whole” supported the decision,
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000), or whether the ALJ
legally erred, Nash v. Comm’r, Soc. Sec. Admin., 907 F.3d 1086, 1089 (8th
Cir. 2018); see also 42 U.S.C. § 405(g). “Substantial evidence . . . is more than
a mere scintilla.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (internal
quotation marks and citation omitted). It is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id.
(internal quotation marks and citation omitted).
The reviewing court must look to the entire administrative record to
determine whether there is substantial evidence to support the ALJ’s
decision, examining both evidence that detracts from the ALJ’s decision and
evidence that supports it. See Krogmeier v. Barnhart, 294 F.3d 1019, 1022
(8th Cir. 2002). The court must uphold any finding for which substantial
evidence exists, even if substantial evidence also supports a contrary
outcome. Id.
III. 	Discussion.
Plaintiff challenges the ALJ’s step-two finding that her mental-health
impairments were not severe. (Pl. Br. at 16–19.) Plaintiff also challenges the
ALJ’s assessment of her residential functional capacity at step four. (Id. at
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20–26.) Defendant asks this Court to affirm the ALJ’s decision on the
grounds that the ALJ applied proper legal standards and that substantial
evidence supports his findings. (Def. Br. at 5–21.)
A. 	Step two analysis of mental-health impairments.
The ALJ found that Plaintiff’s anxiety disorder, somatic symptom
disorder, and adjustment disorder were non-severe. (Admin. R. at 13.)
Plaintiff argues that substantial evidence does not support this finding. (Pl.
Br. at 17.)
A claimant’s mental-health impairments are severe if they create an
“extreme” limitation in one or a “marked” limitation in two of the following
relevant functional areas: (1) understand, remember, or apply information;
(2) interact with others; (3) concentrate, persist, or maintain pace; and
(4) adapt or manage oneself. See 20 C.F.R. pt. 404, subpt. P, app. 1,
§§ 12.00(A)(2)(b) & (E). A “marked” limitation means that the claimant’s
ability to function independently, appropriately, and effectively in a
particular area on a sustained basis is seriously limited. Id. § 12.00(F)(2)(d).
A “moderate” limitation means that the claimant’s ability to function
independently, appropriately, and effectively in a particular area on a
sustained basis is fair. Id. § 12.00(F)(2)(c). A “mild” limitation means that the
claimant’s ability to function independently, appropriately, and effectively in
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a particular area on a sustained basis is only slightly limited. Id.
§ 12.00(F)(2)(b).
Here, Plaintiff challenges the ALJ’s finding of a “mild” limitation in
functional areas (1), (3), and (4). (Pl. Br. at 17.) (Plaintiff does not contest the
ALJ’s finding that she has only a mild limitation in the second functional
area, interacting with others.) Broadly, Plaintiff asserts two arguments to
mount this challenge.
First, Plaintiff argues that the ALJ erred in his assessment of the
“understanding, remembering, or applying information” functional area
because he relied on evidence from a period “long before” her alleged
disability onset date. (Pl. Br. at 17.) I’m not persuaded.
While the ALJ mentioned Plaintiff’s pre-onset educational and
employment history, he also considered recent medical records and opinion
records. (Admin. R. at 14.) For example, the ALJ considered Plaintiff’s 2020
statements denying memory loss (id. (citing Admin. R. at 1412)) and 2022
statements that she can follow spoken instructions well and written
instructions upon review (id. (citing Admin. R. at 295).) He considered April
2021, November 2021, April 2023, and May 2023 medical records remarking
that Plaintiff’s mentation, speech, and affect were intact and normal. (Id.
(citing Admin. R. at 360, 1273, 2247, 2260).) He also considered a December
2020 mental-health assessment by Dr. Richard Van Noord, which found that
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Plaintiff was oriented, not confused, and performed well on spelling, math,
and memory test questions (id. (citing Admin. R. at 2062)), with
unremarkable speech and word-finding skills (id. (citing Admin. R. at 2057).)
I find that the record contains substantial evidence supporting the
ALJ’s finding of a mild limitation in Plaintiff’s ability to understand,
remember, and apply information. While the ALJ remarked on Plaintiff’s pre-
onset educational and work history, his analysis focused on post-onset
medical records, opinions, and subjective statements by Plaintiff. That
evidence describes only slight limitations in this functional area. Thus, a
reasonable mind would find that there is record evidence supporting the
ALJ’s conclusion about Plaintiff’s limitations in understanding,
remembering, and applying information.
Second, Plaintiff argues that there was not substantial evidence
supporting the ALJ’s finding of mild limitations in the functional areas of
concentrating, persisting, or maintaining pace and adapting and managing
oneself. (Pl. Br. at 17–19.) Plaintiff contends that the ALJ improperly
discounted pertinent record evidence showing marked limitations in these
areas. (Pl. Br. at 26–27.)
An ALJ “is free to discount a physician’s report if the record warrants
this.” McCadney v. Astrue, 519 F.3d 764, 767 (8th Cir. 2008). Here, Dr. Van
Noord, a consultative examiner for the State, found that:
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[Plaintiff] acknowledged persistent rumination, worry, and
perseveration stemming directly and exclusively from her ability
to cope adaptively with the chronic pain symptoms and dramatic
functional declines she has experienced throughout the past
several years due to her numerous medical conditions. Those
predominantly anxious symptoms also consist of worry,
physiological and emotional distress, and pervasively negative
thought patterns about the severity of her health problems and
whether or not they will improve or resolve (especially due to
[Plaintiff’s in]ability to achieve appreciable improvement in
physical health and functional capabilities despite extensive
surgeries and medical interventions). In my clinical opinion,
these symptoms are consistent with the diagnosis Somatic
Symptom Disorder, Persistent, With Predominant Pain
Symptoms, Severe.
(Admin. R. at 2063.)
Given this diagnosis, Dr. Van Noord concluded:
In my clinical opinion, she is able to perform moderately complex
work-type mental tasks without excessive impairment; however,
it is reasonable to conclude that she is unable to do so
consistently, and for adequate amounts of time, based on the
reasonable expectations of a prospective employer, due to her
ability to tolerate the ubiquitous presence of chronic, intense pain
symptoms.
(Admin. R. at 2063 (emphasis added).) Dr. Van Noord went on to speculate
about the impact that Plaintiff’s physical impairments may have on her
ability to work but cautioned that this “fell outside the scope of expertise of
this evaluator.” (Id. at 2064.)
Dr. Van Noord’s concluding opinion about Plaintiff’s mental functioning
explicitly addresses Plaintiff’s ability to persist and maintain pace. (Admin.
R. at 2063.) It also addresses her ability to adapt and manage herself as it
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opines on how Plaintiff’s “ability to tolerate” pain would lead to “excessive
impairment.” (Id. at 2063.) Dr. Van Noord’s conclusions suggest that Plaintiff
may have “marked” limitations in these functional areas insofar as they
suggest “serious[] limit[ations]” on her ability to function effectively on a
sustained basis. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(F)(2)(d).
The ALJ discredited Dr. Van Noord’s concluding opinion about
Plaintiff’s limitations in these functional areas on two grounds.
First, the ALJ determined that Dr. Van Noord’s conclusions concerned
only Plaintiff’s “physical impairments”—which he was not qualified to opine
on—and not her mental impairments. (Admin. R. at 27.) But this
misunderstands Dr. Van Noord’s assessment of Plaintiff’s somatic symptom
disorder, a mental impairment about which he was qualified to opine.
The Eighth Circuit has recognized somatic symptom disorder, or
“somatoform disorder,” as a psychiatric disorder that causes the sufferer to
have distorted perceptions of their physical ailments, Metz v. Shalala, 49
F.3d 374, 377 (8th Cir. 1995), and that causes the person to “actually believe[]
herself to be experiencing symptoms at a greater level of severity than
clinical evidence can support,” Nowling v. Colvin, 813 F.3d 1110, 1114 (8th
Cir. 2016). Here, while Dr. Van Noord cautioned that he could not weigh in
on Plaintiff’s physical impairments, he was well-qualified to consider her
psychological perception of the pain these impairments caused given her
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somatic symptom disorder diagnosis. (See Admin. R. at 2063.) He was also
qualified to opine on how Plaintiff’s somatic symptom disorder would impact
her abilities to concentrate, persist, and maintain pace and adapt and
manage herself. The ALJ was thus incorrect to discount Dr. Van Noord’s
opinion as concerning only Plaintiff’s physical impairments.
Second, the ALJ discounted Dr. Van Noord’s conclusions as
inconsistent with other record evidence. (Admin. R. at 28.) This was based on
a mischaracterization of Dr. Van Noord’s report that amounts to legal error.
Murray v. Kijakazi, No. 4:20-cv-484-PLC, 2022 WL 407140, at *9 (E.D. Mo.
Feb. 9, 2022) (finding that ALJ’s mischaracterization of evidence from the
record was legal error requiring reversal); Goforth v. Berryhill, No. 4:16-cv-
00606 JMB, 2017 WL 1869783, at *7 (E.D. Mo. May 9, 2017) (same).
One of Plaintiff’s long-time treatment providers opined that her
physical conditions had resulted in chronic pain and mental impairments.
(Admin. R. at 1991–93.) Records prepared by other treating providers show
that Plaintiff reported feeling desperate and debilitated due to relentless
pain. (Id. at 1205–1210.) And Plaintiff’s subjective statements show that she
often experienced a high level of pain, with her pain and anxiety levels
exacerbating one another. (Id. at 66–67, 700, 1060, 1107, 1199, 2030, 2060,
2093.) See Nowling, 813 F.3d at 1114 (stating that it’s “difficult[]” to assess
how somatoform disorders limit a person’s activities and that a claimant’s
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subjective statements about their perception of pain are therefore
particularly important). This evidence is consistent with Dr. Van Noord’s
determination that Plaintiff would have “excessive impairment” in “work-
type mental tasks . . . due to her ability to tolerate the ubiquitous presence of
chronic, intense pain symptoms.” (Admin. R. at 2063.)
I find that the ALJ’s mischaracterization of Dr. Van Noord’s opinion
was legal error. This error deprived the ALJ of substantial evidentiary
support at step two. See Murray, 2022 WL 407140, at *9; Goforth, 2017 WL
1869783, at *7.
Setting aside the ALJ’s treatment of Dr. Van Noord’s opinion, the
record does not otherwise contain substantial evidence supporting the ALJ’s
finding related to somatic symptom disorder. The ALJ does not reference
substantial medical or non-medical evidence in concluding that Plaintiff has
only mild limitation in the functional area of concentrating, persisting, or
maintaining pace. The only medical evidence cited is Dr. Van Noord’s
opinion, which the ALJ mischaracterized, as explained above. (Admin. R. at
15.) As non-medical evidence in support, the ALJ references Plaintiff’s ability
to “watch[] the news or surf[] the internet occasionally” and to “operate a
motor vehicle.” (Id.) These activities do not amount to substantial evidence
that Plaintiff experiences only mild limitation in concentrating, persisting or
maintaining pace when viewing the record as a whole.
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This Court may not determine whether Plaintiff met her burden or
whether the record supports a moderate, marked, or extreme limitation in
this area. Instead, the ALJ must consider all record evidence and undergo the
required analysis in the first instance. See Goforth, 2017 WL 1869783, at *7
(citing Pfitzner v. Apfel, 169 F.3d 566, 569 (8th Cir. 1999)).
I therefore recommend that this matter be remanded for the ALJ to
clarify the weight given to Dr. Van Noord’s medical opinion as it relates to
mental impairments. See Hudson, 870 F.2d at 1396; Goforth, 2017 WL
1869783, at *7 (remanding for ALJ to clarify weight given to medical
opinion); Powell v. Berryhill, No. 18-cv-3309-S-FJG-SSA, 2020 WL 14080767,
at *2 (W.D. Mo. Mar. 26, 2020) (remanding because, among other things, the
ALJ misunderstood the psychiatrist’s opinion which found plaintiff to be
substantially more limited than what ALJ found). I would note, for purposes
of any remand, that establishing an impairment as “severe” at step two
requires only a “de minimis” showing. Hudson v. Bowen, 870 F.2d 1392, 1395
(8th Cir. 1989). “This is not an onerous requirement for the claimant to
meet.” Kirby v. Astrue, 500 F.3d 708 (8th Cir. 2007).
B. 	Residual functional capacity.
A residual-functional-capacity assessment describes the most that a
claimant can perform on a sustained basis in a work setting given her
physical or mental limitations. See Martise v. Astrue, 641 F.3d 909, 923 (8th
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Cir. 2011) (citation omitted); 20 C.F.R. §§ 404.1545, 416.945(a)(1). The ALJ
must consider all medically-determinable impairments, including those
deemed not “severe” at step two of the analysis. See 20 C.F.R.
§§ 404.1545(a)(2). The ALJ determines a claimant’s residual functional
capacity “based on all relevant evidence, including medical records,
observations of treating physicians and others, and claimant’s own
descriptions of her limitations.” Kraus v. Saul, 988 F.3d 1019, 1024 (8th Cir.
2021) (internal quotation marks, citation, and alterations omitted). “In
evaluating a claimant’s [residual functional capacity], consideration should
be given to the quality of daily activities and the ability to sustain activities,
interests, and relate to others over a period of time[,] and the frequency,
appropriateness, and independence of the activities must also be considered.”
Leckenby v. Astrue, 487 F.3d 626, 634 (8th Cir. 2007) (internal quotations,
citations, and alterations omitted; emphasis in original).
Here, the ALJ made the following determination about Plaintiff’s
residual functional capacity:
[Plaintiff] has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) except the
claimant can occasionally climb ramps and stairs. She can never
climb ladders, ropes, or scaffolds. The claimant can occasionally
stoop, kneel, crouch, and crawl. She can occasionally reach
overhead with the dominant right upper extremity. The claimant
can frequently reach in all other directions with the dominant
right upper extremity. The claimant can have no exposure to
wetness, vibration, unprotected heights, and moving mechanical
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parts. She can tolerate up to moderate noises as that term is
defined in the “Selected Characteristics of Occupations” (“SCO”).
She will be less than ten percent off task due to the need for
bathroom breaks.
Admin. R. at 18.
Plaintiff argues that this residual functional capacity analysis was not
supported by substantial evidence because the ALJ improperly discounted
Plaintiff’s subjective statements and invented, without any record support, a
limitation of less than ten percent off-task time for bathroom breaks. (Pl. Br.
at 20–25.) I’ll address these arguments in turn.
1. Subjective statements.
Plaintiff contends that the ALJ erred by improperly discrediting
Plaintiff’s subjective statements of her somatic symptom disorder. (Pl. Br. at
21–22.) Defendant concedes that the ALJ discredited Plaintiff’s statements.
(Def. Br. at 14–15.) But Defendant contends that this was warranted because
the ALJ found that Plaintiff’s statements were inconsistent with record
evidence. (Id.)
There are two problems with Defendant’s contention.
First, the Eighth Circuit requires consideration of Plaintiff’s subjective
statements absent an explicit adverse credibility finding: “‘In cases involving
somatoform disorder . . . an ALJ is not free to reject subjective experiences [of
somatoform disorder] without an express finding that the claimant’s
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testimony is not credible.’” Nowling, 813 F.3d at 1114 (quoting Metz, 49 F.3d
at 377) (alterations in Nowling). The ALJ made no adverse credibility finding
here. He therefore should have considered Plaintiff’s statements as
substantial evidence of her limitations.
Second, while the ALJ found that Plaintiff’s subjective statements
about “the limiting effects of [her] symptoms are not entirely consistent with
the medical evidence and other evidence in the record,” this finding runs
afoul of Eighth Circuit law. (Admin. R. at 24.) Nowling and Metz teach that
the “prime feature” of somatoform disorders is the “disconnect” between a
sufferer’s subjective experience of pain and clinical evidence thereof. Nowling,
813 F.3d at 1114 (discussing Metz, 49 F.3d at 377). The ALJ thus erred by
discrediting Plaintiff’s subjective statements on the ground that they lacked
medical-record support. See Madden v. Kijakazi, No. 20-cv-1091, Order at 10
(Dkt. No. 22) (W.D. Wis., Mar. 2, 2022) (finding that ALJ erred by
discounting subjective statements in assessing residual functional capacity)
(citing Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009); Nowling, 813 F.3d
at 1113–14); see also Policy Interpretation Ruling Titles II and XVI:
Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an
Individual’s Statements, SSR 96–7p(4), 1996 WL 374186, at *2 (Soc. Sec. July
2, 1996).
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I recommend remanding with instructions that the ALJ consider
Plaintiff’s subjective statements as substantial evidence of her residual
functional capacity or make the requisite credibility findings to discount
them.
2. Calculation of off-task time.
Plaintiff also contends that the ALJ lacked substantial evidence to find
that Plaintiff would require less than ten percent off-task time. (Pl. Br. at 24–
25.) I agree.
At Plaintiff’s hearing, the ALJ asked the vocational expert, “if an
individual were to be off task more than ten percent of the day due to the
combination of the need for bathroom breaks and pain, would such an
individual be able to perform any work?” (Admin. R. at 78.) The vocational
expert responded, “no.” (Id.) The ALJ found that Plaintiff had a functional
limitation of her residual functional capacity of “not more than 10% off task
time due to bathroom breaks.” (Admin. R. at 18.) In other words, the ALJ
found that Plaintiff would spend fewer than six minutes per hour using the
bathroom or otherwise not working.
I could not locate any support for the ALJ’s finding in the record. There
is no medical record, testimony, or other record evidence stating that
Plaintiff’s need for bathroom breaks given her incontinence issues would
amount to less than ten percent of an eight-hour workday.
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If anything, Plaintiff’s medical records and testimony suggest that her
limitations would require more than ten percent off-task time. (Admin. R. at
707–08, 712–13, 1101, 1217, 1439, 2155.) Recent medical records describe
Plaintiff’s “rectal urgency” (id. at 2155); Plaintiff testified that she spends
twenty minutes to an hour in the bathroom one to five times per day for
defecation alone. (Id. at 70–71; see also id. at 2155.) Plaintiff also experiences
urinary urgency and frequency syndrome. (Id. at 707, 1217, 2232. 2264.) She
was prescribed medication to address this. (Id. at 2157.) But even with
treatment, she experiences an urgent need to urinate one to three times per
hour, frequently with painful and bloody urination. (Id. at 68–69, 1219,
1223.) She also experiences bladder spasms that prolong her urination time
as they require her to “sit back down” to “double void.” (Id. at 69.) Her
incontinence worsens with flare-ups of neck and back pain. (Id. at 2155.) She
manages her incontinence by not leaving for home for more than short
periods. (Id. at 69.) She testified that she would need extra breaks in a work
setting to address her incontinence. (Id. at 72.)
This evidence suggests that Plaintiff would spend more than ten
percent of the workday addressing her incontinence. According to the
vocational expert, this would bar her ability to work. (Admin. R. at 78.)
Relatedly, the ALJ’s implicit finding that absenteeism would not limit
Plaintiff’s residual functional capacity is unsupported by the record. The
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vocational expert testified that employer-tolerated absence is one day per
month and not more than six per year. (Admin R. at 82.) Thus, if Plaintiff is
expected to have more than one absence per month, she would not be able to
find work. Plaintiff testified that she is likely to have something closer to
three to seven days of absence per month. (Id. at 19, 64–65.) Indeed, there is
substantial information in the record that Plaintiff copes with her pain by
lying down in bed or reclining with or without ice packs—a treatment that
she has to employ frequently. (Id. at 62, 1070, 1107, 1201, 2060, 2149, 2252,
2303.)
In short, there is not substantial evidence supporting the ALJ’s finding
that Plaintiff’s off-task time would be less than ten percent. I find that
remand is warranted to more fully develop the record on how Plaintiff’s
incontinence, bowel issues, and general perceived pain would impact her off-
task time. See Youness v. Berryhill, No. 17-cv-4108-DSD-BRT, 2018 WL
2716301, at *24 (D. Minn. May 18, 2018) (remanding where record on
incontinence and absenteeism was underdeveloped), report and
recommendation adopted, No. 17-cv-4108-DSD-BRT, 2018 WL 2694506 (D.
Minn. June 5, 2018); Zeaman v. Comm’r of Soc. Sec., No. 6:15-cv-151-TC,
2016 WL 8710452, at *2 (D. Or. Jan. 15, 2016) (remanding to “develop the
record regarding whether plaintiff’s need for restroom breaks during the
workday precluded her from performing past relevant work as actually
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performed or as generally performed”); Land v. Astrue, No. 11-5024, 2012 WL
1409723, at *5 (W.D. Ark. Apr. 23, 2021) (remanding to develop record on
plaintiff’s residual functional capacity given plaintiff’s reported bowel
impairments); Wait v. Astrue, 495 F. Supp. 2d 1131, 1134 (D. Kan. 2007)
(remanding to develop record on incontinence).
RECOMMENDATION
For the reasons discussed above, I RECOMMEND that:
1. Plaintiff’s requested relief (Dkt. 10) be GRANTED; and
2. The Commissioner’s decision be reversed; and
3. The matter be remanded to the Social Security Administration
pursuant to sentence four of 42 U.S.C. § 405(g) for rehearing
consistent with this recommendation.
Dated: February 4, 2026 s/ Elsa M. Bullard_____________
Elsa M. Bullard
United States Magistrate Judge
NOTICE
Filing Objections: The Report and Recommendation component of this
Order and Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit
Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed finding and recommendations
within 14 days after being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after being served a
copy of the objections. See Local Rule 72.2(b)(2). All objections and responses
must comply with the word or line limits set forth in Local Rule 72.2(c).
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