JACQUELYN D. AUSTIN, Magistrate Judge.
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B).
On June 21, 2012, Plaintiff filed an application for disability insurance benefits ("DIB"), alleging an onset of disability date of December 20, 2011. [R. 128-31.] The claim was denied initially and upon reconsideration by the Social Security Administration ("the Administration"). [R. 82-94, 108]. Thereafter, the claimant filed a written request for hearing and, on April 2, 2014, he appeared with an attorney and testified at a hearing before Administrative Law Judge ("ALJ") Thomas F. Batson. [R. 53-78.]
The ALJ issued a decision on June 2, 2014, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 19-29.] At Step 1,
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found as follows:
[R.23, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff is unable to perform his past relevant work as a convenience store clerk, retail store department manager, forklift operator, and retail stocker. [R. 27, Finding 6.] However, based Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 28, Finding 10.] Accordingly, the ALJ concluded Plaintiff had not been under a disability, as defined in the Act, from December 20, 2011, through the date of the decision. [R. 28, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, and on October 28, 2015, the Appeals Council declined. [R. 1-6.] Plaintiff filed the instant action for judicial review on December 22, 2015. [Doc. 1.]
Plaintiff contends that errors by the ALJ require the decision to be reversed with an outright award of benefits or remanded for further administrative proceedings. [Doc. 14.] Specifically, Plaintiff alleges the ALJ failed to properly explain his consideration of evidence directed to Plaintiff's need for frequent bathroom breaks, as frequent as 2-4 times per hour, in making his credibility, RFC and step 5 determinations. [Id. at 11-16.]
The Commissioner contends the decision is supported by substantial evidence and should be affirmed. [Doc. 16.] Specifically, the Commissioner argues that the ALJ reasonably concluded that Plaintiff's assertions about his limitations were not entirely credible and that he included limitations in the RFC which were adequate to accommodate his incontinency issues. [Id. at 6.]
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F.Supp. 686, 687 (S.D.W. Va. 1963))("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is `substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision `with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991).
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
Id. § 423(d)(1)(A).
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors.
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion). First, "the ALJ must determine whether the claimant has produced medical evidence of a `medically determinable impairment which could reasonably be expected to produce . . . the actual pain, in the amount and degree, alleged by the claimant.'" Id. (quoting Craig, 76 F.3d at 594). Second, "if, and only if, the ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as a matter of fact, whether the claimant's underlying impairment actually causes her alleged pain." Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the "pain rule" applicable within the United States Court of Appeals for the Fourth Circuit, it is well established that "subjective complaints of pain and physical discomfort could give rise to a finding of total disability, even when those complaints [a]re not supported fully by objective observable signs." Coffman v. Bowen, 829 F.2d 514, 518 (4th Cir. 1987) (citing Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). The ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence. 20 C.F.R. § 404.1528. Indeed, the Fourth Circuit has rejected a rule which would require the claimant to demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108 (4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all administrative law judges within the circuit a policy stating Fourth Circuit law on the subject of pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336-37 (4th Cir. 1990). The Commissioner thereafter issued the following "Policy Interpretation Ruling":
SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed. Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, "If an individual's statements about pain or other symptoms are not substantiated by the objective medical evidence, the adjudicator must consider all of the evidence in the case record, including any statements by the individual and other persons concerning the individual's symptoms." Id. at 34,485; see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
The ALJ must make a credibility determination based upon all the evidence in the record. Where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Although credibility determinations are generally left to the ALJ's discretion, such determinations should not be sustained if they are based on improper criteria. Breeden, 493 F.2d at 1010 ("We recognize that the administrative law judge has the unique advantage of having heard the testimony firsthand, and ordinarily we may not disturb credibility findings that are based on a witness's demeanor. But administrative findings based on oral testimony are not sacrosanct, and if it appears that credibility determinations are based on improper or irrational criteria they cannot be sustained.").
Plaintiff was diagnosed with prostate cancer in 2005 and ultimately underwent a radical prostatectomy in December 2006 which left him incontinent. [R. 318.] During a consultative exam in October 2011, Plaintiff explained that his bladder constantly leaks, he wears a pad and feels the need to be close to a bathroom at all times; worries about being in public situations because of odor issues; and frequently feels anxious in public situations. [Id.] During an initial evaluation at Proaxis Therapy, on referral by Dr. James Smith ("Dr. Smith"), Plaintiff reported constant urinary leakage; wearing 5-6 depends per day as well as 10-15 pads per day; large amounts of leakage when standing from sitting; and urinating 13-15 times per day, as well as 4-5 times at night. [R. 350.] Plaintiff testified that his last job was as a stocker at Big Lots, but that his job ended due to his frequent trips back and forth to the bathroom at a frequency of about 2-3 times per hour. [R. 58-59.] Plaintiff also testified that he worked at Wal-mart from 1996-2007 and that his job ended in 2007 due to issues with his frequent urination. [R. 59.] Additionally, his jobs at B.P. Staffing (2007), UTI Integrated Logistics (2007-08), Piedmont Petroleum Corp. (2008- 09), Precision Valve (2008-09), C&S Wholesale Grocers (2009-10), and Dollar General (2011) all ended due to his having to make frequent trips back and forth to the bathroom. [Id.]
Plaintiff further testified that, in September 2012, he had an AMS-800 urinary control device inserted to help with his urological symptoms. [R. 61.] Plaintiff alleges, however, that he still experiences leakage and frequent urination with a need to go to the restroom 3-4 times an hour. [R. 62.] Plaintiff testified that he wears urinary male guards or pads twenty-four hours a day and that he changes them 3-4 times a day. [R. 63.]
Plaintiff contends the ALJ did not adequately consider his limitations due to his issues with urinary frequency in developing his RFC and, furthermore, failed to explain his consideration of Plaintiff's testimony regarding these limitations. [Doc. 14 at 11-16.] Plaintiff claims adequate consideration of this limitation is critical because the VE testified that, given the existence of Plaintiff's alleged limitations, no work would be available to Plaintiff. [Id. at 15.] The Court agrees.
In determining Plaintiff's RFC, the ALJ followed a two-step process in which he first determined whether there was an underlying medically determinable physical or mental impairment that could reasonably be expected to produce Plaintiff's pain or other symptoms. [R. 24.] The ALJ noted as follows:
[Id.]
After determining the presence of an impairment or impairments at Step 1, the ALJ, at Step 2, evaluated the intensity, persistence, and limiting effects of Plaintiff's symptoms to determine the extent to which they limit the claimant's functioning. [R. 24-27.] Following this two-step process, the ALJ considered Plaintiff's underlying physical and mental impairments and the associated medical records to determine his RFC. [Id.]
The ALJ ultimately found that Plaintiff was capable of performing light work with the exception that he have "double the amount of breaks" due to his urinary incontinence which requires him to change his male guard pads two times during an 8-hour workday, each changing taking up to five minutes. [R. 23.] The ALJ explained his consideration of the objective medical evidence with respect to Plaintiff's incontinency as follows:
[R. 25-27.]
In determining Plaintiff's ability to do work in the national economy, the ALJ asked the VE whether someone of Plaintiff's age, education and vocational background who has issues with incontinency due to surgeries for kidney stones and prostate cancer, and who might need to change a pad twice during an 8-hour period, and who also could have to go to bathroom frequently about two times or more normal than the usual breaks, could find work in the national economy. [R. 73-75.] The VE responded affirmatively, citing to work as a night cleaner, mail clerk, or assembler. [R. 75.] Counsel for Plaintiff asked the VE whether these jobs would exist for a person who would be off of the job three to four times per hour for a period of five minutes each, and the VE responded that this limitation would preclude all work. [R. 76.]
The Administration has provided a definition of RFC and explained what a RFC assessment accomplishes:
SSR 96-8p, 61 Fed.Reg. 34,474-01, at 34,475 (July 2, 1996) (internal citation and footnotes omitted). The RFC assessment must first identify the claimant's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. 404.1545 and 416.945. See id. Only after this identification and assessment may RFC be expressed in terms of the exertional levels of work: sedentary, light, medium, heavy, and very heavy. Id. Additionally, the Administration has determined that in assessing RFC, the ALJ
Id. at 34,476.
To assess a claimant's RFC, the ALJ must consider all relevant evidence in the record, including medical history, medical signs, laboratory findings, lay evidence, and medical source statements. Id. at 34,477. Thus, an ALJ's RFC assessment will necessarily entail assessing the credibility of any alleged limitations, including assessing the credibility of testimony offered by the claimant.
An ALJ's decision regarding a claimant's credibility "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p, 1996 WL 374186 at *1. The Ruling states:
SSR 96-7p, 1996 WL 374186 at *2; see also Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir.1985) (stating that credibility determinations "should refer specifically to the evidence informing the ALJ's conclusion"); Hatcher v. Sec'y, 898 F.2d 21, 23 (4th Cir.1989) (quoting Hammond).
Here, the ALJ concluded that Plaintiff was able to "control his condition with the use of a urinary control device and with the use of male guard pads," but the ALJ gave no explanation of his decision to disregard Plaintiff's testimony that, even after the implanting of the AMS-800 urinary control device, Plaintiff was still using the restroom 3-4 times an hour and still experiencing leakage which required him to use male guards which he had to change 3-4 times per day. [See R. 62-63.] Specifically, the ALJ failed to explain his conclusion that merely doubling the amount of work breaks Plaintiff could take would accommodate him going to the restroom two or more times per hour in an 8-hour work day. The VE testified that the jobs he identified for Plaintiff generally allowed the following breaks: 15 minutes in the morning and afternoon, 30 minutes for lunch, and one or two sort additional breaks for restroom or smoking. [R. 76.] While the ALJ accounted for the number of times Plaintiff may need a break to change his male guard, the ALJ failed to sufficiently explain his reasoning for finding that Plaintiff's frequent need for bathroom breaks could be accommodated by merely doubling his break options.
And, in this case, the evidence showed that Plaintiff's limitations required him to miss ten to twenty minutes of work each hour due to his need to take bathroom breaks 2-4 times per hour at five minutes per visit. Therefore, the ALJ's statement that Plaintiff's credibility was weakened by inconsistencies between Plaintiff's allegations and the medical evidence, without pointing out what particular medical evidence, was not a sufficient explanation. A sufficient explanation was required especially in this case where the VE testified that there would be no work for a person who would have to leave the job two times per hour, or ten minutes per hour, to urinate.
Upon review of the ALJ's decision and the evidence of record, particularly Plaintiff's testimony regarding his limitations and his many past work attempts that ended due to his frequent bathroom trips, the Court finds that substantial evidence does not support the ALJ's credibility findings or the RFC determination. The RFC formulation failed to adequately accommodate Plaintiff's severe urinary incontinence impairment; therefore, remand is required for further administrative proceedings.
The Court has found that the ALJ's failure to sufficiently explain his consideration of Plaintiff's credibility and the RFC determination is a proper basis for remand. Also, on remand the ALJ is directed to consider Plaintiff's remaining allegations of error.
Wherefore, based on the foregoing, it is recommended that the decision of the Commissioner be REVERSED and the case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative action consistent with this recommendation.
IT IS SO RECOMMENDED.
