Summary
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
Summary of this case from Jennifer M. v. Comm'r, Soc. Sec. Admin.Opinion
2:22-cv-06655-HDV (ADS)
12-28-2023
NICOLE S., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, the records on file, and the Report and Recommendation (“Report”) of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which objections have been made.
The Report recommends that the Commissioner's decision denying disability benefits be affirmed. (ECF No. 24.) Plaintiff's Objections to the Report (ECF No. 25) do not warrant a change to the Magistrate Judge's findings or recommendation, for the following reasons.
Plaintiff objects that the Administrative Law Judge (“ALJ”) did not state clear and convincing reasons to discredit Plaintiff's pain and subjective symptoms testimony about her need to use the bathroom. (ECF No. 25 at 2-3.) Specifically, “Plaintiff's argument is that the ALJ's decision does not have clear and convincing analysis as to the [residual functional capacity (“RFC”)] limitation that he gave, i.e., ‘use of up to 12 minutes for every 2 hours' [to use the bathroom].” (Id. at 3.) This objection is unfounded because the ALJ was not required to provide a “clear and convincing analysis” to support his RFC assessment. Instead, in order to discredit evidence, specifically Plaintiff's testimony, that was inconsistent with the RFC assessment, “the ALJ was required to provide specific, clear, and convincing reasons to discount the alleged severity of [Plaintiff's] subjective symptoms and pain.” Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017). Plaintiff appears to concede that the ALJ did provide such reasons, by commenting that “there may be a reasonable argument” for the ALJ's rejection of Plaintiff's testimony, because it was inconsistent with the objective medical evidence and with her prior statements. (ECF No. 25 at 3.)
Plaintiff objects that “there is no support on the record” for the ALJ's RFC assessment limiting Plaintiff to use of the bathroom for up to 12 minutes for every 2 hours. (ECF No. 25 at 3.) Specifically, Plaintiff objects that “she has greater issues in the morning” regarding her need for bathroom access. (Id.) As the Report found, however, the ALJ cited legally sufficient reasons for discounting Plaintiff's testimony about needing to use the restroom more often in the mornings. (ECF No. 24 at 14.) The ALJ cited generally normal exam findings, improvement in gastrointestinal symptoms after Plaintiff began Entyvio infusion therapy, Plaintiff's reports to her doctor that she felt the best she ever had, her statements that she had no fear of eating, and her failure to report issues during exams. (ECF No. 18-3 at 22-23.) These findings were sufficient for the ALJ to discount Plaintiff's testimony about having greater issues in the morning regarding bathroom access.
Plaintiff objects that the testimony of the vocational expert (“VE”) about a hypothetical worker's need for frequent bathroom breaks would imply that employers would be obligated to grant an “accommodation” to such a worker. (ECF No. 25 at 3.) The Court has independently reviewed the transcript of the VE's testimony. (ECF No. 18-3 at 44-50.) The Court agrees with the Report that “the VE did not suggest that the hypothetical individual might require reasonable accommodation to work or that the hypothetical individual's employability was contingent on restroom access and breaks beyond what is typical in the work environment.” (ECF No. 24 at 16.) Instead, the VE testified 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.” (ECF No. 18-3 at 47, 48.) Nothing in the VE's testimony suggested that employers would be required to grant an accommodation for a worker with such a requirement.
Relatedly, Plaintiff requests that the Court “apply the logic in Richards v. Colvin, 2015 WL 8489032, at *6 (S.D. W.Va. Oct. 7, 2015) in finding that additional bathroom breaks would be an accommodation.” (ECF No. 25 at 3-4.) In Richards, the Court stated that, “at some point, an employee's need for extra bathroom breaks transforms from being a condition largely tolerated in the ordinary course of certain occupations to being a condition that necessitates a workplace accommodation.” Richards, 2015 WL 8489032, at *7. Plaintiff's reliance on this case is misplaced. The error in Richards was that the ALJ had “failed to sufficiently quantify what he meant by ‘extra brief bathroom breaks' in the RFC finding,” “never resolved the question by establishing a definitive number,” and “declined to clarify what he meant by ‘extra brief bathroom breaks' in the RFC finding.” Id. Here, in contrast, the ALJ for this case precisely quantified Plaintiff's need for extra bathroom breaks, by finding that Plaintiff would require ready access to a restroom “for use of up to 12 minutes for every 2 hours.” (ECF No. 18-3 at 21.) The ALJ for this case also asked the VE about this exact limitation, to which the VE responded that employers would tolerate it. (Id. at 48.) Thus, the record for this case did not suggest that Plaintiff's need for extra bathroom breaks had crossed a point into a condition that necessitated a workplace accommodation.
In sum. Plaintiff s objections are overruled.
IT IS ORDERED that (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; and (2) the final decision of the Commissioner is affirmed.