IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ERIN L. MUNOZ,

Plaintiff,

v. Civil Action 2:18-cv-581

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Jolson

COMMISIONER OF 

SOCIAL SECURITY, 

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Erin L. Munoz, brings this action under 42 U.S.C. § 405(g) seeking review of a 

final decision of the Commissioner of Social Security (“Commissioner”) denying her application 

for Supplemental Security Income (“SSI”). For the reasons set forth below, it is 

RECOMMENDED that Plaintiff’s Statement of Errors (Doc. 9) be OVERRULED, and that 

judgment be entered in favor of Defendant.

I. BACKGROUND

Plaintiff filed her application for SSI on August 25, 2014, alleging that she was disabled 

beginning September 1, 2013. (Doc. 7, Tr. 363). After her application was denied initially and on 

reconsideration, the Administrative Law Judge (the “ALJ”) held the hearing on April 21, 2017. 

(Tr. 251–75). On August 23, 2017, the ALJ issued a decision denying Plaintiff’s application for 

benefits. (Tr. 45–66). The Appeals Council denied Plaintiff’s request for review, making the 

ALJ’s decision the final decision of the Commissioner. (Tr. 1–7).

Plaintiff filed the instant case seeking a review of the Commissioner’s decision on June 12, 

2018 (Doc. 1), and the Commissioner filed the administrative record on September 24, 2018 

(Doc. 7). Plaintiff filed her Statement of Errors (Doc. 9) on November 19, 2018, Defendant filed 
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an Opposition (Doc. 12) on January 30, 2019, and Plaintiff filed her Reply (Doc. 15) on February 

20, 2019. Thus, this matter is now ripe for consideration.

A. Relevant Hearing Testimony

Relevant here, Plaintiff testified at the administrative hearing that she has been unable to 

work since September 1, 2013. (Tr. 255). When the ALJ asked why she cannot work, Plaintiff 

testified that part of the reasons is her frequent need for a restroom break:

Q. Okay tell me why you can’t, cannot work. What prevents you from working?

A. Well other than the chronic kidney problems that I have. With that, it’s actually 

progressed into Stage 2 kidney disease now. I have chronic pain from that. I have 

chronic hydronephrosis, which is where I have infection. It causes me to have to 

go to the bathroom every few minutes. . . .

(Tr. 256). Plaintiff later elaborated, in response to her lawyer’s questioning, that she needs to 

urinate three times an hour, sometimes more, because of the diuretic she takes for her kidney 

disease. (Tr. 264).

B. Relevant Medical Background 

Plaintiff has a number of physical and mental impairments. Most of which are not at issue 

here. What is before the Court is how often Plaintiff needs bathroom access. In October of 2013, 

Plaintiff had a right-side kidney stone removed (Tr. 550), and, in April 2014, she had bilateral 

kidney stones removed (Tr. 457). Dr. Benjamin Gibson performed both procedures, and, on 

October 24, 2014, he diagnosed Plaintiff with “kidney stones-recurrent urinary tract infection.” 

(Tr. 795). In doing so, Dr. Gibson relied on diagnostic tests from 2012 through 2014. (Id.) In 

addition to kidney stones, Plaintiff’s kidney disease causes flank pain, urinary tract infections, and 

renal insufficiency. (See, e.g., Tr. 556 (kidney stones), 481 (flank pain), 800 (urinary tract 

infection), 1021 (renal insufficiency)).

C. The ALJ’s Decision

The ALJ found that Plaintiff had not engaged in substantial gainful employment since 
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August 25, 2014, the date of her application. (Tr. 47). The ALJ determined that Plaintiff suffered 

from the following severe impairments: post-traumatic stress disorder (PTSD); depressive 

disorder, not otherwise specified; chronic kidney disease with chronic renal insufficiency and 

pyelonephritis; and degenerative disc disease with radiculopathy. (Id.). The ALJ, however, found

that none of Plaintiff’s impairments, either singly or in combination, met or medically equaled a 

listed impairment. (Tr. 48). 

As to Plaintiff’s residual functional capacity (“RFC”), the ALJ opined:

[T]he claimant has the residual functional capacity to perform light work as defined 

in 20 CFR 416.967(b) except frequently climbing ramps or stairs, never climbing 

ladders, ropes, or scaffolds, frequently stooping, and frequently crawling. She can 

frequently handle with the right upper extremity. The claimant can have occasional 

exposure to extreme cold and wetness. She is limited to simple, routine, and 

repetitive tasks with goal-based production/work measured by end result, not pace 

work. The claimant would be off task 10 percent of the day for bathroom breaks. 

She is limited to low stress jobs, defined as only occasional decision making 

required and only occasional changes in the work setting. The claimant cannot 

interact with the public and only occasionally interact with coworkers and 

supervisors.

(Tr. 50–51) (emphasis added).

II. STANDARD OF REVIEW

The Court’s review “is limited to determining whether the Commissioner’s decision is 

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v. 

Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g). “[S]ubstantial 

evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such 

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers 

v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of Health & 

Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The Commissioner’s findings of fact must also 

be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To 
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this end, the Court must “take into account whatever in the record fairly detracts from [the] weight” 

of the Commissioner’s decision. Rhodes v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 

4881574, at *2 (S.D. Ohio Aug. 17, 2015).

III. DISCUSSION

Plaintiff raises one error to the Court. (Doc. 9). She argues that the ALJ’s decision should 

be reversed because the ALJ improperly accounted for Plaintiff’s need for frequent restroom 

breaks. At base, Plaintiff argues that the state agency reviewers found that she needed frequent 

bathroom breaks, defined as one-third to two-thirds of the day. (Doc. 9 at 6). Plaintiff argues that 

by not adopting this limitation, the ALJ reversibly erred. (Id. at 6–9). The Undersigned disagrees 

for two reasons. 

A. Defining “Frequent”

State agency reviewing physicians Michael Lehv, M.D., and Leon D. Hughes, M.D., 

reviewed the record and completed physical residual functional capacity assessments in November 

2014 and March 2015, respectively. (Tr. 283–84, 298–99). Dr. Lehv and Dr. Hughes opined that 

Plaintiff retained the capacity to perform light work with additional limitations, including: never 

climbing of ladders, ropes, and scaffolds; frequently climbing of ramps/stairs, stooping, and 

crawling, and crouching; and “[s]hould be allowed frequent bathroom breaks” (Id.). In evaluating 

these opinions, the ALJ found the state reviewers’ use of the word “frequent” to be vague. (Tr. 

63).

Plaintiff responds that the use of the word was not vague. Instead, relying on Social 

Security Ruling 83-10, Plaintiff argues that the state agency reviewers deliberately used the word 

“frequent” to mean “occurring from one-third to two-thirds of the time.” See SSR 83-10, 1983 

SSR Lexis 30 (defining exertional levels and defining “frequent” as “occurring one-third to two-
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thirds of the time”). Said differently, Plaintiff argues that the state agency reviewers clearly meant 

that Plaintiff needed bathroom access for 160 to 320 minutes per day. (See generally Doc. 9 at 6–

9).

Plaintiff, however, offers no legal support for this argument. While “frequently” is defined 

by the agency to assess postural, environmental, and manipulative limitations, the Undersigned has 

uncovered no examples of SSR 83-10 being applied to the need for restroom access in this way. 

The Undersigned also notes that the state agency reviewers ultimately concluded that Plaintiff 

could work. (Tr. 283–84, 298–99). If the reviewers had believed Plaintiff needed restroom breaks 

for up to two-thirds of the day, it is difficult to see how that would not have been work preclusive. 

Said differently, if Plaintiff needs the restroom for up to 320 minutes per day, how could she 

perform any job? Consequently, it was not unreasonable for the ALJ not to use the definition of 

“frequently” in SSR 83-10 in this context. Likewise, it was not error for the ALJ to classify the 

state agency reviewers’ use of the word “frequent” as vague.

B. Substantial Evidence

More important, the Undersigned concludes that substantial evidence supports the ALJ’s 

crafted RFC. Regardless of what the state agency reviewers meant, the ALJ was responsible for 

determining what work Plaintiff could do. The ALJ thoroughly explained his consideration of 

Plaintiff’s argument that her urinary frequency was work preclusive:

The claimant’s representative argued that her kidney impairments cause urinary 

frequency that prevents all full-time, competitive employment due to excessive 

bathroom breaks. However, as noted many times above, the claimant’s medical 

records show that she usually had no urinary frequency, urgency, or dysuria. This 

is not to say that the claimant never has problems with urinary frequency or other 

dysuria. Admittedly, the medical records also include several complaints of such 

symptoms (e.g., Ex. 16F/98; 17F/2). However, these complaints are infrequent and 

inconsistent compared to the many records stating that the claimant had no urinary 

symptoms. Thus, the medical evidence of record as a whole shows that the 

claimant’s symptoms are not of the frequency or severity alleged at the hearing and 
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argued by the representative. Rather, the medical evidence as a whole shows that 

the claimant would be off task no more than 10 percent of the worktime for 

bathroom breaks. This would be 48 minutes or approximately 10 extra five-minute 

breaks per day in addition to regular breaks, which is more than enough time to 

accommodate the claimant’s symptoms based on the infrequency of her complaints 

in the medical records. Additionally, the limitation to goal-based production, rather 

than pace work, also accommodates her need for extra bathroom breaks.

(Tr. 60).

Throughout his opinion, the ALJ summarized Plaintiff’s medical history as the regulations 

require. See SSR 96-8p, 1996 WL 374184, at * 7; 20 C.F.R. § 416.945(a)(3) (requiring the RFC 

is assessed “based on all of the relevant medical and other evidence” of record). The ALJ

acknowledged that, at times, Plaintiff reported urinary frequency (Tr. 60 (citing, e.g., 16F/98; 

17F/2)), but he ultimately found that Plaintiff “would be off task 10 percent of the day for bathroom 

breaks.” (Tr. 60). To come to this conclusion, the ALJ cited, inter alia, the following records 

(listed chronologically):

• October 2014 stated that Plaintiff had no dysuria (Tr. 53 (citing Tr. 848) (denying dysuria))

• May 2015 (Tr. 55 (citing Tr. 1221–23) (denying dysuria))

• June 2015 (Tr. 55 (citing Tr. 1267, 1405, 1418 1230) (denying urinary abnormalities and 

dysuria))

• August 2015 (Tr. 56 (citing Tr. 1369–70 (showing no complaints of urinary frequency))

• November 2015 (Tr. 56 (citing Tr. 1391–92) (showing no complaints of urinary 

frequency))

• July 2016 (Tr. 57 (citing Tr. 1610–11 (showing no complaints of urinary frequency)))

• February 2017 (Tr. 59 (citing Tr. 1715 (denying urinary frequency))

• April 2017 (Tr. 59 (citing Tr. 1982–84 (reporting no urinary frequency))

The ALJ likewise noted that “although the medical evidence of records supports some 

limitations resulting from [Plaintiff’s] impairments, the objective examinations and other 
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diagnostic techniques usually show only mild or moderate abnormalities and many normal 

findings.” (Tr. 52). Importantly, no medical record states the frequency with which Plaintiff needs 

restroom access.

To accommodate Plaintiff’s need for restroom access, the ALJ fashioned the RFC to 

include “48 minutes or approximately 10 extra five-minute breaks per day in addition to regular 

breaks.” (Tr. 60). The ALJ additionally made clear that his opined limitation of goal-based 

production, rather than pace work, would also accommodate Plaintiff’s need for restroom breaks. 

(Id.) As explained above, substantial evidence supports this conclusion. See Rogers, 486 F.3d at 

241 (holding that substantial evidence is more than a scintilla but less than a preponderance).

IV. CONCLUSION

Based on the foregoing, it is RECOMMENDED that Plaintiff’s Statement of Errors (Doc. 

9) be OVERRULED, and that judgment be entered in favor of Defendant.

V. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those specific 

proposed finding or recommendations to which objection is made, together with supporting 

authority for the objection(s). A District Judge of this Court shall make a de novo determination 

of those portions of the Report or specific proposed findings or recommendations to which 

objection is made. Upon proper objection, a District Judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 

636(b)(1).
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The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: May 10, 2019 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE