UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

PAMMY J. MOORE, 

Plaintiff, 

 Civil Action 2:18-cv-634 

 Chief Judge Edmund A. Sargus, Jr. 

v. Magistrate Judge Chelsey M. Vascura 

 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

 

REPORT AND RECOMMENDATION

 

 Plaintiff, Pammy J. Moore (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for 

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

applications for a period of disability, disability insurance benefits, and supplemental security 

income. This matter is before the undersigned for a Report and Recommendation on Plaintiff’s 

Statement of Errors (ECF No. 11), the Commissioner’s Response in Opposition (ECF No. 16), 

Plaintiff’s Reply (ECF No. 17), and the administrative record (ECF No. 8). For the reasons that 

follow, the undersigned RECOMMENDEDS that the Court REVERSE the Commissioner of 

Social Security’s non-disability finding and REMAND this case to the Commissioner and the 

ALJ under Sentence Four of § 405(g) for further consideration consistent with this Report and 

Recommendation. 

I. BACKGROUND 

Plaintiff protectively filed her applications for a period of disability and disability 

insurance benefits and supplemental security income on June 25, 2014. Plaintiff alleged a 
2 

disability onset date of June 3, 2014. Plaintiff’s application was denied initially on October 2, 

2014, and upon reconsideration on July 1, 2015. Plaintiff sought a hearing before an 

administrative law judge. Administrative Law Judge Timothy Gates (the “ALJ”) held a hearing 

on March 2, 2017, at which Plaintiff, represented by counsel, appeared and testified. 

Vocational expert Carl W. Hartung (the “VE”) also testified at the hearing. On August 18, 

2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the 

Social Security Act. On April 30, 2018, the Appeals Council denied Plaintiff’s request for 

review and adopted the ALJ’s decision as the Commissioner’s final decision. Plaintiff then 

timely commenced the instant action. 

In her Statement of Errors (ECF No. 11), Plaintiff raises several contentions of error. 

Plaintiff first contends that the ALJ’s decision is not supported by substantial evidence because it 

does not adequately consider or accommodate her diarrhea and neuropathy. (Id. at 5-9.) 

Relatedly, Plaintiff asserts that the ALJ erred in not finding her neuropathy as a severe 

impairment. (Id. at 14-16.) Plaintiff also contends that the ALJ erred in evaluating the 

opinions of her treating physicians, Drs. Prasad Kudalkar and Robert Rupert, and treating nurse 

practitioner, Joel Rice. (Id. at 9-14.) 

II. RELEVANT MEDICAL EVIDENCE 

A. Overview of Relevant Medical Evidence1

On April 29, 2014, Plaintiff presented to Fayette County Memorial Hospital with 

episodes of diarrhea occurring 10 to 15 times per day. (R. at 434.) Testing revealed that 

 

1 In her Statement of Errors, Plaintiff does not challenge the Commissioner’s findings with 

respect to her alleged mental impairments. Accordingly, the Court will focus its review of the 

medical evidence on Plaintiff’s alleged exertional impairments. 
3 

Plaintiff had a colonic obstruction secondary to a sigmoid carcinoma, and she was diagnosed 

with adenocarcinoma of the colon. (R. at 382, 389.) On June 5, 2014, Plaintiff had 

emergency surgery consisting of a decompressive loop transverse colostomy and insertion of a 

right subclavian triple lumen catheter. (R. at 352, 382.) From August 2014 through May 

2015, Plaintiff was treated with chemotherapy and radiation. (R. at 807-16, 747.) Plaintiff’s 

cancer has been in remission since she completed radiation in May 2015. (R. at 853.) 

Plaintiff’s medical records reveal numerous complaints of diarrhea after completion of 

radiation. (R. at 665, 685, 695, 699, 702, 704, 705, 730, 735, 737-40, 747, 807, 818, 871, 884.) 

Various doctors noted that Plaintiff’s diarrhea was ongoing and had been occurring since her 

colon surgery. (R. at 704-05, 818, 737, 871.) In early 2017, treating oncologist, Prasad 

Kudalkar, M.D., noted that Plaintiff has had loose stools “since her surgery 2 years ago,” and 

that her diarrhea “is thought to be related to her colon surgery.” (R. at 871, 884.) The record 

indicates that Plaintiff used both over-the-counter and prescription medications for her bowel 

issues, and that she was prescribed Depends disposable underwear. (R. at 848, 735, 740, 878, 

818.) On some occasions during this time period, Plaintiff’s treatment records state that 

diarrhea was not present and/or that she was constipated. (See e.g. R. at 628, 681, 688, 772, 

853, 858.) 

The medical records also contain evidence that Plaintiff suffered from chemotherapyinduced neuropathy. Plaintiff was noted to have “mild neuropathy,” “ongoing grade 1 to 2 

peripheral neuropathy,” “neuropathy,” and “chemotherapy-induced peripheral neuropathy” 

throughout her treatment records. (R. at 626, 730, 811, 813, 884.) On December 28, 2015, 

Plaintiff’s oncologist, Jeffrey VanDeusen, M.D., noted that Plaintiff “continues to suffer from 
4 

chemotherapy-induced peripheral neuropathy from her oxaliplatin. She has been placed on 

Lyrica and venlafaxine without much benefit.” (R. at 730.) 

B. Medical Opinion Evidence 

On September 30, 2014, state-agency physician Eli Perencevich, D.O., opined that 

Plaintiff could perform light work with postural and environmental limitations. (R. at 68-70.) 

He found that Plaintiff was limited to occasionally climbing ladders/ropes/scaffolds, and 

frequently climbing ramps/stairs, stooping, kneeling, crouching, and crawling. (R. at 68-69.) 

He found that Plaintiff had no manipulative limitations. He opined that Plaintiff should avoid 

concentrated exposure to vibration, fumes, odors, dusts, gases, poor ventilation, etc., and avoid 

even moderate exposure to hazards (machinery, heights, etc.). (Id. at 69.) On reconsideration, 

on April 14, 2015, state-agency physician Esberdado Villanueva, M.D., adopted Dr. 

Perencevich’s opinions, but added additional postural and environmental limitations. (R. at 96-

98.) Dr. Villanueva limited Plaintiff to only occasional stooping, kneeling, crouching, and 

crawling. (R. at 97.) He also found Plaintiff should avoid concentrated exposure to extreme 

cold, extreme heat, humidity, and vibrations; avoid even moderate exposure to fumes, odors, 

dusts, gases, poor ventilation, etc.; and avoid all exposure to hazards (machinery, heights, etc.). 

(R. at 98.) 

On November 10, 2014, while Plaintiff was receiving chemotherapy and prior to 

undergoing radiation, Plaintiff’s treating Nurse Practitioner Joel Rice submitted an RFC 

questionnaire on her behalf. (R. at 521.) He opined that Plaintiff was incapable of performing 

even “low stress” jobs. (R. at 518.) He further opined that Plaintiff could walk a half of a 

block; sit for 2 hours at one time; stand for 20 minutes at one time; and sit and stand for less than 
5 

2 hours total in an 8-hour work day. (R. at 519.) He opined that Plaintiff must walk for 15 

minutes every 15 minutes; shift positions at will; take unscheduled breaks every hour for about 

20 minutes; and elevate her legs at 180 degrees all day. (R. at 519-20.) He further found that 

Plaintiff can never lift or carry any amount of weight, and can never stoop, crouch, or climb 

ladders or stairs. (R. at 520.) He opined that Plaintiff would miss work more than 4 days per 

month. (R. at 521.) 

On November 14, 2014, Plaintiff’s oncologist, Dr. Robert Rupert, submitted a medical 

opinion. (R. at 621-22.) He opined that Plaintiff could not work. (R. at 622.) He further 

found that she could stand and sit for 30 minutes at one time and could not lift any weight on an 

occasional or frequent basis. (R. at 622.) 

On March 9, 2017, Plaintiff’s oncologist, Prasad R. Kudalkar, M.D., submitted a medical 

opinion. (R. at 884-890.) Dr. Kudalkar opined that Plaintiff could occasionally lift/and or 

carry less than 10 pounds; frequently lift and/or carry less than 10 pounds; stand and/or walk less 

than 2 hours in an 8-hour workday; and sit less than about 6 hours in an 8-hour workday. (R. at 

884.) He further opined that Plaintiff’s ability to push and/or pull is limited in her upper and 

lower extremities. (Id.) When asked to explain the evidence that supports these conclusions, 

Dr. Kudalkar stated that: 

[Plaintiff] has history of colon ca and had received chemo therapy in 2014. She 

has residual peripheral neuropathy due to chemotherapy which limits her activities. 

She also has diarrhea 4-5 episodes / day [and] occasional incontinence which is 

thought to be related to her colon surgery. She has COPD and using nebulizer 

[and] inhalers. 

(R. at 884.) Dr. Kudalkar also opined that Plaintiff could occasionally climb ramps and/or 

stairs, but never ladders, ropes, and/or scaffolds, and that she could never balance, stoop, kneel, 
6 

crouch, or crawl. (R. at 885.) He further concluded that Plaintiff was limited in reaching, 

handling (gross manipulation), and fingering (fine manipulation). (R. at 886.) He explained 

that Plaintiff’s “COPD makes gross manipulations difficult,” and that “peripheral neuropathy 

limits fine manipulation, feeling.” (R. at 886.) Finally, Dr. Kudalkar found that Plaintiff is 

required to avoid even moderate exposure to extreme cold, extreme heat, wetness, humidity, 

vibration, fumes, odors, dusts, gases, poor ventilation, etc., as well as hazards (machinery 

heights, etc.), due to her COPD and peripheral neuropathy. (R. at 887.) 

III. HEARING TESTIMONY 

At the hearing, Plaintiff testified that she lives in an apartment with her husband and three 

children. (R. at 39.) She stated that her daughter helps her “a lot” with cooking and cleaning. 

(R. at 40.) Plaintiff testified that she leaves the house “[p]robably at least once a day.” (R. at 

54.) 

Plaintiff testified that her colon cancer has been in remission since late 2015, but she still 

sees her doctor “all the time” for follow-up. (R. at 41-42.) She testified that she has “diarrhea 

consistently, and . . . can’t seem to hold [her] bowels.” (R. at 42.) She stated that her doctors 

have her “on the underwear now,” and that she will “probably have to live with it for the rest of 

[her] life.” (Id.) Plaintiff testified that even after radiation treatment, she did not feel that she 

could return to work, explaining: 

No, I was having problems with my bowels, but I don’t even know when the 

diarrhea is going to hit. Sometimes I have it every day. Sometimes I have it every 

two days, and I just don’t know when it’s going to hit. And, I’ve had to leave the 

grocery cart in the store full before, because I had to leave to and go home, and 

change my clothes. 

(R. at 46.) 
7 

Plaintiff further testified that her COPD limits her ability to stand and walk. (R. at 47.) 

She also stated that she has neuropathy, explaining that her “hands are still numb from the 

chemotherapy, and the bottom of [her] feet [are] numb from the chemotherapy.” (Id.) When 

asked how the numbness in her hands affects her, Plaintiff testified as follows: “Well, I can start 

carrying a cup of coffee, and all of a sudden my hand will go numb, and I’ll drop the cup of 

coffee. I can’t really hold on to anything for a long, long amount of time.” (R. at 47-48.) She 

stated that Nurse Practitioner Joel Rice and Dr. Kudalkar told her that she will likely have 

neuropathy for the rest of her life. (R. at 48-49.) When asked what her biggest problem was, 

Plaintiff testified, “diarrhea, and the numbness, and pain.” (R. at 54.) 

 The VE also testified at the hearing. When asked “when does being off task become 

work preclusive,” the VE responded that “a good benchmark is 10 percent, or greater . . .” (R. 

at 59-60.) 

IV. THE ADMINISTRATIVE DECISION 

 On August 18, 2017, the ALJ issued his decision. (R. at 15-26.) At step one of the 

sequential evaluation process,2

 the ALJ found that Plaintiff had not engaged in substantial 

 

2. Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

1. Is the claimant engaged in substantial gainful activity? 

2. Does the claimant suffer from one or more severe impairments? 

3. Do the claimant’s severe impairments, alone or in combination, meet or equal 

the criteria of an impairment set forth in the Commissioner's Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 
8 

gainful activity since June 3, 2014, the alleged onset date. (Id. at 17.) At step two, the ALJ 

found that Plaintiff had the severe impairments of sigmoid carcinoma with secondary colonic 

obstruction; stage 2 colonic adenocarcinoma; chronic obstructive pulmonary disease (“COPD”); 

major depressive disorder; and mild alcohol use disorder. (Id. at 17-18.) The ALJ further 

found that Plaintiff’s headaches, neuropathy, and hypertension were non-severe, “as they cause 

only minimal or less than minimal limitation in the claimant’s ability to perform basic work 

activities.” (Id.at 18.) The ALJ did not discuss whether Plaintiff’s diarrhea constitutes a severe 

impairment. (R. at 17-18.) 

At step three of the sequential process, the ALJ found that Plaintiff did not have an 

impairment or combination of impairments that met or medically equaled one of the listed 

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 18-19.) At step 

four, the ALJ set forth Plaintiff’s RFC as follows: 

After careful consideration of the entire record, the undersigned finds that the 

claimant has the residual functional capacity to perform light work as defined in 20 

CFR 404.1567(b) and 416.967(b) except that the claimant can occasionally climb 

ladders, ropes or scaffolds but can frequently climb ramps and stairs; and frequently 

stoop, kneel, crouch, and crawl but no balancing on beams. The claimant must 

avoid workplace hazards, including unprotected heights and moving mechanical 

parts. The claimant can have occasional exposure to humidity; pulmonary 

irritants, including dust, odors, and fumes; extreme cold; extreme heat; and 

vibration. The claimant is limited to a static work environment in which change is 

infrequent. The claimant requires work with no strict production demands or time 

 

4. Considering the claimant’s residual functional capacity, can the claimant 

perform his or her past relevant work? 

5. Considering the claimant’s age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the 

national economy? 

See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 
9 

constraints. 

(R. at 19.) In assessing Plaintiff’s physical RFC, the ALJ assigned “significant” weight to the 

state-agency reviewing physician’s opinion that Plaintiff could perform light work with postural 

and environmental limitations. (R. at 23.) He assigned “little weight” to the opinions of 

treating nurse practitioner Joel Rice, and “little” weight to the opinions of treating physicians 

Drs. Rupert and Kudalkar. (R. at 23-24.) The ALJ also considered Plaintiff’s testimony 

concerning her alleged symptoms and found that her statements “concerning the intensity, 

persistence and limiting effects of these symptoms [we]re not entirely consistent with the 

medical evidence and other evidence in the record . . . .” (R. at 22.) 

 Relying on the VE’s testimony, the ALJ found that Plaintiff can perform jobs that exist in 

significant numbers in the national economy. (R. at 25.) He therefore concluded that Plaintiff 

was not disabled under the Social Security Act. (Id. at 26.) 

V. STANDARD OF REVIEW 

 When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. 

§ 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial 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, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 
10 

1994)). 

Although the substantial evidence standard is deferential, it is not trivial. The Court 

must “‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley 

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 

270, 273 (6th Cir. 1997)). 

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision 

of the Commissioner will not be upheld where the SSA fails to follow its own regulations and 

where that error prejudices a claimant on the merits or deprives the claimant of a substantial 

right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 

(6th Cir. 2007)). 

VI. ANALYSIS 

For her first contention of error, Plaintiff asserts that the ALJ’s decision is not supported 

by substantial evidence because it does not adequately consider or accommodate her diarrhea 

and neuropathy. (Pl.’s Statement of Errors at 5, ECF No. 11.) Plaintiff asserts that the ALJ’s 

RFC finding is not supported by substantial evidence because the ALJ “completely disregarded 

[Plaintiff’s] frequent diarrhea and bathroom breaks,” and instead concluded that “the record 

notes little to no complaints related to diarrhea.” (Pl.’s Statement of Errors at 6, ECF No. 11.) 

Plaintiff further asserts that her need to use the restroom frequently due to diarrhea is amply 
11 

supported by the record, and that the ALJ was therefore required to make a finding regarding 

whether she needed additional or unscheduled bathroom breaks. (Id. at 8.) The Commissioner 

counters that the ALJ reasonably omitted limitations regarding additional restroom breaks 

because no medical source indicated that Plaintiff needed additional restroom breaks. (Def.’s 

Mem. in Opp. at 7, ECF No. 16.) The Commissioner also asserts that several medical records 

stated that diarrhea was “not present” and/or that Plaintiff was constipated. (Id.) 

Plaintiff next contends that the ALJ erred in considering her neuropathy, as he improperly 

stated that it improved with medication. (Pl.’s Statement of Errors at 14, ECF No. 11.) She 

further argues that the medical records support a finding that her neuropathy was severe. (Id. at 

15-16.) Although the Commissioner acknowledges that the ALJ erred in finding that Plaintiff’s 

neuropathy improved with medication, he contends that the ALJ’s findings are nonetheless 

supported by substantial evidence because her neuropathy was continually noted to be mild. 

(Def.’s Mem. in Opp. at 8-9, ECF No. 16.) 

For the reasons that follow, the undersigned finds that the ALJ committed a number of 

errors in his consideration of the evidence related to Plaintiff’s diarrhea and neuropathy such that 

the Court cannot conclude that substantial evidence supports his RFC formulation and 

nondisability finding. Accordingly, remand is required.3 

A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and 

mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 

149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of 

RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d). 

 

3 This finding obviates the need to analyze and resolve Plaintiff’s remaining contentions of error. 
12 

Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v. 

Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010). When 

considering the medical evidence and calculating the RFC, “‘ALJs must not succumb to the 

temptation to play doctor and make their own independent medical findings.’” Simpson v. 

Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d 

966, 970 (7th Cir. 1996)); see also Isaacs v. Astrue, No. 1:08–CV–00828, 2009 WL 3672060, at 

*10 (S.D. Ohio Nov. 4, 2009) (holding that an “ALJ may not interpret raw medical data in 

functional terms”) (internal quotations omitted). An ALJ, however, “does not improperly 

assume the role of a medical expert by weighing the medical and non-medical evidence before 

rendering an RFC finding.” Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 

2010). 

An ALJ is required to explain how the evidence supports the limitations that he or she set 

forth in the claimant’s RFC: 

The RFC assessment must include a narrative discussion describing how the 

evidence supports each conclusion, citing specific medical facts (e.g., laboratory 

findings) and nonmedical evidence (e.g., daily activities, observations). In 

assessing RFC, the adjudicator must discuss the individual’s ability to perform 

sustained work activities in an ordinary work setting on a regular and continuing 

basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and 

describe the maximum amount of each work-related activity the individual can 

perform based on the evidence available in the case record. The adjudicator must 

also explain how any material inconsistencies or ambiguities in the evidence in the 

case record were considered and resolved. 

S.S.R. 96–8p, 1996 WL 374184, at *6–7 (internal footnote omitted). 

Here, the ALJ discounted Plaintiff’s allegations regarding her diarrhea and neuropathy, 

finding that her “medically determinable impairments could reasonably be expected to cause the 

alleged symptoms, however, [the Plaintiff’s] statements concerning the intensity, persistence and 
13 

limiting effects of these symptoms are not entirely consistent with the medical evidence and 

other evidence in the record . . .” (R. at 22.) The ALJ explained his decision as follows: 

As for course of treatment, the claimant testified that she has numbness in her hands 

and feet from the neuropathy (Hearing Testimony). The record shows that the 

claimant suffered only from mild neuropathy, which improved with medication 

(Exhibits 14F/5-11, 15F/53, 57-59). 

* * * 

The record shows as well that the claimant had no real complaints related to her 

legs other than some neuropathy, which was found to be mild (Exhibits 14F/5-11, 

15F/53, 57-59). The claimant then stated that she suffers from diarrhea and comes 

close to having accidents (Hearing Testimony). The record notes little to no 

complaints related to diarrhea. The claimant just indicated in November 2015, 

December 2015, and February 2017 that she had some diarrhea (Exhibits 14F/5-12, 

18). The claimant otherwise had no complaints and had even complained of 

constipation on occasion (Exhibits 1F/16-20, 31, 8F/8-11, 10F/4-7, 14F/5-11). 

(R. at 23.) 

The undersigned finds that the ALJ committed a number of errors in his consideration of 

Plaintiff’s diarrhea4

 and neuropathy such that the Court cannot conclude that substantial 

evidence supports his RFC formulation and nondisability finding. More specifically, the ALJ 

misstated some important evidence, misunderstood the importance of certain evidence, and 

improperly failed to consider other evidence. 

First, the ALJ erroneously concluded that the record “notes little to no complaints related 

to diarrhea,” and that other than in November 2015, December 2015, and February 2017, 

Plaintiff had no complaints of diarrhea. (R. at 23.) This finding is belied by the treating 

records, which are replete with notations regarding diarrhea. For example, on June 5, 2014, Dr. 

 

4 The undersigned notes that the ALJ did not analyze whether Plaintiff’s diarrhea was a severe 

impairment at step two. Instead, the ALJ appears to consider Plaintiff’s diarrhea as a symptom 

of her colon cancer. 
14 

William Stevenson noted that Plaintiff had a “history of two months of loose stools moving her 

bowels approximately 10 to 15 times per day.” (R. at 804.) On October 15, 2014, Plaintiff’s 

oncologist, Dr. Robert Rupert, noted that Plaintiff had mild diarrhea. (R. at 813.) On April 

14, 2015, Plaintiff reported diarrhea and rectal urgency to her radiation oncologist, Dr. William 

Wilson. (R. at 753.) Plaintiff continued to complain of diarrhea after she completed radiation. 

On June 3, 2015, Dr. Wilson noted that Plaintiff was “still stooling approximately 3 times per 

day . . .” (R. at 747.) Records dated July 24, 2015, from Fayette County Memorial Hospital 

Emergency Department, indicate that Plaintiff has diarrhea x “1 yr.” (R. at 665.) On August 

13, 2015, Dr. Rupert again noted that Plaintiff “does have some loose stools.” (R. at 807.) On 

August 17, 2015, nurse practitioner Joel Rice noted that Plaintiff is “[s]till having daily 

diarrhea.” (R. at 704, 705.) On September 8, 2015, Dr. Allan Peck noted that Plaintiff had 

diarrhea and stated that Plaintiff “will have Imodium since she has less rectum and that probably 

is causing some of her issues.” (R. at 818.) In September 2015, CNP Rice again noted that 

Plaintiff had diarrhea. (R. at 699, 702.) On November 16, 2015, Dr. Wilson noted that 

Plaintiff “continues with frequent stools,” that she has diarrhea, and that she “continues with over 

the counter antidiarrheals.” (R. at 737-40.) On December 16, 2015, Plaintiff was noted to have 

diarrhea. (R. at 685.) On December 28, 2015, oncologist Jeffrey VanDeusen, M.D., treated 

Plaintiff and noted that she had “diarrhea intermixed with constipation” and intermittent 

abdominal discomfort and bloating. (R. at 730.) Dr. VanDeusen stated “we will try some 

linens5

. . . to see if we can calm her gut and improve her bowels.” (R. at 735.) Dr. Kudalkar’s 

 

5 It appears that Dr. VanDeusen meant “Linzess,” which is a “prescription medication used in 

adults to treat irritable bowel syndrome with constipation.” Linzess, What is LINZESS, 

https://www.linzess.com. 
15 

treatment notes from January 13, 2017, list Plaintiff’s current prescriptions, which included 

“Incontinence Supply Disposable (DEPEND ADJUSTABLE UNDERWEAR LG) MISC,” and 

“linaclotide (LINZESS).” (R. at 847-48.) On February 23, 2017, Dr. Kudalkar noted that 

Plaintiff is feeling “fair” and that she has “continued loose stools every day, ever since her 

surgery 2 years ago.” (R. at 871.) He assessed Plaintiff with diarrhea and again noted that she 

has persistent loose stools that have been “ongoing for some time.” (Id.) On March 9, 2017, 

Dr. Kudalkar stated that Plaintiff “has diarrhea 4-5 episodes / day [and] occasional incontinence 

which is thought to be related to her colon surgery.” (R. at 884.) Further, Plaintiff testified that 

she has diarrhea consistently, cannot hold her bowls, does not know when diarrhea is going to 

hit, and that she has had accidents. (R. at 42, 46.) Based on the foregoing, it is evident that the 

ALJ failed to consider portions of the record and/or mischaracterized the significance of 

evidence related to Plaintiff’s diarrhea in determining that “[t]he record notes little to no 

complaints related to diarrhea.” (R. at 23.) The ALJ’s erroneous factual findings in this regard 

infect his consideration of Plaintiff’s functionality such that the undersigned cannot conclude that 

the RFC is supported by substantial evidence. 

The Commissioner’s arguments to the contrary are unavailing. First, the fact that 

Plaintiff complained of constipation on various occasions does not detract from her allegations 

regarding diarrhea. Indeed, an individual suffering from a bowel disorder often suffers from 

both constipation and diarrhea. See Hubbard v. Comm’r of Soc. Sec., No. 11-11140, 2012 WL 

883612, at *6 (E.D. Mich. Feb. 27, 2012), report and recommendation adopted, No. 11-11140, 

2012 WL 858636 (E.D. Mich. Mar. 14, 2012) (explaining that “one suffering from functional 

bowel disorder, like plaintiff, commonly suffers from both constipation and diarrhea.” (citing 
16 

University of Michigan Health System, What Are Functional Bowel Disorders?

http://www.med.umich.edu/fbd/).) Further, Dr. VanDuesen’s treatment notes indicate that 

Plaintiff suffered from “diarrhea intermixed with constipation.” (R. at 730.) 

Second, the fact that several treatment records state that diarrhea was “not present” does 

not absolve the ALJ’s error. Although an ALJ need not discuss “every piece of evidence 

submitted by a party” or “make explicit credibility findings as to each bit of conflicting 

testimony,” his factual findings as a whole must “show that he implicitly resolved such 

conflicts.” Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (citations 

and internal quotation marks omitted). As set forth above, here, the undersigned cannot 

conclude that the ALJ considered all of the evidence and resolved any conflicts. Thus, even if 

the record contains substantial evidence supporting the ALJ’s RFC assessment, the undersigned 

is unable to discern how the errors outlined above may have influenced the ALJ’s RFC 

calculation. The undersigned is therefore convinced that the ALJ’s errors in analyzing the 

record evidence may not have been harmless and that this matter should be remanded for further 

consideration. See Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 499-500 (6th Cir. 2014) (errors 

in the ALJ’s characterization of evidence on which non-disability finding is based warrant 

remand). 

Third, the Commissioner’s contention that Plaintiff was required to submit a medical 

source statement imposing restroom breaks is likewise unavailing. The ALJ is ultimately 

charged with evaluating the medical evidence and determining a claimant’s RFC. See 20 C.F.R. 

§§ 404.1527(d), 416.927(d). Given the numerous medical records substantiating Plaintiff’s 

allegations of diarrhea, the ALJ should have at least considered whether Plaintiff would require 
17 

additional and/or unscheduled bathroom breaks beyond those normally permitted by an 

employer. See Sherrill v. Comm’r of Soc. Sec., No. 1:13-CV-276, 2014 WL 1338114, at *6–7 

(S.D. Ohio Apr. 2, 2014), report and recommendation adopted, No. 1:13CV276, 2014 WL 

1672926 (S.D. Ohio Apr. 28, 2014) (recommending reversal and remand “with instructions to 

the ALJ to determine the frequency and duration of plaintiff’s required bathroom breaks and the 

practical work-day limitations resulting therefrom in formulating plaintiff’s RFC,” and to 

“account for all the medical and testimonial evidence regarding plaintiff’s urinary incontinence 

impairments, including the objective findings from plaintiff’s urologist, when reformulating 

plaintiff’s RFC”); see also Hubbard, 2012 WL 883612, at *7 (finding “that where a social 

security claimant has an impairment that requires ‘ready access to bathroom’ and the freedom to 

use it ‘as needed,’ an ALJ should ‘make a specific finding concerning the frequency and duration 

of [the claimant’s] bathroom usage as part of the RFC.’”) (citations omitted). Moreover, here, 

Dr. Kudalkar submitted a medical source opinion that discussed Plaintiff’s ongoing diarrhea, 

and specifically stated that his opinion was supported, in part, by the fact that Plaintiff “has 

diarrhea 4-5 episodes / day [and] occasional incontinence which is thought to be related to her 

colon surgery.” (R. at 884.) Thus, although Dr. Kudalkar did not provide specific limitations 

regarding restroom breaks, he affirmatively stated that Plaintiff was limited by diarrhea and 

occasional incontinence. See Hubbard, 2012 WL 883612, at *7 (remanding for the ALJ to 

consider whether plaintiff would require unscheduled bathroom breaks and whether those breaks 

would be work preclusive despite the fact that the treating physician’s opinion offered “was quite 

non-specific about what functional limitations and restrictions plaintiff might have as a result of 

his diarrhea”). 
18 

Additionally, the ALJ ignored and/or mischaracterized evidence related to Plaintiff’s 

neuropathy. Plaintiff testified that she has numbness in her hands, which affects her ability to 

hold onto things. (R. at 47-48.) In discounting Plaintiff’s allegations, the ALJ stated that “[t]he 

record shows that the claimant suffered from only mild neuropathy, which improved with 

medication (Exhibits 14F5-11, 15F/53, 57-59).” (R. at 23.) This statement lacks record 

support. Rather, on December 28, 2015, Dr. VanDeusen specifically stated that Plaintiff 

“continues to suffer from chemotherapy-induced peripheral neuropathy from her oxaliplatin. 

She has been placed on Lyrica and venlafaxine without much benefit.” (R. at 730 (emphasis 

added).) The ALJ also appears to have mischaracterized or ignored evidence when considering 

Dr. Kudalkar’s opinions regarding Plaintiff’s neuropathy. For example, Dr. Kudalkar opined 

that Plaintiff has limitations in fine manipulation and feeling due to her peripheral neuropathy. 

(R. at 884-86.) The ALJ assessed “little” weight to Dr. Kudalkar’s opinion, finding that “there 

is nothing to support any manipulative restrictions, as the record does not mention any hand 

issues.” (R. at 24.) This statement lacks record support. Indeed, the record contains Plaintiff’s 

testimony regarding neuropathy/numbness in her hands (R. at 47-48), multiple references to 

neuropathy in her treatment records (see, e.g., R. at 813, 811, 626, 730, 884), and Dr. Kudalkar’s 

opinion that Plaintiff would be limited in fine manipulation due to her neuropathy (R. at 886). 

Although evidence in the record may support the ALJ’s finding that Plaintiff’s neuropathy is 

mild and does not cause any functional limitations, the above errors infect the ALJ’s analysis 

such that the undersigned cannot conclude that the RFC is supported by substantial evidence. 

In sum, in weighing the evidence to formulate Plaintiff’s RFC, the ALJ failed to consider 

portions of the record and misunderstood or mischaracterized the significance of other evidence 
19 

in the record. Remand is therefore appropriate. 

VII. DISPOSITION 

Due to the errors outlined above, Plaintiff is entitled to an order remanding this case to 

the Social Security Administration pursuant to Sentence Four of 42 U.S.C. § 405(g). The 

undersigned therefore RECOMMENDS that the Court REVERSE the Commissioner of Social 

Security’s non-disability finding and REMAND this case to the Commissioner and the ALJ 

under Sentence Four of § 405(g) for further consideration consistent with this Report and 

Recommendation. 

VIII. 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 findings or recommendations to which objection is made, together with 

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

determination of those portions of the Report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a 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). 

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 
20 

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

 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE