Emery v. Bisignano

Background

Plaintiff Shawna D. E., age 35, applied for supplemental security income (SSI) — a federal disability benefit — on November 17, 2020, alleging disability beginning October 1, 1997. Her alleged severe impairments included chronic gastritis with bleeding, chronic diarrhea, low body mass index (BMI), postural orthostatic tachycardia syndrome (POTS), migraine headaches, scoliosis, depression with anxiety, panic disorder, and attention deficit hyperactivity disorder (ADHD). The Social Security Administration denied her application initially and on reconsideration. ALJ Corey Ayling held hearings in April and June 2022 and issued an unfavorable decision on August 30, 2022.

Plaintiff sought federal court review. In a prior case (No. 23-cv-0210), the court remanded the matter, finding the ALJ had made no reviewable finding on off-task time and absenteeism resulting from her migraines and gastrointestinal conditions. On remand, ALJ Ayling held additional hearings on September 25, 2024, and February 28, 2025. On April 15, 2025, the ALJ again found Plaintiff not disabled. Plaintiff filed the present complaint on July 10, 2025, seeking reversal and an award of benefits, or alternatively, another remand.

The ALJ's Sequential Five-Step Analysis

The ALJ applied the standard five-step sequential evaluation used in Social Security disability cases under 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4):

- Step One: Plaintiff had not engaged in substantial gainful activity since her November 17, 2020 application date. - Step Two: The ALJ found the following severe impairments: chronic gastritis and chronic diarrhea, low BMI, POTS, scoliosis of the cervical spine, migraine headaches, mild intermittent asthma, and a range of mental health conditions including depression with anxiety, depressive disorder with anxious distress, major depressive disorder, bipolar disorder, panic disorder, ADHD, borderline intellectual functioning, neurodevelopmental disorder, fetal alcohol syndrome effects, and PTSD. - Step Three: The ALJ found that no impairment or combination of impairments met or equaled a listed impairment under the Social Security regulations. - RFC Assessment (before Step Four): The ALJ determined that Plaintiff had the residual functional capacity (RFC) — meaning the most she can still do despite her limitations — to perform light work with significant restrictions, including a four-hour on-feet limit per eight-hour workday, six hours of sitting, lifting limits, postural and environmental limitations, and restrictions to simple work with only occasional, superficial contact with others. The ALJ explicitly declined to include any migraine-specific provisions such as noise restrictions, screen-time limits, off-task allowances, or absenteeism allowances. - Step Four: The ALJ found Plaintiff had no past relevant work. - Step Five: Relying on vocational expert Kevin Yi's testimony, the ALJ found Plaintiff could perform three sedentary, unskilled jobs existing in the national economy: final assembler, laboratory tester, and electronics inspector. The ALJ therefore found Plaintiff not disabled.

Key Testimony and Evidence

Medical Expert Dr. Kweli Amusa, M.D. reviewed the full record and testified at the September 2024 hearing. She identified several severe physical impairments but testified that she could not establish the frequency or severity of Plaintiff's headaches based on the evidence. She opined that the record did not show evidence of active treatment for Plaintiff's low BMI. The ALJ found Dr. Amusa's testimony persuasive, particularly her conclusion that the record did not support off-task or absenteeism provisions for gastrointestinal issues or migraines.

Vocational Expert Kevin Yi testified that employer tolerance for absenteeism was no more than two days per month, and off-task tolerance was no more than 10% of work time. He further testified that requiring one extra bathroom break per week of 10 to 30 minutes would preclude competitive employment, and that an employer generally would not tolerate absenteeism during a 30-day probationary period, with perhaps a single absence excused. He also testified that requiring written instructions beyond a probationary or on-the-job training period would be inconsistent with competitive employment.

Plaintiff's testimony described daily migraine symptoms, with her most severe migraines (causing vision loss or vomiting) occurring approximately twice per month. She testified to urgent and frequent bathroom needs — averaging every four hours, with each visit lasting 20 to 30 minutes — and reported having bowel incontinence when unable to reach a bathroom. She estimated she was absent approximately half of her scheduled shifts at her current part-time job at the Itasca County Historical Society, a position she described as having been specially accommodated.

A post-hearing questionnaire from Plaintiff's career counselor Jennifer Frimanslund indicated that Plaintiff requires additional assistance, fewer or easier duties, a special employer relationship, and accommodations including extra breaks, fewer hours, extra time, and tolerance for absenteeism.

The ALJ found unpersuasive the boilerplate medical form submitted by Plaintiff's primary care provider, Dr. Philip Imholte, who checked a box indicating Plaintiff could only work 10 to 19 hours per week, finding it unexplained and inconsistent with the overall evidence.

Plaintiff's Three Arguments and the Court's Rulings

Argument 1: Failure to Identify All Severe Impairments at Step Two

Plaintiff argued the ALJ failed to classify chronic neck pain, cervical radiculopathy, acute trauma to the cervical spine, chronic thoracic and lumbar back pain, thoracic myofascial strain, and insomnia as severe impairments, which she claimed would have led to additional RFC restrictions.

The court acknowledged that the Eighth Circuit Court of Appeals (the federal appellate court with jurisdiction over this district) has not expressly ruled on whether a Step Two error alone requires reversal, but noted that most recent district court decisions treat such an error as harmless so long as the ALJ adequately considers the effects of those conditions at later steps in the analysis. The court found the ALJ had expressly or implicitly considered all of these conditions — including neck pain in connection with scoliosis and migraines, and insomnia as part of the mental health analysis — and that Plaintiff did not identify any additional functional limitations that these conditions warranted. The court found no reversible error at Step Two.

Argument 2: RFC Does Not Reflect All Limitations

Plaintiff argued the RFC failed to account for her need for frequent unscheduled bathroom breaks, the accommodated nature of her current employment, and migraine-related absenteeism.

The court found that the relevant legal question is not whether Plaintiff actually takes extra breaks or misses shifts, but whether her medically determinable impairments require her to do so. The court found that substantial evidence supported the ALJ's conclusion that they did not. The ALJ had cited medical records showing largely normal abdominal examinations, CT scans without significant abnormalities, scattered and inconsistent gastrointestinal complaints primarily documented in mental health records, a resolved episode of diarrhea in January 2024, and improvement with treatment. As to migraines, the ALJ cited records characterizing them as non-intractable and without status migrainosus (a severe, prolonged migraine state), and noted their relegation to the "past medical history" section of more recent treatment notes. The court concluded that Plaintiff failed to meet her burden of proving her impairments required off-task or off-work limitations or accommodations.

Argument 3: Failure to Address Ability to Complete a Probationary Period

Plaintiff argued, citing the Second Circuit Court of Appeals' decision in Sczepanski v. Saul, 946 F.3d 152 (2d Cir. 2020), that the ALJ erred by not addressing whether she could complete a standard probationary employment period given her absenteeism and cognitive limitations.

The court distinguished Sczepanski, where the ALJ had expressly found probationary periods irrelevant to disability determinations. Here, the ALJ made no such ruling and instead implicitly addressed the probationary-period issue by finding that no off-task or absenteeism limitations were supported by the record — a finding that necessarily encompasses a probationary period. The court also found that the ALJ's assessment of Plaintiff's cognitive abilities (based on neuropsychological testing showing low-average intellectual ability, normal mental status examinations, and her ability to carry out daily activities) provided substantial evidence that she would not require written instructions beyond what is standard, even during a probationary period. The court declined to reverse or remand on this basis.

Disposition

Judge Nelson denied the relief sought in Plaintiff's brief (remand or reversal), granted the Commissioner's request to affirm the agency's decision, and dismissed Plaintiff's complaint with prejudice.