Opinion
Civil Action No. 5:19-0583-BHH-KDW
04-10-2020
Makenzie Parker Simpson, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Supplemental Security Income ("SSI") pursuant to the Social Security Act ("the Act"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action as discussed below. I. Relevant Background
Andrew M. Saul became Commissioner of Social Security in June 2019. Commissioner Saul is hereby substituted for the former Acting Commissioner, Nancy A. Berryhill, as the named defendant in this action. See 42 U.S.C. § 405(g), Fed. R. Civ. P. 25(d).
A. Procedural History
On April 30, 2015, Plaintiff protectively filed for SSI under Title XVI of the Act, alleging she became disabled on January 10, 2015. Tr. 175-83. After being denied initially, Tr. 70, and upon reconsideration, Tr. 89, Plaintiff requested a hearing before an administrative law judge ("ALJ"), Tr. 116-17. ALJ Nicholas Walter, conducted a hearing on December 19, 2017, taking testimony from Plaintiff and Vocational Expert ("VE") Carey Washington. Tr. 37-69. Representing Plaintiff at that hearing was her attorney, Timothy Clardy. Tr. 37. At the administrative hearing Plaintiff verified that she wished to amend her alleged onset date to May 1, 2017. Tr. 41, 212. The ALJ denied Plaintiff's claim in a decision dated May 31, 2018. Tr. 14-31. Plaintiff requested review of this decision from the Appeals Council. Tr. 172-73. After granting Plaintiff an extension, Tr. 9-10, the Appeals Council denied the request for review on February 8, 2019, making the ALJ's May 31, 2018 decision the Commissioner's final decision for purposes of judicial review, Tr. 1-5. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed February 27, 2019. ECF No. 1.
Although the Application Summary is dated August 5, 2015, the Disability Determination and Transmittal indicates the filing date was April 30, 2015. Tr. 70.
B. Plaintiff's Background
Plaintiff was born in October 1978 and was 38 years old as of her amended alleged onset date of May 1, 2017. Tr. 214. In her August 2015 form Disability Report-Adult Plaintiff indicated that she completed the 12th grade, did not attend special education classes, and completed specialized job training at beautician school in June 1999. Tr. 219. Plaintiff identified her past relevant work ("PRW") as working in various hair salons including Hair Masters (Oct. 1999-June 2002), Main Street Designs (Nov. 2002-April 2010), and Great Clips (May 2014-April 2015). Tr. 220. She also noted that she conducted telephone surveys for Sparks Research (Aug. 2013-Jan. 2014). Id. Plaintiff indicated she stopped working on April 12, 2015 due to her conditions of panic attacks, severe migraines with loss of vision, depression, arthritis, lupus, rheumatoid arthritis, fibromyalgia, pineal cyst on the brain, anxiety, stomach ulcer, cyst on ovaries, cellulitis on legs. Tr. 218.
A Disability Report-Appeal dated December 3, 2015 and completed by Plaintiff's appointed representative, indicated changes in her medical conditions that occurred in the summer of 2015. Tr. 265. The changes are described as follows:
Complete loss of vision for 2-3 times per day for 2 hours each occurrence has worsened. Migraine headaches are more frequent and severe. Pain and limitation
of motion in multiple joints due to rheumatoid arthritis have worsened. Diffuse joint and muscle pain due to lupus and fibromyalgia have worsened. Nausea and vomiting due to GI ulcers are more frequent and severe. Constantly fatigued due to chronic fatigue syndrome. Anxiety with panic attacks has worsened.Id. The report also indicated changes in Plaintiff's daily activities due to her conditions as:
Cannot bend or stoop. Can sit, stand or walk only briefly. Completely blind for 2 hour period 2-3 times per day. Cannot lift more than a few pounds. Cannot grip or grasp with hands. Cannot kneel, crouch or crawl. Cannot climb stairs, ramps, ladders, ropes or scaffolds. Must have constant supervision during daily loss of vision attacks. Cannot prepare meals, shop for groceries or help keep up house or yard for self. Cannot focus or concentrate due to anxiety and panic attacks. Spends most of each day resting or laying down due to loss of vision, chronic fatigue and effects of medications.Tr. 271. In a subsequent Disability Report-Appeal dated April 5, 2016, Plaintiff's representative indicated a worsening of Plaintiff's conditions occurring in the winter of 2016. Tr. 277.
C. Administrative Proceedings
On December 19, 2017, Plaintiff appeared with counsel at an administrative hearing in Greenville, South Carolina and testified regarding her application for SSI. Tr. 37-69. VE Washington also appeared and testified at the hearing. Id. At the hearing Plaintiff confirmed that she was amending her alleged onset date to May 1, 2017. Tr. 41-42, 212.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff confirmed that her birthdate was in October 1978, and she testified she was 5'5" tall and weighed 180 pounds. Tr. 43. Plaintiff testified that she lived in an apartment with her 13-year-old daughter, she had a driver's license and drives, and she graduated from high school and completed additional training as a licensed cosmetologist. Tr. 44. Plaintiff testified that in 2005, 2006, and 2008, she was self-employed as a cosmetologist, and from April 2015 through September 2017 she worked as a cosmetologist for Great Clips. Tr. 45-46. Plaintiff testified that she stopped working for Great Clips because of the "pain [she] was suffering, like the arthritis had just gotten worse and the migraines [she] was having had not ended with the vision loss, and it's made it more and more difficult to work." Tr. 46. Plaintiff indicated that she had not done any work for pay since she last worked for Great Clips. Id.
The ALJ asked Plaintiff to list the conditions she felt prevented her from working. Tr. 47. Plaintiff identified the following: migraines with vision loss, fibromyalgia, and rheumatoid arthritis. Id. Plaintiff also noted that she had a heart attack in June and had to have a stent inserted, and in September she had another heart catheterization. Id. Plaintiff testified that results from the September catheterization were fine, but because of her shortness of breath her cardiologist referred her to a pulmonologist, and she is being tested. Tr. 48. Plaintiff confirmed that she still smokes cigarettes, but instead of over a pack a day, she has "now cut back to like half a pack a day." Id. Regarding her migraines, Plaintiff testified that she has had migraines since she was 12 years old, but they have gotten worse. Id. Plaintiff stated that she was having vision loss without having migraines and doctors found a pineal cyst that was causing the vision loss. Id. Plaintiff testified the vision loss, which she is still experiencing, started in 2015. Tr. 49. Plaintiff stated that she has migraines "two to three times a week" that "can last anywhere from three to four hours." Id. Plaintiff stated that in 2015 when the vision loss started her migraines became more frequent. Id. Plaintiff testified that when she has vision loss it usually lasts "anywhere from one to two hours, sometimes a little bit longer, depending on if it's a full blown migraine." Id. Plaintiff stated that there did not seem to be any specific triggers for her migraines other than "maybe just . . . stress." Tr. 50. Plaintiff testified that when she gets migraines she gets "really sick and [she does] have the vision loss, but [she has] to lay down and be like in the dark, cold, dark room with no noise. And [she's] super sensitive to like lights and smells and everything, and it usually does come with vomiting, so there's no way." Id.
Plaintiff testified that she has been dealing with fibromyalgia and rheumatoid arthritis for about three years. Tr. 50. Plaintiff stated it was in "all the joints, like [her] fingers and hands, [her] hips, [her] knees, [her] right foot, it's very painful and . . . sometimes [she has] swelling." Id. Plaintiff testified that she could be on her feet standing or walking "anywhere from five to ten minutes" before needing to sit down. Tr. 51. Plaintiff stated that her standing and walking limitations started getting worse in April of 2017; prior to that she could stand or walk for 20-25 minutes and then she "would have to like sit down and take a break between clients when [she] was working." Id. Plaintiff testified that she had trouble sitting comfortably in a regular chair because of arthritis in her right hip that affected her right hip and right leg. Id. Plaintiff testified that she could sit for 20-25 minutes and after that her right foot would start going numb and tingling. Tr. 52. Plaintiff testified that her sitting limitations occurred in the past year. Plaintiff stated that she fractured her foot "years ago" and over the years of standing it had gotten worse. Id. Plaintiff testified that she could lift or carry around five pounds, and that limitation also had gotten worse since April 2017 when she realized her grip was not good because the joints in her hand hurt. Id. Plaintiff did not identify a precipitating event in April that caused her condition to worsen. Tr. 52-53. Plaintiff testified that during the May to September 2017 period, before she stopped working, she was working "maybe three to four days, but some days, it was only maybe like an hour or two." Tr. 53. Plaintiff testified that prior to May 2017 she was working what was considered full-time at Great Clips. Id. Regarding her issues with shortness of breath, Plaintiff stated that it sometimes came on when she felt like she was having anxiety or panic attacks. Id. She also stated that sometimes, when walking from her car to her house, she would get stressed and feel like her throat was closing up. Tr. 53-54. Plaintiff stated those were the same symptoms she was having when she had her heart attack so that was why doctors rechecked her stent. Tr. 54. Plaintiff testified that she has had "very bad anxiety and panic attacks" two to three times a week for the last three or four months. Tr. 54. The ALJ asked Plaintiff about the circumstances related to her separation from employment with Great Clips. Plaintiff stated that she went on medical leave in September to have the heart catheterization done, and the nerve in her arm was "messed up" so that was "just more than what [she] could deal with." Id. Plaintiff confirmed that she is no longer employed with Great Clips and she did not receive any type of short- or long-term disability. Tr. 55. Plaintiff testified that she would work if she was able. Id.
Plaintiff's attorney asked Plaintiff how she was able to work from 2015 to April 2017 with the frequency and severity of migraines to which she testified. Tr. 56. Plaintiff testified:
The girls I worked with were good to me and they would let me clock out and lay down in the back and turn the light off in the office and I would take the medicine and just lay back there and close the door and if I could - - couldn't get over the migraine, I would just usually get my mom to come pick me up, or my niece to come pick me up and take me home.Id. Plaintiff stated that Great Clips was a "walk-in" salon so there were no scheduled customers who would be waiting for her. Tr. 56-57. Plaintiff testified that currently she was taking Fioricet for her migraines; she had tried Topamax in the past, but it caused tingling in her hands, hair loss, and numbness in her lips so she stopped due to the side effects. Tr. 57. Plaintiff testified that she has seen two neurologists and one neurosurgeon. Id. Plaintiff stated that the pain from the fibromyalgia and rheumatoid arthritis "never stops." Id. She stated that she is being treated for that pain by Dr. Thiyaga at Spine and Pain Care. Tr. 57-58. Plaintiff testified that he provides her with oxycodone and gabapentin which she takes daily. Tr. 58. Plaintiff stated that at this point those medications "are not helping." Id. She testified that several months ago Dr. Thiyaga tried injections on her back, but they did not help. Id. Plaintiff stated that, in addition to pain, she attributes mental fog, the inability to remember things, and cloudy vision to her fibromyalgia. Id. Plaintiff also testified that she "stay[s] depressed" and loses track of her thoughts and words she needs to say. Tr. 59. Plaintiff stated she has "no energy." Id. She testified that she "stay[s] tired" but attributed that to not sleeping well. Id. Plaintiff stated that she sleeps for only an hour at a time before waking up from pain due to sleeping in one spot or from numbness in her hands. Id. She testified that during the day she is usually on the couch and alternates between sitting, standing and moving for a few minutes, and lying down. Tr. 60. Plaintiff testified that for the last two or three months she spends 80-90% of her day lying down. Id. Plaintiff testified she would have shortness of breath after taking 15-20 steps. Tr. 61. Plaintiff stated that she experiences bouts of crying six to seven times a day. Id. Plaintiff testified that her medications cause side effects of upset stomach with either diarrhea or constipation. Id. Plaintiff testified that she lives in fear of having another heart attack and that increases her anxiety level. Id.
2. VE Testimony
The ALJ asked the VE to classify Plaintiff's PRW at Great Clips. Tr. 62. The VE testified that the "work of a cosmetologist is listed in the Dictionary of Occupational Titles ["DOT"] as a lighter work activity, with an SVP of 6, and the DOT number is 332.271-010." Tr. 63. The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and the past job as he described with the following limitations:
Further assume the individual is limited in this first hypothetical to the light exertional level, frequent climbing of ramps and stairs, never climbing of ladders, ropes or scaffolds; frequent stooping, kneeling, crouching and crawling; frequent handling and fingering; no concentrated exposure to vibration, to loud noise, to fumes, dust, odors or other pulmonary irritants, or to hazards, such as unprotected heights or dangerous moving machinery.Id. The ALJ asked if the hypothetical individual could perform the past job as actually performed or as generally performed in the national economy. The VE testified that she "could not perform the work as actually performed based on the pulmonary irritants that is part of that work." Id. The ALJ asked if the hypothetical individual could perform any other work, without considering any type of transferable skills and the VE provided the following examples: ticket seller, light, unskilled, SVP of 2, DOT number 211.467-030, with 125,000 nationally; ticket taker, light, unskilled, SVP of 2, DOT number 344.667-010, with 125,000 jobs nationally; and office helper, light, unskilled, SVP of 2, DOT number 239.567-010, with approximately 100,000 jobs nationally. Tr. 64. The VE confirmed that his testimony was consistent with the DOT. Id.
For his second hypothetical the ALJ added the following limitations to his first hypothetical: "further limited to simple routine tasks; time off task would be accommodated by normal breaks; occasional interaction with the public and able to tolerate few changes in a routine work setting." Tr. 64. The ALJ assumed the individual would be precluded from the past work and he asked the VE if the hypothetical individual could perform any other work. Id. The VE stated that "with the additional factors, that would preclude the work of the ticket taker and the ticket seller" but the work of office helper would be available. Tr. 65. The VE identified other work that also would be available: shipping and receiving weigher, light, unskilled, SVP of 2, DOT number 222.387-074, with 150,000 jobs nationally; and sorter, light, unskilled, DOT number 361.687-014, with 125,000 jobs nationally. Id. The VE confirmed his testimony was consistent with the DOT. Id.
For his third hypothetical the ALJ asked if the individual could perform any past work or competitive employment with the following limitations: "the individual would have three absences a month; the individual would have 20% time off task in addition to normal breaks, or if the individual could not sit, stand and/or walk in some combination for eight hours, with the remaining time spent laying down[.]" Tr. 65-66. The VE testified that with those limitations the individual could not perform the jobs he indicated, any other previous work, or any other substantial work. Tr. 66. Plaintiff's attorney did not have any questions for the VE. Id. II. Discussion
A. The ALJ's Findings
In his May 31, 2018 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant has not engaged in substantial gainful activity since May 1, 2017, the amended alleged onset date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: fibromyalgia, myalgias, coronary artery disease, chronic obstructive pulmonary disease (COPD) and migraine headaches (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, I find that the claimant has the RFC to perform light work as defined in 20 CFR 416.967(b) except that she can frequently climb ramps/stairs and never climb ladders/ropes/scaffolds; can frequently stoop, kneel, crouch and crawl; can frequently perform handling and fingering; and can have no concentrated exposure to vibration, loud noise, fumes, dust, odors or other pulmonary irritants, or to hazards.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on October 4, 1978 and was 36 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).Tr. 19, 21, 23, 29-30.
8. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
9. Considering the claimant's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since May 1, 2017, the date the application was filed (20 CFR 416.920(g)).
The May 1, 2017 date is Plaintiff's amended alleged onset date, not the application filing date.
B. Legal Framework
1. The Commissioner's Determination-of-Disability Process
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," defined as:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the listed impairments, found at 20 C.F.R. Part 404, Subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 416.920(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146, n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 428 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 428 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C. Analysis
Plaintiff alleges that the ALJ did not consider the effect of her migraines on her ability to work. Pl.'s Br. 9, ECF No. 12. The Commissioner submits that substantial evidence supports the ALJ's residual functional capacity ("RFC") determination, the ALJ accounted for all of Plaintiff's credibly established limitations, and there is no evidence after the amended alleged onset date that supports allegations of disabling limitations from migraines. Def.'s Br. 6, ECF No. 14.
An RFC assessment is a determination of an individual's ability to perform sustained work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1. "RFC is not the least an individual can do despite his or her limitations or restrictions, but the most. Id. (emphasis in original). At the administrative hearing level the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. § 416.946(c). An ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 416.945(a)(3) and (4).
The Administration's policy interpretation on assessing an individual's RFC emphasizes that the "RFC assessment must first identify the individual'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 CFR § 416.945. Only after that may RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." SSR 96-8p, 1996 WL 374184, at *1. The functions identified in the cited regulations include physical abilities, mental abilities, and other abilities affected by impairments. 20 C.F.R. § 416.945(b)-(d).
Here, at Step Two of the sequential evaluation process, the ALJ identified Plaintiff's severe impairments and included migraine headaches as one of her severe impairments. Tr. 19. In considering whether any of Plaintiff's impairments or combination of impairments met a Listing, the ALJ specifically discussed Plaintiff's migraine headaches as follows:
There is no associated listing for migraine headaches. I have considered the impairment in combination with the co-existing impairments in making the above finding. I have considered the effects of migraine headaches by finding them to be a medically determinable severe impairment, in finding that none of the impairments, singly or in combination, meets or medically equals listing severity and by fully considering the effects of migraine headaches in assessing the claimant's RFC in accordance with the regulations.Tr. 23. The ALJ determined that Plaintiff "has the RFC to perform light work as defined in 20 CFR 416.967(b)" with additional postural and environmental limitations. Tr. 23. The ALJ noted that in making his RFC assessment he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence based on the requirements of 20 CFR 416.929 and SSR 16-3p." Id. The ALJ also indicated that he considered opinion evidence in accordance with the regulations. Id. The ALJ first addressed Plaintiff's "reported symptoms of difficulty with standing, walking and sitting[.]" Tr. 24. The ALJ then noted that "[c]ontinuing the RFC assessment on a function-by-function basis, [he found] that due to a combination of impairments, the claimant has additional nonexertional postural, manipulative and environmental limitations. In formulating the RFC, the effects of treatment, including limitations or restrictions imposed by the mechanics of treatment, pain, fatigue and medication side effects have been considered." Id. The ALJ outlined the objective medical evidence, including records from 2015 and 2017 that related specifically to Plaintiff's migraine headaches. Tr. 24-26. The ALJ stated that in terms of Plaintiff's alleged symptoms, he "evaluated each allegation in light of the objective medical evidence and other evidence regarding the relevant factors listed in the symptoms regulations." Tr. 27.
The regulation defines light work as work that "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. § 416.967(b).
The ALJ discussed Plaintiff's testimony from the administrative hearing and noted that Plaintiff testified she stopped working in September 2017 "because arthritis and pain worsened and because of migraines and vision loss." Tr. 27. He also recounted that Plaintiff has had migraines since age 12 that have progressively worsened. Tr. 28. The ALJ noted the following from Plaintiff's testimony:
She has bad migraines two or three times a week, lasting three or four hours. She has had two or three a week since February 2015. Vision loss lasts one or two hours depending upon whether it is a full-blown migraine. There were no specific triggers other than maybe stress. With migraines she gets sick and has vision loss. She has to lie down in a cold, dark room with no noise. She is sensitive to light and smells.Id. The ALJ noted that Plaintiff "worked above the SGA level when she was having multiple problems from 2015 until at least May 2017 . . . earning the most she ever earned for a year, and did it during a period in which she originally alleged that she was disabled." Tr. 28-29. The ALJ concluded that the "evidence shows the symptoms have not been as limiting as the claimant has alleged. The symptoms reduce the claimant's ability for work-related activities to some extent, but the claimant remains capable of performing work within the RFC." Tr. 29.
While the ALJ did not specifically discuss the findings made by the State agency consultants, he gave "little weight" to the opinions of the psychological consultants and "great weight" to the opinions of the medical consultants because he found those opinions "consistent with the record as a whole and claimant's actual work and earnings." Tr. 29.
On October 2, 2015, State Agency medical consultant, Dr. Jean Smolka, completed a Physical RFC assessment of Plaintiff. Tr. 80-84. She opined that Plaintiff could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk for about six hours in an eight-hour workday with normal breaks, sit for about six hours in an eight-hour workday with normal breaks, and could push/pull with unlimited limitations other than as shown for lift and carry. Tr. 81. She indicated Plaintiff could frequently climb ramps/stairs; never climb ladders/ropes/scaffolds; had no limitations with balancing; and could frequently stoop, kneel, crouch, and crawl. Id. Dr. Smolka noted these postural limitations were based on Plaintiff's fibromyalgia and migraine headaches. Id. Regarding any manipulative limitations, Dr. Smolka indicated Plaintiff had no limitations in reaching in any direction or in feeling, but she was limited bilaterally in handling and fingering. Tr. 81-82. Dr. Smolka noted that Plaintiff had no visual or communicative limitations but indicated environmental limitations of avoiding concentrated exposure to noise; vibration; fumes, odors, dusts, gases, poor ventilation; and hazards. Tr. 82. Dr. Smolka based these environmental limitations on Plaintiff's migraine headaches. Id.
The ALJ's RFC assessment is the same as Dr. Smolka's RFC assessment with the same postural and environmental limitations that Dr. Smolka attributed to Plaintiff's migraine headaches. However, nowhere in his Decision does the ALJ specifically state how his RFC accounts for Plaintiff's migraine headaches—even though he is very specific with how the RFC considers the reported symptoms related to standing, walking, and sitting. See Tr. 24, 28. The ALJ also does not discuss whether he considered the impact of the need for time off-task or absences due to migraines. While it may be inferred that because the ALJ concluded that Plaintiff's symptoms were not as limiting as she alleged, he determined that there was no need to consider time off task or absences due to migraines; however, that is unclear. The Commissioner argues that the ALJ "thoroughly considered Plaintiff's migraines in assessing her work capacity" and cites to evidence in the record (not cited by the ALJ) where Plaintiff denied headaches and photophobia. Tr. 7. The Commissioner also cites to two instances in the ALJ's Decision where the ALJ noted "possible drug seeking behavior" and "exaggerated pain behaviors." Id. (citing Tr. 26, 27). However, neither of those citations related to Plaintiff's migraine complaints.
The Commissioner also cites to other locations in the record that refer to these behaviors, but those records were not discussed by the ALJ in his Decision. Def.'s Br. 7. --------
The ALJ has the duty to weigh the evidence, resolve material conflicts in the record, and decide the case accordingly. See Richardson v. Perales, 402 U.S. at 399. This court may not reweigh the evidence or substitute its own judgment for the Commissioner's, even if it finds the evidence is susceptible to more than one rational interpretation. See Hays, 907 F.2d at 1456. Here, the ALJ stated that he fully considered the effects of migraine headaches in assessing Plaintiff's RFC, Tr. 23, and "[a]bsent evidence to the contrary, the court takes the ALJ at his word." Stufft v. Saul, No. 5:18-CV-1651-KDW, 2019 WL 3561877, at *9 (D.S.C. Aug. 6, 2019) (citing Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014)). However, there is evidence to the contrary. Although the ALJ notes Plaintiff's testimony regarding the frequency and duration of her migraines, there is nothing in the ALJ's Decision that analyzes the impact of those symptoms on the RFC assessment. Given the ALJ's lack of explanation related to his consideration of Plaintiff's migraine headaches in making his RFC assessment, the undersigned is unable to determine if the ALJ's Decision is supported by substantial evidence. In Mascio v. Colvin, the Fourth Circuit addressed whether an ALJ's failure to perform a function-by-function assessment necessitates remand. Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015). The court held that "a per se rule [requiring remand] is inappropriate given that remand would prove futile in cases where the ALJ does not discuss functions that are 'irrelevant or uncontested.'" Id. at 636. Nevertheless, the court "agree[d] with the Second Circuit that '[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.'" Id. (emphasis added). The ALJ's deficient analysis of Plaintiff's migraine symptoms frustrates meaningful review. Accordingly, the undersigned recommends remand so that the ALJ may provide a clearer explanation of his consideration of Plaintiff's migraines and the effect, if any, on her functioning and work-related abilities. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. April 10, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge