Opinion
Civil Action 4:23-CV-02153-BHH-TER
05-23-2024
DONALD DAVID SNYDER, JR., Plaintiff, v. MARTIN O'MALLEY[1], Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III., UNITED STATES MAGISTRATE JUDGE.
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a “final decision” of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff filed his application for DIB in October 2021, alleging inability to work since October 1, 2021. (Tr. 14). His claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held in November 2022, at which time Plaintiff and a vocational expert (VE) testified. (Tr. 14). The Administrative Law Judge (ALJ) issued an unfavorable decision on December 9, 2022, finding that Plaintiff was not disabled. (Tr. 14-28). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied in March 2023, making the ALJ's decision the Commissioner's final decision. (Tr. 1-3). Plaintiff filed this action in May 2023. (ECF No. 1).
B. Plaintiff's Introductory Facts
Plaintiff was born in September 1964 and was fifty-seven years old on the alleged disability onset date. (Tr. 26). Plaintiff had at least a high school education and has past work experience as a composite job of user support analyst and network controls operator supervisor. (Tr. 26). Plaintiff alleges disability originally due to back issues, lumbar arthritis, aortic aneurysm, obstructive sleep apnea, asthma, gastroesophageal reflux disease, right hand, premature ventricular contraction with heart block, bilateral flat feet, bilateral planter fasciitis, and joint pain over entire body. (Tr. 66). Relevant medical records will be discussed under pertinent issue headings.
C. The ALJ's Decision
In the decision of December 9, 2022, the ALJ made the following findings of fact and conclusions of law (Tr. 14-28):
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2026.
2. The claimant has not engaged in substantial gainful activity since October 1, 2021, the alleged onset date (20 CFR 404.1571, et seq.).
3. The claimant has the following severe impairment: lumbar degenerative disc disease (20 CFR 404.1520(c)).
4. 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 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except frequent sitting, standing, and walking; occasional
climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; frequent balancing, stooping, kneeling, crouching, and crawling; and avoiding concentrated exposure to hazards such as unprotected heights.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on September 26, 1964, and was 57 years old, which is defined as an individual of advanced age, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
9. The claimant has acquired work skills from past relevant work (20 CFR 404.1568).
10. Considering the claimant's age, education, work experience, and residual functional capacity, the claimant has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy (20 CFR 404.1569, 404.1569a and 404.1568(d)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from October 1, 2021, through the date of this decision (20 CFR 404.1520(g)).
II. DISCUSSION
Plaintiff argues the ALJ erred in determining the RFC generally as to function-by-function, specifically as to finding foot impairments(ECF No. 16 at 17-20) and migraines(ECF No. 16 at 20) nonsevere. Plaintiff argues the ALJ failed to adequately explain why these conditions would not impact Plaintiff's RFC. (ECF No. 16 at 21).
Further as to the RFC, Plaintiff argues the ALJ ignored “key record evidence documenting back and lower extremity symptoms far more severe than the ALJ acknowledged” in determining a light work RFC. (ECF No. 16 at 2). Plaintiff notes the ALJ stated most exams showed no problems with ambulation and an irregular gait was infrequent. (ECF No. 16 at 22). Plaintiff argues the ALJ failed to reconcile conflicting evidence. (ECF No. 16 at 25). Plaintiff argues the ALJ erred in finding Dr. Huberty's opinions and Werter's opinions unpersuasive. (ECF No. 16 at 30-31). Plaintiff argues the ALJ erred in performing the subjective symptom evaluation. (ECF No. 16 at 32).
The Commissioner argues that the ALJ's decision is supported by substantial evidence.
A. 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.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: the 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 at least 12 consecutive 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 the “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (2) whether he 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 him from doing SGA. See 20 C.F.R. § 404.1520. 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. § 404.1520(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. § 404.1525. 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. § 404.1520(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. § 404.1526; 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).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
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, § 404.1520(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 v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (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, 296 F.3d at 290 (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, 438 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 her conclusion is rational. See Vitek, 438 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). B. ANALYSIS
Migraines: Nonsevere and RFC
Plaintiff argues the ALJ erred in determining the RFC, specifically as to finding migraines nonsevere. (ECF No. 16 at 20). Plaintiff argues the ALJ failed to adequately explain why migraines would not impact Plaintiff's RFC. (ECF No. 16 at 21).
A severe impairment is defined by the regulations as “any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Plaintiff bears the burden of demonstrating that she has a severe impairment. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). However, “‘[a]n impairment can be considered as ‘not severe' only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience.' ” Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir.1984) (quoting Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.1984)).
The ALJ here based the nonsevere classification in part by finding migraines did not significantly limit ability to perform basic work activities for 12 consecutive months. (Tr. 18). The ALJ cited to SSR 85-28. The ALJ stated the evidence suggested no more than slight abnormalities related to migraines. The ALJ cited three notes in the record. The ALJ discussed a “December 2021” telehealth visit where Plaintiff reported worsening headaches since August 2021. Plaintiff's headaches “were debilitating and lasted 4 to 5 hours.” (Tr. 18). Later in December 2021, Plaintiff was still having problems and was advised to increase his sumatriptan dose at the onset of a headache. The ALJ cited to Exhibit 13F, which is over 600 pages of VA medical records. (Tr. 678). The ALJ summarized the February 2022 note, citing to Exhibit 14F, records from Dr. Huberty, as: “although the claimant reported more frequent migraines, they were responding well to medication.” (Tr. 18). However, the actual note in the record does not state “well” and noted migraine frequency of about once a week. (Tr. 1338).
The record before the ALJ shows in November 2021, Plaintiff complained of more frequent migraine flares with no improvement from Tylenol. (Tr. 636). Plaintiff had 4-5 migraine flares in October and four migraines in November 2021. (Tr. 636). On December 1, 2021, Plaintiff was seen over the phone for worsening headaches. (Tr. 629). Plaintiff reported having headaches since 2000, but since August 2021, Plaintiff's migraine headaches were more intense and lasted 4-5 hours with sensitivity to light and sound. Sumatriptan was prescribed. (Tr. 633).
On December 15, 2021, Plaintiff's migraine rescue medication, sumatriptan, was increased after Plaintiff reported having two migraines where the medication did not help. (Tr. 623). In February 2022, Plaintiff “had a little more frequency of migraines about once a week, but they do respond to Imitrex.” (Tr. 1338). In Dr. Huberty's July 2022 opinion, frequent prostrating headaches is listed. (Tr. 1667). In Dr. Huberty's November 2022 opinion, chronic migraine headaches is listed. (Tr. 1734-1735).
As to the ALJ's finding “migraines not significantly limiting ability to perform basic work activities for 12 consecutive months,” to the extent this statement was focused on meeting the length of time of the impairment, substantial evidence does not support the ALJ's finding. The record contains treatment and/or report of migraines from November 2021 through November 2022. (Tr. 636, 1734-1735).
Second, while Plaintiff argues his migraine impairment is severe, even nonsevere impairments are to be considered by the ALJ in the RFC. An adjudicator is solely responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546(c). In making that assessment, the ALJ must consider the functional limitations resulting from the claimant's medically determinable impairments. Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. This ruling provides that: “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).” SSR 96-8, *7. “The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” Id. Additionally, “ ‘a necessary predicate to engaging in a substantial evidence review is a record of the basis for the ALJ's ruling,' including ‘a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.' ” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See Craig, 76 F.3d at 595. “ALJs may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 97 (4th Cir. 2020). The ALJ at step three is to “consider the individual's symptoms when determining his or her residual functional capacity and the extent to which the individual's impairment-related symptoms are consistent with the evidence in the record.” SSR 16-3p, at *11.
SSR 19-4p, titled Evaluating Cases Involving Primary Headache Disorders, provides: “We must consider and discuss the limiting effects of all impairments and any related symptoms when assessing a person's RFC.” SSR 19-4p at *7 (answering the titled question, “How do we consider an MDI of a primary headache disorder in assessing a person's [RFC]?”). An example is given that symptoms of such MDI may “cause a person to have difficulty sustaining attention and concentration. Consistency and supportability between reported symptoms and objective medical evidence is key in assessing the RFC.” SSR 19-4p, *8.
The record shows contemporaneous reports of Plaintiff having at least a migraine headache a week and contemporaneous reports to treating providers show they last at least 4-5 hours. Plaintiff testified his migraines were the third impairment that prevented him from working. Plaintiff testified his migraines come out of no where and then he must be in a dark room with no noise. Plaintiff testified even with medication, the episode lasts four to twelve hours. (Tr. 46). (The ALJ did summarize this testimony but inaccurately, stating Plaintiff testified that they “last for about four hours”). (Tr. 21). In November 2022, Plaintiff testified that he had 5-6 migraines per month. (Tr. 46). The ALJ stated he found this testimony inconsistent with the February 2022 treatment notes, which stated “had a little more frequency of migraines about once a week, but they do respond to Imitrex,” and the ALJ stated those records said “only about once a week and respond well to medication.” (Tr. 1338; 22). It is clear from his opinion the ALJ acknowledged and accepted Plaintiff had at least one migraine a week. (Tr. 22).
It is not apparent in the ALJ's decision whether the ALJ considered the impact of the allegations and records of contemporaneous reports of the frequency of Plaintiff's migraines in formulating the RFC. It is unclear whether a workweek is capable of being sustained where the record shows Plaintiff had one migraine a week lasting 4-5 hours with sensitivity to light and sound without any accommodating limitations. See SSR 19-4p, *7-8. The VE testified missing four days a month or being off task for two hours a day would eliminate all employment. (Tr. 63). The ALJ's opinion lacks consideration of the impact of Plaintiff's migraine headaches on Plaintiff's ability to sustain work activity on a regular and continuing basis. 20 C.F.R. § 404.1545. SSR 96-8p explains that, “a ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.” Plaintiff's providers did not state that Plaintiff responded “well” to medication; the ALJ had expounded this. The ALJ did not discuss which migraine symptoms, as to light sensitivity and sound sensitivity, were supported by the evidence and which were not. The ALJ did not provide an accurate and logical bridge from the evidence to his findings.
“[T]here will often be no “objective” evidence of migraine headaches.” See Robinson v. Colvin, 31 F.Supp.3d 789, 793 n1 (E.D. N.C. 2014)(citing Duncan v. Astrue, 2008 WL 111158 *7 (E.D. N.C. Jan. 8, 2008) (noting that migraine headaches are a condition that cannot be diagnosed or confirmed through laboratory or diagnostic testing and listing cases holding same); Brownlee-Nobs v. Colvin, No. 1:14-CV-03988-JMC, 2015 WL 5908524, at *15 (D.S.C. Oct. 7, 2015)(“It is impossible to gauge ...the frequency of her migraines through any objective tests...”); Harrington v. Colvin, 2016 WL 320144, at *4 (E.D. N.C. Jan. 4, 2016), report and recommendation adopted, 2016 WL 311284 (E.D. N.C. Jan. 25, 2016)(an ALJ's reliance on normal imaging “merely suggests that the cause of her headaches cannot be identified through such testing, not that she does not suffer from headaches,” citing cases that found “migraines cannot be diagnosed or confirmed through laboratory or diagnostic testing”).
See Woody v. Kijakazi, 2023 WL 5745359 (4th Cir. Sept. 6, 2023)(remanding and finding the ALJ erred by not making specific findings regarding how often claimant would be absent due to the frequency and severity of her headaches, where the VE testified work was precluded if absent more than one day a month).
Given the record, the court cannot meaningfully review the ALJ's findings as to Plaintiff's nonsevere impairments, and as a result, the ALJ's findings as to the RFC. As discussed above, the court cannot find that the ALJ's decision regarding the evaluation of impairments and determination of the RFC is supported by substantial evidence, and remand is appropriate where inadequacies in the ALJ's analysis frustrate meaningful review. Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015). Upon remand, the ALJ should take into consideration all of Plaintiff's briefed allegations of error and support findings with citation to substantial evidence and provide logical explanation from the evidence to the ultimate conclusions. See id.
III. CONCLUSION
In conclusion, it may well be that substantial evidence exists to support the Commissioner's decision in the instant case. The court cannot, however, conduct a proper review based on the record presented. Accordingly, 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 Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be reversed and that this matter be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this opinion.