Opinion
CIVIL ACTION NO. 9:19-0076-RMG-BM
01-15-2020
ANGELA FORTNER, Plaintiff, v. ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the Complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on June 4, 2015 (protective filing date), alleging disability beginning January 1, 2014 due to arthritis, migraines, a fatty liver, ovarian cysts, anxiety, leg/knee pain, hypothyroidism, and nausea. (R.pp. 226-241, 259). Plaintiff's claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on December 12, 2017. (R.pp. 44-69). The ALJ thereafter denied Plaintiff's claims in a decision issued February 28, 2018. (R.pp. 21-43). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-7).
Although the definition of disability is the same under both DIB and SSI; Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at * 1 n. 3 (D.S.D. Feb. 29, 2008); "[a]n applicant who cannot establish that she was disabled during the insured period for DIB may still receive SSI benefits if she can establish that she is disabled and has limited means." Sienkiewicz v. Barnhart, No. 04-1542, 2005 WL 83841, at ** 3 (7th Cir. Jan. 6, 2005). See also Splude v. Apfel, 165 F.3d 85, 87 (1st Cir. 1999)[Discussing the difference between DIB and SSI benefits].
Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded for an award of benefits, or for further consideration of her claims. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled. .
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
The record reflects that prior to the ALJ hearing in this case, Plaintiff amended her alleged onset date to February 12, 2015, the date of her fiftieth (50) birthday. (R.p. 387). Plaintiff has a high school education with past relevant work experience as a cloth inspector and fast food worker. (R.pp. 35, 48, 50-52). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience and functional capacity, and which has lasted or could reasonably be expected to last for at least twelve (12) consecutive months. After a review of the evidence and testimony in the case the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of lumbar degenerative disc disease, migraine headaches, chronic obstructive pulmonary disease (COPD), depression, and anxiety, thereby rendering her unable to perform any of past relevant work, she nevertheless retained the residual functional capacity (RFC) to perform a reduced range of light work, and was therefore not entitled to disability benefits. (R.pp. 26, 29-30, 35-37).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
"Light work 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." 20 C.F.R. § 404.1567(b) (2005).
Plaintiff asserts that in reaching this decision the ALJ erred by failing to properly address whether her severe impairment of migraines met a Listing level of impairment, and by improperly determining that she had the RFC for the range of light work set forth in the decision. Plaintiff also asserts that the Appeals Council improperly failed to consider new and material evidence submitted to that body as part of Plaintiff's appeal of the ALJ's decision. After careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ erred in the way he analyzed Plaintiff's severe impairment of migraine headaches, thereby requiring a reversal and remand of the case for a proper evaluation of this impairment.
In the Listings of Impairments, "[e]ach impairment is defined in terms of several specific medial signs, symptoms, or laboratory test results." Sullivan v. Zebley, 493 U.S. 521, 530 (1990). A claimant is presumed to be disabled if their impairment meets the criteria of an impairment set forth in the Listings. See 20 C.F.R. §§ 416.925, 416.926 (2003).
Plaintiff faults the ALJ's findings and analysis because she failed to evaluate her migraine impairment under Listing 11.02. Listing 11.02 applies to epilepsy; however, because there is no separate listing for migraines or headaches, courts routinely apply the epilepsy Listing (11.02) when analyzing a claimant's severe migraines. Melissa G. v. Saul, No. 18-50218, 2019 WL 4392995, at * 6 (N.D.Ill. Sept. 13, 2019). However, in this case Plaintiff correctly notes that, although the ALJ found that Plaintiff's migraines were a severe impairment, she failed to discuss whether this severe impairment was the equivalent of a listed impairment, nor did she make any reference to Listing 11.02 in her analysis. See (R.pp. 27-29). While the ALJ did discuss her findings relating to Plaintiff's migraine headaches later in her opinion (R.p. 32), Plaintiff argues (and the undersigned agrees) that this discussion was not sufficient to satisfy the requirements of substantial evidence.
First, the fact that the ALJ failed to even address whether Plaintiff's migraine impairment was equivalent to Listing 11.02 could arguably be deemed sufficient to warrant a remand for this purpose. Cf. Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015) ["In considering whether a claimant's condition meets or equals a listed impairment, an ALJ must discuss the Listing by name and offer more than perfunctory analysis of the Listing"], quoting from Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). Concededly, where an ALJ fails to do so (as is the case here), the decision can still be upheld as long as the overall conclusion is supported by the record. Vance v. Berryhill, 860 F.3d 1114, 1118 (8th Cir. 2017) ["An ALJ's failure to address a specific listing or to elaborate on his conclusion that a claimant's impairments do not meet the Listings is not reversible error if the record supports the conclusion"]. However, the undersigned is unable to determine based on the analysis set forth by the ALJ in her decision whether such a conclusion is supportable in this case, as the necessary findings were not made.
Where there is no specific Listing for an impairment (such as migraines), "[t]he ALJ must determine whether a 'medical equivalent' exists between a claimant's impairment and a listed impairment". Meyers v. Colvin, 721 F.3d 521, 524-525 (8th Cir. 2013), quoting 20 C.F.R. § § 404.1525(e), 4016.926(e). The medically equivalent Listing here is Listing 11.02 (epilepsy). "Migraines can be medically equivalent to seizures under Listing 11.02 as long as the evidence proves that their severity is at least of equal medical significance to those of a listed impairment". Hall v. Saul, No. 18-2032, 2019 WL 5085427, at * 9 (N.D.Iowa Oct. 10, 2019) (internal quotation omitted). Listing 11.02 sets forth, in part, that dyscognitive seizures occurring at least once a week for at least three consecutive months despite adherence to prescribed treatment may meet the listing. As such, courts have held that a migraine impairment can be functionally equivalent to this Listing where severe headaches or migraines occur at least once per week for three consecutive months despite adherence to prescribed treatment. Hall, 2019 WL 5085427, at *9; see also Kiser v. Colvin, No. 14- 1480, 2015 WL 4138263, at * 5 (S.D.Ind. July 5, 2015).
Here, however, Plaintiff's medical records either do not discuss the frequency of her migraines, indicate that they occurred monthly, or occurred one to two times a month. On one occasion, Plaintiff was even asymptomatic. See generally, (R.pp. 407-408, 419-420, 607, 634, 673, 823). Hence, the medical record is not conclusive on this issue, and (significantly) the ALJ failed to make a finding as to the frequency of Plaintiff's migraines, stating only that "the record does not support the claimant's allegation that her migraines last for several days and require that she be in a cool, dark room". (R.p. 32). Therefore, the undersigned cannot find that the record supports a conclusion that Plaintiff's condition is not equivalent to Listing 11.02. Cf. Vance, 860 F.3d at 1118 ["An ALJ's failure to address a specific listing or to elaborate on his conclusion that a claimant's impairments do not meet the Listings is not reversible error if the record supports the conclusion"]. Compounding the error of not making a finding as to the frequency of Plaintiff's migraines, in discussing this impairment the ALJ also misstates Plaintiff's testimony as to the frequency of her migraines, stating that Plaintiff testified that she experiences debilitating migraines "once a month that last for two to three days . . . ." (R.p. 30). However, that was not Plaintiff's testimony. Rather, Plaintiff testified that she gets "a real good headache . . . once a week, but the migraines . . . two to three times a month". (R.pp. 53-54). How much (or even whether) the ALJ's misstatement of the evidence affected her decision as to the severity of this impairment and whether it was equivalent to a listing (or whether she even considered this issue) is unclear, as no further discussion is provided. Cf. Cummings v. Berryhill, No. 16-1111, 2017 WL 1615853 at * 3 (D.S.C. May 2, 2017) [Finding that ALJ's misstatement showed substantial evidence may not have supported his determination]; Lowe v. Colvin, No. 15-669, 2016 WL 4804087 at * * 2-3 (D.S.C. Sept. 14, 2016) [same].
The Commissioner nonetheless argues that any failure of the ALJ to specifically reference Listing 11.02 in her decision is harmless error because the ALJ specifically noted that "the medical evidence of record does not establish any epilepsy or epileptic seizures occurring as a result of [Plaintiff's] migraines". (R.p. 32). However, a finding by the ALJ that Plaintiff did not suffer from seizures is not determinative of this issue, as that is not the standard to be applied. Cf. Kiser, 2015 WL 4138263, at * 5 [Noting that "[t]his argument misses the mark"]. The question is not whether Plaintiff suffers from seizures once a week for at least three months, but whether she suffers from "more than one medically severe migraine headache per week despite at least three months of prescribed treatment". Id.; see also Kwitschau v. Colvin, No. 11-6900, 2013 WL 6049072, at * 3 (N.D.Ill. Nov. 14, 2013). The Commissioner further argues that the ALJ nonetheless properly and sufficiently discussed Plaintiff's symptoms and migraine impairment to allow for judicial review. However, in addition to misstating Plaintiff's testimony as to how frequently she suffers from debilitating headaches and migraines, and not herself making a finding as to the frequency of Plaintiff's migraines, the ALJ merely states in her decision that the evidence does not "establish any other neurological deficits arising from this condition", notwithstanding her acknowledgment that the record establishes that Plaintiff frequently presented to treatment providers with complaints of headaches, nausea and vomiting due to this condition. (R.p. 32).
In sum, in light of the ALJ's failure to consider Plaintiff's migraine impairment under a Listing 11.02 equivalency analysis, her failure to make a finding as to the frequency of Plaintiff's migraines, and her otherwise perfunctory discussion of this condition, the undersigned cannot "predict with great confidence that the result on remand would be the same" if these issues were addressed. Corey Z. v. Saul, No. 18-50219, 2019 WL 6327427, at * 5 (N.D.Ill. Nov. 26, 2019), citing Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013); see also Miller v. Colvin, No. 15-443, 2016 WL 3679292, at * 4-5 (W.D.N.C. July 11, 2016) [Finding remand required where "it is not entirely clear how the evidence aligns with the necessary functions, which is a required showing"]; Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) [Finding remand required where ALJ fails to "build an accurate and logical bridge from the evidence to his conclusion"]. Of course, the ALJ may find on remand that Plaintiff's migraine impairment is not equivalent to a Listing , and indeed it would be easy to surmise, in light of the ALJ's finding that this impairment was not of a disabling severity, that this is the conclusion the ALJ would have reached (or even did reach) in her decision. But see, Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015) ["A finding of medical equivalence requires an expert's opinion on the issue"]. However, she did not say so, and since the ALJ did not make that determination or finding in her decision, or address the equivalency standard for evaluating this impairment, it would not be proper for this Court to now attempt to do so in the first instance. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) ["The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court"]; Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) [Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision]; Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) ["Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have thinking."].
Nor, unlike was the case in Hall, can the ALJ's failure to discuss the equivalency issue in this case be overlooked. In Hall, the ALJ sufficiently discussed the reasons why the Plaintiff would not be found to meet Listing 11.02 while articulating his analysis and conclusions regarding the Plaintiff's disability. Hall, 2019 WL 5085427, at * 10. However, as noted hereinabove, that is not the case here. Therefore, the decision should be reversed and remanded for a proper consideration of whether Plaintiff's migraine headaches are equal in severity and duration to the criteria of Listing 11.02. Cory Z., 2019 WL 6327427, at * 4-5; Kizer, 2015 WL 4138263, at * 5-6.
With respect to the remainder of Plaintiff's claims, the ALJ will be able to reconsider and reevaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D.Va. 2002)[On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for reevaluation of the evidence as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge January 15, 2020
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).