REPORT AND RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying her application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The Commissioner has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the Commissioner's decision be reversed and remanded for further administrative development.
I. Administrative History and Agency Decision
In her application, Plaintiff alleged she was disabled beginning on January 2, 2014. (AR 18, 179). Plaintiff alleged she was disabled due to a back injury, a right arm/wrist injury, depression, migraines, and neck pain. (AR 225). Initially and on reconsideration, the Social Security Administration denied Plaintiff's application for benefits. (AR 106-110, 115-121).
Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ") on May 18, 2017. (AR 122-123). Plaintiff appeared and testified at an administrative hearing conducted on October 13, 2017. (AR 29-73). Plaintiff testified concerning her usual daily activities, symptoms, functional abilities, medications, and medical treatment. A vocational expert ("VE") also testified. (AR 65-69).
The ALJ followed the five-step sequential evaluation process, required by agency regulations, to determine whether Plaintiff had been disabled at any time during the relevant period. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining process); 20 C.F.R. § 404.1520. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since her alleged onset date. (AR 18). At step two, the ALJ found Plaintiff had the severe, medically determinable impairments of a spinal disorder and a history of right arm surgery. (AR 18). The ALJ found Plaintiff had the non-severe medically determinable impairments of migraines and depression. (AR 18). At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. part 404, subpart P, appendix 1. (AR 19-20).
At the next step, the ALJ considered the medical and nonmedical evidence in the record and determined Plaintiff had the residual functional capacity ("RFC") to
perform sedentary work as defined in 20 CFR 404.1567(a) except [Plaintiff] can never climb ladders, ropes, or scaffolds; frequently climb ramps and stairs; frequently balance, stoop, knee, crouch, or crawl; and frequently use the right upper extremity for handling. [Plaintiff] is limited to jobs which can be performed while using a cane or motorized wheelchair for ambulation, and she can have no exposure to hazards, such as hazardous moving machinery, raw chemicals or solutions, and unprotected heights.
(AR 20). At step four of the sequential evaluation the ALJ relied on the hearing testimony of the VE, who, in turn, relied on the description of Plaintiff's past relevant work contained in the U.S. Department of Labor's Dictionary of Occupational Titles ("DOT"). After considering Plaintiff's age, education, work experience, and RFC, the ALJ found at step four that Plaintiff could perform her past relevant work as a customer service representative. (AR 23, 65-68).
The Appeals Council denied Plaintiff's request to review the ALJ's decision on April 3, 2018. (AR 6-10). Therefore, the ALJ's decision constitutes the final decision of the Commissioner. See 20 C.F.R. § 404.981, Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
On April 25, 2018 the Appeals Council issued an additional denial, stating that they were setting aside the April 3, 2018 action "to consider additional information." The additional information in question appears to be a supplementary brief submitted by Plaintiff's representative. (AR 4).
II. Plaintiff's Arguments
Plaintiff raises two claims in support of reversing the Commissioner's decision. Specifically, Plaintiff argues the ALJ (1) failed to adequately consider the impact of Plaintiff's migraine headaches when assessing the RFC, and (2) inappropriately relied upon the finding that Plaintiff's mental impairments were non-severe to justify the lack of any work-related mental limitations in the RFC. Pl.'s Br. (Doc. No. 20) at 5-11.
III. General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and citations omitted). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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); accord, 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. § 404.1509, (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the residual functional capacity (RFC) to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross, 431 F.3d at 731. "The claimant is entitled to disability benefits only if he [or she] is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
A. ALJ's Evaluation of Plaintiff's Migraines
Plaintiff argues that in evaluating the impact of her migraine headaches, the ALJ "relied upon an isolated April 2017 comment" that Plaintiff's migraines began only a few nights earlier to conclude that her impairment was not severe. Pl.'s Br. (Doc. No. 20) at 5-6. In assessing Plaintiff's migraines, the ALJ noted Plaintiff's April 2017 comment, and found that the record "does not indicate that these headaches were persistent over a 12-month period, and they are therefore non-severe." (AR 18). The ALJ's conclusion concerning the duration of Plaintiff's migraines is not supported by the record. The treatment record that the ALJ relied upon, dated April 5, 2017, notes that Plaintiff
states that few night ago, migraines started, unsure of what trigger it, having headaches, nausea, sensitive to light, the midrin did help, but not helpig (sic) now.
The record is clear that Plaintiff began complaining of migraine related symptoms long before April 2017. Plaintiff stated that she first began experiencing headache symptoms at age 10. (AR 839). The medical record shows that Plaintiff was first diagnosed with migraine headaches in 2004, and has taken various medications, including Midrin, Imitrex, and Fioricet to treat her condition. (AR 861, 864, 900).
In March 2012, Plaintiff reported suffering from frequent, recurring headaches that resulted in dizziness and a tingling sensation. That same month an MRI of Plaintiff's brain revealed a borderline Chiari type 1 malformation. (AR 336, 388). Plaintiff continued to complain of migraine headaches throughout 2013 and 2014. (AR 828, 832, 839, 842, 844, 847, 850, 894-897). Plaintiff reported in March 2014 that her symptoms had improved somewhat, and she was experiencing only one or two headaches per week. (AR 798). In September 2014, Plaintiff reported that increased pain in her neck and lower back was causing an exacerbation of her migraines. (AR 772).
A Chiari malformation is a condition in which brain tissue extends into the spinal canal. The condition occurs when part of an individual's skull is abnormally small or misshapen, pressing on the brain and forcing it downward. According to the Mayo Clinic, severe headaches are "the classic symptom" of a Chiari malformation. https://www.mayoclinic.org/diseases-conditions/chiari-malformation/symptoms-causes/syc-20354010.
Plaintiff's physician continued to list her migraines among her medical conditions in 2015 and 2016. (AR 616, 618, 712, 767, 770). In September 2016, Plaintiff's migraine condition was reported to be stable. (AR 618). Plaintiff's physician, Geetha Umakumaran, MD, noted that Plaintiff had been referred for a neurology consultation in connection with her migraines, but the record does not appear to contain the results of this consultation. (AR 619). In January 2017, Plaintiff underwent a consultative examination with Raymond Azadgoli, MD. (AR 900-906). Plaintiff told Dr. Azadgoli that she was experiencing migraines in the right parietal region, and that she was having headaches every other day. (AR 900). Plaintiff stated that her migraines last for between five and six hours and result in photophobia and phonophobia. (AR 900). Plaintiff continued to complain of pain stemming from her migraine headaches during a February 2017 consultative examination with Ray Hand, PhD. (AR 909).
In evaluating the impact of Plaintiff's migraines, the ALJ briefly discussed Plaintiff's subjective allegations, but not did discuss any of the objective evidence concerning Plaintiff's headaches beyond the April 2017 treatment note. (AR 20-21). The ALJ must discuss the uncontroverted evidence he or she chooses not to rely upon, as well as significantly probative evidence he or she rejects. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996); see also Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir.1984) (The ALJ may not pick and choose particular entries in a medical record to support his or her ruling but must consider the record as a whole.).
The record is clear Plaintiff's migraines lasted for significantly more than 12 months. The record suggests Plaintiff's migraines are a chronic condition which may be caused by a malformation in Plaintiff's skull. By relying exclusively on the April 2017 treatment note, the ALJ ignored the remainder of the medical evidence concerning Plaintiff's migraines and based her decision on a "scintilla" of evidence. As such, the ALJ's decision to classify Plaintiff's migraines as a non-severe impairment because they did not last for 12 months is not supported by substantial evidence.
The ALJ's failure to adequately consider the evidence concerning Plaintiff's migraines does not constitute harmless error. A finding of harmless error is appropriate when the court can "confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way." Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). In this case, an administrative factfinder who found Plaintiff's migraines to be a severe impairment could have assessed a range of RFC limitations that would have imposed significant limitations on Plaintiff's ability to perform her past relevant work.
The Commissioner contends that the only medical opinions in the record, those rendered by State agency consultants Donald Baldwin, MD, and William, Oehlert, MD, support the ALJ's findings concerning Plaintiff's migraines. Comm.'s Br. (Doc. No. 21) at 9-10. The Commissioner contends the opinions of Dr. Baldwin and Dr. Oehlert, to which the ALJ assigned limited weight, support the ALJ's finding that Plaintiff's migraines were non-severe. Comm.'s Br. at 9. Dr. Baldwin and Dr. Oehlert do not appear to have included any limitations related to Plaintiff's migraines when assessing her RFC. (AR 84-86, 99-102). Dr. Oehlert found that Plaintiff's allegations concerning her migraines were inconsistent with the medical record but does not appear to have considered Plaintiff's lengthy history of migraine headaches, or the results of her March 2012 brain MRI when assessing the RFC. (AR 101-102). In weighing the opinions of Dr. Baldwin and Dr. Oehlert, the ALJ did not discuss Plaintiff's migraines, instead focusing on Plaintiff's difficulties with ambulation to explain the additional work-related physical limitations in the RFC. (AR 23).
Two other state agency consultants who examined the record, Phillip Massad, MD, and Mary Rolison, MD, did not include Plaintiff's migraines among Plaintiff's impairments. (AR 82-83, 96-98). --------
Neither the State agency consultants nor the ALJ appear to have given sufficient consideration to the treatment and diagnostic evidence related to Plaintiff's migraines, and the ALJ's decision is not supported by substantial evidence.
The Commissioner contends that the ALJ was not required to account for Plaintiff's allegations concerning her migraines because her statements were "not reliable". Comm.'s Br. at 9-10. Besides briefly discussing the treatment record from April 2017 and Plaintiff's subjective allegations, the ALJ did not otherwise evaluate the medical evidence concerning Plaintiff's migraines, and reaching the conclusion that Plaintiff's statements about her migraines were not consistent with the evidence would constitute a post-hoc effort to support the ALJ's findings by reaching conclusions not supported by the text of the ALJ's decision. See Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007); see also Robinson v. Barnhart, 366 F.3d 1078, 1084-85 (10th Cir. 2004) (rejecting "post hoc effort to salvage the ALJ's decision").
The ALJ did not sufficiently consider Plaintiff's migraines when assessing the RFC, and incorrectly reasoned that her migraines were non-severe because her condition had not lasted more than 12 months. On remand, the ALJ should consider all the available evidence concerning Plaintiff's migraines, and assess an RFC that incorporates all the work-related functional limitations, if any, stemming from this condition.
B. Other Arguments
The Court agrees that the ALJ's failure to properly evaluate the impact of Plaintiff's migraines merits remand, and therefore does not address Plaintiff's remaining claims. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
In view of the foregoing findings, it is recommended that judgment enter REVERSING and REMANDING the decision of the Commissioner to deny Plaintiff's applications for benefits. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or before March 12th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
ENTERED this 20th day of February, 2019.
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE