Williams v. Social Security Administration
MEMORANDUM AND ORDER reversing the Commissioner's decision and remanding this matter to the Commissioner for further proceedings pursuant to sentence four, within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Signed by Magistrate Judge J. Thomas Ray on 5/26/11. (hph)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
NO. 1:10CV00037 JTR
MICHAEL J. ASTRUE,
MEMORANDUM AND ORDER
Plaintiff, Luvicie Williams, has appealed the final decision of the
Commissioner of the Social Security Administration (SSA) denying her claim for
Disability Insurance Benefits (DIB). Both parties have submitted briefs (docket
entries #10, #12).
Judicial review of the Commissioner's denial of benefits examines whether the
decision is based on legal error, and whether the findings of fact are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Wildman v. Astrue,
596 F.3d 959, 963 (8th Cir. 2010). Substantial evidence is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion. Richardson v.
Perales, 402 U.S. 389, 401 (1971).
On August 28, 2006, Plaintiff filed an application for DIB, alleging an onset
date of December 31, 2005. (Tr. 103.) She reported that she was unable to work due
to daily headaches and migraines about every three days, could not sleep or relax, and
could not focus when she was having a migraine. She said she missed a lot of work
due to her headaches, quit because she was going to get fired, then found a job that
was “more part-time.” (Tr. 122.) She was forty-four years old at the time of her
application, had completed high school, and had past work experience as a console
operator and a nurse’s aide. (Tr. 103, 123, 126.)
After her claims were denied at the initial and reconsideration levels, she
requested a hearing before an Administrative Law Judge (ALJ). On June 3, 2008, the
ALJ conducted an administrative hearing, at which Plaintiff and a vocational expert
testified. (Tr. 6-55.)
The ALJ considered Plaintiff’s impairments by way of the familiar five-step
sequential evaluation process. Step 1 involves a determination of whether the
claimant is involved in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i) &
(b). If the claimant is, benefits are denied, regardless of medical condition, age,
education, or work experience. Id.
Step 2 involves a determination, based solely on the medical evidence, of
whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments which significantly limits the claimant’s ability to perform basic work
activities. Id. § 404.1520(a)(4)(ii) & (c). If not, benefits are denied. Id.
Step 3 involves a determination, again based solely on the medical evidence,
of whether the severe impairment(s) meets or equals a listed impairment, which is
presumed to be disabling. Id. § 404.1520(a)(4)(iii) & (d). If so, and the duration
requirement is met, benefits are awarded. Id.
Step 4 involves a determination of whether the claimant has a sufficient
residual functional capacity (RFC), despite the impairment(s), to perform the physical
and mental demands of past relevant work. Id. § 404.1520(a)(4)(iv) & (f). If so,
benefits are denied. Id.
Step 5 involves a determination of whether the claimant is able to make an
adjustment to other work, given claimant’s age, education and work experience. Id.
§ 404.1520(a)(4)(v) & (g). If so, benefits are denied; if not, benefits are awarded. Id.
In her September 24, 2008 decision (Tr. 61-69), the ALJ found that Plaintiff:
(1) had not engaged in substantial gainful activity since December 31, 2005, her
alleged onset date;1 (2) had “severe” impairments of migraine headaches and neck
and back pain; (3) did not have an impairment or combination of impairments that
met or medically equaled a listed impairment; (4) had the RFC for a limited range of
light work; (5) was not fully credible regarding the intensity, persistence and limiting
The ALJ found that Plaintiff had acquired sufficient quarters of coverage to meet
the insured status requirements through December 31, 2010. (Tr. 61, 63.)
effects of her symptoms; (6) was unable to perform any past relevant work; but (7)
considering her age, education, work experience and RFC, and based on the
testimony of the vocational expert, was able to perform other jobs that exist in
significant numbers in the national economy, i.e., light semi-skilled occupations such
as an assembler of small products. Thus, the ALJ concluded that Plaintiff was not
disabled. The Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision, thereby making it the final decision of the Commissioner. (Tr. 1-5.)
Plaintiff then appealed the denial of benefits to this Court (docket entry #2).
Plaintiff argues that the ALJ erred: (1) in disregarding the opinions of
Plaintiff’s treating physicians; (2) in “overstating” Plaintiff’s RFC and assessing the
credibility of her allegations; (3) in finding that her heart condition and hand
numbness were not severe impairments; and (4) in formulating the hypothetical
question she asked the vocational expert. For the reasons discussed below, the Court
concludes that Plaintiff’s second and fourth claims warrant remand. Therefore, they
will be discussed first.
At step five, the Commissioner bears the burden of showing that jobs exist in
significant numbers which a person with the claimant's RFC and vocational factors
can perform. 20 C.F.R. § 404.1560(c)(2). He can utilize the testimony of a
vocational expert to satisfy this burden, id. § 404.1566(e); however, such testimony
constitutes substantial evidence only when "based on a correctly phrased hypothetical
question that captures the concrete consequences of a claimant's deficiencies."
Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008).
Medical records from May 2006 to December 2007 document that Plaintiff
repeatedly sought treatment for at least two different types of headaches, including
one type that went from the occipital area to the cervical spine and a migraine-type
that was located on the right side above her ear. (Tr. 181-86, 190-99, 204, 212.) She
reported to a consulting neurologist, Dr. Bruce D. Robbins, that she had experienced
the headaches for about fourteen years and had tried several medications, with “no
dramatic improvement.” (Tr. 182.) An MRI showed a “fairly thick corpus callosum”
and “a concerning amount of subarachnoid space, particularly in the frontal region.”
(Tr. 199.) Her headaches were described by Dr. Robbins as “chronic and atypical.”
(Tr. 185.) He wrote that her neurological evaluation was normal and that her
condition probably represented a combination of vascular headaches and possible
cervical spine disease. (Tr. 185-86.)
Plaintiff testified at the hearing before the ALJ that she had eighteen to twenty
migraines a month and threw up every day. (Tr. 22, 27.) She described the pain as
“throbbing” and “stabbing,” with distorted vision, numbness in her face, and
vomiting. (Tr. 141.) She said the pain lasted from a few hours to several days, and
that sometimes her vision would go out when she was working and someone would
have to pick her up from work. (Tr. 28, 141.)
The ALJ found that, despite her severe impairments of migraine headaches and
neck/back pain, Plaintiff had the RFC for a limited range of light work, as follows:
[W]hile the claimant can frequently lift and/or carry ten pounds, and
occasionally twenty pounds, sit (with normal breaks) for a total of six
hours in an eight hour work day, and stand and/or walk (with normal
breaks) for a total of about six hours in an eight hour work day, the
claimant cannot climb scaffolds, ladders or ropes, and she cannot
operate a motor vehicle as part of her work. The claimant should not
be exposed to unprotected heights or dangerous equipment/
machines, temperature extremes, or extreme vibration. The
claimant can only occasionally climb ramps and stair[s], stoop,
bend, crouch, crawl, kneel, or balance. The claimant must work
where instructions are simple and non-complex; interpersonal contact
with co-workers and the public is incidental to the work performed; the
complexity of tasks is learned and performed by rote; the work is routine
and repetitive; there are few variables; little judgment is required; and
the supervision required is simple, direct and concrete.
(Tr. 64-65) (emphasis added).
In posing hypothetical questions to the vocational expert (Tr. 44, 52-54), the
ALJ did not include the restrictions emphasized above, i.e., the inability to climb
scaffolds, ladders, or ropes; the need to not be exposed to unprotected heights,
dangerous equipment or machines, temperature extremes, and extreme vibration; the
limitation to only occasional climbing of ramps and stairs, stooping, bending,
crouching, crawling, kneeling and balancing. The Commissioner asserts that no
harmful error occurred because Plaintiff failed to explain how these limitations
adversely affected her ability to perform the job cited by the vocational expert.
Because the record contains evidence supporting some of the omitted restrictions, the
Court cannot find that any deficiency in the hypothetical question was harmless.
Evidence in the record indicates that several of the conditions omitted from the
hypothetical question could trigger headaches or nausea episodes, or exacerbate
Plaintiff’s pain. She testified there were so many different triggers that she could not
pinpoint just one. (Tr. 27.) She identified the following specific precipitating or
aggravating factors: heat (Tr. 30); “anything blinking” (Tr. 30); “flashes of light” (Tr.
40); bending over and lifting (Tr. 141); bright lights, strong scents, and loud noises
(Tr. 141); standing/walking for more than an hour (Tr. 141); lights, noises, strong
scents, lifting or moving things, or being tired or hungry (Tr. 142); pollen, dust and
gases (Tr. 146); lifting, “any kind of straining,” or bending over, which put pressure
on her head (Tr. 148); and sitting “too long,” which made her head throb (Tr. 141,
150). She also reported experiencing sudden loss of vision and distorted vision, as
well as dizziness. (Tr. 28, 141, 146, 183, 185.)
The ALJ did not mention any of the triggers and apparently considered at least
some of them to be credible by expressly including restrictions in her RFC on
bending, temperature extremes, and exposure to unprotected heights and dangerous
conditions. Because the ALJ’s hypothetical question did not incorporate all of the
limitations expressed in the RFC assessment, the expert’s responsive testimony based
on that hypothetical does not constitute substantial evidence to support the
Commissioner’s step-five decision. The case should be remanded for the ALJ to
present a hypothetical question that reflects all of Plaintiff’s impairments and
restrictions encompassed by her RFC assessment.
RFC Assessment/Credibility Determination.
Plaintiff asserts that the ALJ’s RFC overstates her abilities because the ALJ:
failed to take into account the frequency and unpredictability of her migraines; failed
to take into account her statements that standing/walking for extended periods and
lifting triggered her migraines; ignored evidence that exertion causes her to have
shortness of breath; and dismissed without adequately developing the record
regarding her hand numbness. Plaintiff also argues that the analysis of the credibility
of her subjective complaints was “seriously lacking.”
In evaluating a claimant's RFC,2 the ALJ must evaluate his or her credibility
RFC is defined as "the most [the claimant] can still do" in a work setting "on a
regular and continuing basis" despite his or her physical and mental limitations. 20
C.F.R. § 404.1545(a)(1), (b) & (c).
and take into account all relevant evidence. Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005). A claimant's subjective complaints may be discounted if they are
inconsistent with the record as a whole. Id. at 801-02. The ALJ is in the best position
to gauge credibility and is granted deference in that regard if his findings are
adequately explained and supported. Steed v. Astrue, 524 F.3d 872, 876 (8th Cir.
2008). The ALJ is required to consider, in addition to the objective medical evidence
and the claimant's prior work record, statements and observations made by the
claimant, his or her medical providers and any others regarding (1) the claimant's
daily activities, (2) the location, duration, frequency and intensity of pain or other
symptoms, (3) precipitating and aggravating factors, (4) type, dosage, effectiveness
and side effects of medications, (5) non-medication treatments or other measures
taken to alleviate pain and symptoms, and (6) functional limitations. 20 C.F.R. §
404.1529(c); see Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984); SSR 96-7p, 1996
WL 374186, at *3, *5 (July 2, 1996).
Here, the ALJ stated that she had considered Plaintiff’s statements about her
symptoms in light of the objective medical evidence and “the entire case record,” and
in accordance with the applicable rules and regulations, citing § 404.1529 and SSR
96-7p. She found that, while Plaintiff’s impairments reasonably could be expected
to produce headaches and neck pain, her statements concerning the intensity,
persistence and limiting effects of these symptoms were “not credible” to the extent
they were inconsistent with the RFC assessment. (Tr. 65-66.)
The ALJ’s ensuing discussion did identify some evidence in the record
detracting from Plaintiff’s credibility;3 however, because the case is being remanded,
the ALJ should ensure that her decision adequately covers the following areas
identified by Plaintiff before discrediting her testimony.
The ALJ noted that Plaintiff “worked successfully for more than ten years after
the onset of the headaches.” (Tr. 67.) Other than this comment, the ALJ’s decision
did not mention Plaintiff’s work history, including the fact that she had worked
steadily since 1981, worked nineteen years for one employer and became a
supervisor, worked two jobs in 2004 and 2005, and earned $23,308 the last full year
she worked (2005). (Tr. 12-18, 33-34, 108-09, 120.) This type of consistent work
record enhances her credibility. See O'Donnell v. Barnhart, 318 F.3d 811, 816-17
(8th Cir. 2003) (claimant's "fourteen-year record of responsible and well-paying jobs"
prior to the alleged onset of disability supported her credibility).
The ALJ’s only reference to Plaintiff’s limited daily activities was that her back
The ALJ cited: Plaintiff’s report that medication reduced her headaches; her
history of smoking and the neurologist’s opinion that this contributed to her headaches; a
primarily normal cardiac work-up with no assessed restrictions on her activities; her
ability to work for ten years with her headaches and no medical evidence that her
symptoms had worsened; and inconsistencies in her physicians’ opinions. (Tr. 65-67.)
disorder and neck pain did not prevent her from “sustaining a reasonable walking
pace ... or using the upper extremities effectively to be able to carry out activities of
daily living.” (Tr. 64.) Her disability reports and hearing testimony indicated that her
daily activities were limited, not necessarily by neck/back pain, but by the
unpredictable nature and severity of her headaches, including nausea, vision loss, and
a multitude of triggers. (Tr. 29-33, 40, 44, 143-50.) As discussed above, the ALJ did
not mention the precipitating or aggravating factors for Plaintiff’s allegedly
debilitating headaches. Furthermore, the ALJ only cited Plaintiff’s report of “almost
daily” headaches and “chronic neck pain,” without discussing the frequency,
unpredictability and intensity with which Plaintiff alleged her headaches to occur.
Finally, the ALJ did not mention the statements from Plaintiff’s three
witnesses, one of whom was a former co-worker. (Tr. 175-78.) Statements from lay
persons regarding a claimant’s condition must be considered when evaluating a
claimant’s subjective complaints. Willcockson v. Astrue, 540 F.3d 878, 880-81 (8th
Cir. 2008) (ALJ not required to accept all lay testimony, but cannot “simply ... ignore
As to Plaintiff’s alleged shortness of breath and hand numbness, the ALJ’s
opinion shows that she appropriately considered and discounted the minimal
objective medical evidence of these two alleged conditions in formulating Plaintiff’s
Treating Physicians’ Opinions.
Dr. Victor Chu, Plaintiff’s family physician, wrote on April 30, 2008, that
Plaintiff was a patient of his who had severe migraine headaches and was “unable to
work due to the severity and frequence of these migraines.” (Tr. 214.)5 Opinions that
a claimant is "disabled" or "unable to work" concern issues reserved for the
Commissioner and are not the type of opinions which receive controlling weight.
Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Giving such opinions
controlling weight would "in effect, confer upon the treating source the authority to
make" disability determinations. Id. (quoting SSR 96-5p, 1996 WL 374183, at *2
(July 2, 1996)). The ALJ stated that she was giving “substantial weight” to the
Dr. Michael J. Camp, a cardiologist, saw Plaintiff for “chest discomfort,”
palpitations, and shortness of breath. As noted by the ALJ, testing revealed a normal
adenosine cardiolite, normal ejection fraction of 80%, and a normal adenosine stress
result. (Tr. 66, 207-08.) Also as noted by the ALJ, an echocardiogram showed an area of
focal hypokinesis at the apex and mild mitral and tricuspid regurgitation, but normal sinus
rhythm and ventricular functions. (Tr. 64, 66, 209-10.) At a follow-up visit with Dr.
Camp, the only recommended treatment was medication for “better control of her blood
pressure,” risk modification through weight loss, and “possible” further testing through
cardiac catherization. (Tr. 213.) Plaintiff reported that medication improved her chest
pain and palpitations. (Tr. 203, 205, 211-13.) The ALJ also noted Plaintiff’s complaints
of hand numbness, and Dr. Robbins’ offer of nerve conduction studies, which apparently
never occurred. (Tr. 63-64, 65-66, 183, 185, 199.)
The record documents that Dr. Chu treated Plaintiff on two occasions for
headaches, stress, depression, sleep problems, and fibromyalgia. (Tr. 181 [08-21-06]; 195
[02-06-07].) Medication refills were approved by other personnel. (Tr. 192-94, 196-98.)
opinions of Plaintiff’s treating and examining physicians, but correctly declined to
give controlling weight to Dr. Chu’s opinion that Plaintiff was unable to work. (Tr.
Dr. Robbins, a neurologist, saw Plaintiff for a consultation regarding her
headaches on August 30, 2006, and as a follow-up on September 20, 2006. (Tr. 18286, 199.) At the August visit, Plaintiff reported that the prescribed medication helped
decrease the migraine-type headaches. (Tr. 182). In September, she again reported
that medication had reduced her migraines but she was still having a “mild” occipitaltype headache and some clicking in her neck. (Tr. 199.) On September 20, 2006, Dr.
Robbins completed a form for the SSA, stating that Plaintiff had headaches in the
frontal and top areas every day, occasionally required emergency room visits to
obtain relief, was being treated with medication but it was “not working,” and had
“frequent [headaches] that limit work.” (Tr. 179.)
The ALJ addressed Dr. Robbins’ treatment records and stated that she was
giving his opinions “substantial weight.” (Tr. 65-66.) However, the ALJ properly
discounted Dr. Robbins’ statement that Plaintiff’s medications were not working and
that frequent headaches limited her ability to work because, as noted by the ALJ,
these statements conflicted with his contemporaneous treatment records where she
said her medications were reducing her migraine-type headaches and the remaining
headaches were “mild.” (Tr. 66-67.) See Halverson v. Astrue, 600 F.3d 922, 930 (8th
Cir. 2010) (ALJ can properly discount a treating physician's opinion if it is
inconsistent with the physician's own clinical treatment notes, or is inconsistent with
and unsupported by the medical evidence as a whole).
The record thus shows that the ALJ gave appropriate consideration to the
opinions of Dr. Chu and Dr. Robbins.
Heart Condition/Hand Numbness.
Plaintiff argues that the ALJ erred in finding that neither Plaintiff’s heart
condition nor her hand numbness were severe impairments at step two of the
sequential evaluation. This argument does not merit reversal because the ALJ did not
terminate her analysis at step two, instead proceeding through the sequential
evaluation and stating that she was considering “all of the claimant’s impairments,
including impairments that are not severe” in formulating Plaintiff’s RFC. (Tr. 62.)
This is further demonstrated by the ALJ’s continued references – after making the
step-two determination – to Plaintiff’s complaints of hand numbness and cardiacrelated symptoms and the related medical evidence. (Tr. 65-66.) See Swartz v.
Barnhart, 188 F. App’x 361, 368 (6th Cir. 2008) (where ALJ finds at least one
“severe” impairment and proceeds to assess claimant’s RFC based on all alleged
impairments, any error in failing to identify particular impairment as “severe” at step
two is harmless).
For the foregoing reasons, the Court concludes that substantial evidence does
not support the Commissioner’s step-five determination. On remand, the ALJ should
present a hypothetical question that reflects all of Plaintiff’s impairments and
restrictions encompassed by her RFC assessment. Additionally, the ALJ should
ensure that she considers all relevant factors, as set forth above, in evaluating the
credibility of Plaintiff’s complaints of debilitating impairments and functional
IT IS THEREFORE ORDERED THAT the Commissioner’s decision is
reversed and this matter is remanded to the Commissioner for further proceedings
pursuant to “sentence four,” within the meaning of 42 U.S.C. § 405(g) and Melkonyan
v. Sullivan, 501 U.S. 89 (1991).
DATED THIS 26th day of May, 2011.
UNITED STATES MAGISTRATE JUDGE
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