Niceschwander v. Social Security Administration
MEMORANDUM OPINION AND ORDER remanding the Commissioner's decision for action consistent with this opinion. This is a "sentence four" remand. Signed by Magistrate Judge Beth Deere on 06/23/2014. (ljb)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CASE NO.: 3:13CV00167 JTR
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff Melissa Niceschwander appeals the final decision of the Commissioner of
the Social Security Administration (the “Commissioner”) denying her claims for
Disability Insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”)
and for Supplemental Security Income (“SSI”) under Title XVI of the Act. For the
following reasons, the decision of the Commissioner must be REMANDED.
On January 3, 2011, Ms. Niceschwander filed for DIB and SSI, alleging disability
beginning on October 1, 2008, due to asthma, chronic obstructive pulmonary disease
(“COPD”), carpal tunnel syndrome, sleep disorder, lumbar issues, allergies, and chronic
dry eyes. (Tr. 180) Ms. Niceschwander’s claims were denied initially and upon
reconsideration. At her request, an Administrative Law Judge (“ALJ”) held a hearing on
June 12, 2012, at which Ms. Niceschwander appeared with her attorney. (Tr. 23) During
the hearing, the ALJ heard testimony from Ms. Niceschwander and a vocational expert
(“VE”). (Tr. 23-37)
The ALJ issued a decision on June 20, 2012, finding that Ms. Niceschwander was
not disabled under the Act. (Tr. 9-17) On May 24, 2013, the Appeals Council denied
Ms. Niceschwander’s request for review, making the ALJ’s decision the Commissioner’s
final decision. (Tr. 1-3)
Ms. Niceschwander was forty years old at the time of the hearing. (Tr. 28) She
was 5'7" tall and weighed approximately 307 pounds. (Tr. 27, 33) Ms. Niceschwander
had an associate’s degree in business management. (Tr. 28) She lived with her husband.
Decision of the Administrative Law Judge1
The ALJ found that Ms. Niceschwander had not engaged in substantial gainful
activity since her alleged disability onset date. (Tr. 11) And he found that Ms.
Niceschwander had the following severe impairments: asthma, COPD, gastroesophageal
reflux disease (“GERD”), carpal tunnel syndrome, sleep disorder, degenerative disc
disease, allergies, chronic dry eyes, pain of the head and neck, pain in the feet, and
The ALJ followed the required sequential analysis to determine: (1) whether the
claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)
met or equaled a listed impairment; and (4) if not, whether the impairment (or
combination of impairments) prevented the claimant from performing past relevant work;
and (5) if so, whether the impairment (or combination of impairments) prevented the
claimant from performing any other jobs available in significant numbers in the national
economy. 20 C.F.R. §§ 404.1520(a)-(g) (2005), 416.920(a)-(g) (2005).
obesity. (Tr. 11-12) The ALJ also found that Ms. Niceschwander did not have an
impairment or combination of impairments meeting or equaling an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1526, 416.926). (Tr. 12)
The ALJ determined that Ms. Niceschwander had the residual functional capacity
(“RFC”) to perform a reduced range of sedentary work. She could perform no overhead
reaching with her dominant upper extremity, and could have no exposure to loud noise,
extreme temperatures, humidity, and respiratory irritants. Ms. Niceschwander was
limited to work where interpersonal contact was incidental to the work performed, but she
could meet and greet the public, answer simple questions, accept payment, and make
change. She could perform work with a maximum Specific Vocational Profile of four,
with limited judgment. She would need little supervision for routine tasks, but detailed
supervision for non-routine tasks. (Tr. 12-15)
Ms. Niceschwander could not perform her past relevant work. (Tr. 15-16) Using
VE testimony, however, the ALJ determined Ms. Niceschwander could perform the jobs
of receptionist and information clerk. (Tr. 16-17) Accordingly, the ALJ found that Ms.
Niceschwander was not disabled. (Tr. 17)
Plaintiff’s Arguments for Reversal
Ms. Niceschwander claims the ALJ’s decision was not supported by substantial
evidence because: (1) the ALJ failed to acknowledge her alleged severe migraines; and
(2) the ALJ failed to fully develop the record. (#10)
In her disability application, Ms. Niceschwander did not list migraines or
headaches as conditions limiting her ability to work. (Tr. 180) The records show,
however, that she sought treatment for, and was assessed with, migraine headaches. (Tr.
412) Ms. Niceschwander also saw a neurologist with complaints of headaches. (Tr. 408)
The neurologist assessed Ms. Niceschwander with chronic daily headaches with a prior
history of intermittent migraines and prescribed medication. (Tr. 409)
At the administrative hearing, Ms. Niceschwander’s attorney stated that Ms.
Niceschwander’s daily migraine headaches were one of her main problems. (Tr. 26-27)
Ms. Niceschwander also testified to the severe limitations caused by her migraines. (Tr.
In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the record as a whole to support the decision. Boettcher v.
Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence is
“less than a preponderance, but sufficient for reasonable minds to find it adequate to
support the decision.” Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.
2005)). In reviewing the record as a whole, the Court must consider both evidence that
detracts from the Commissioner’s decision and evidence that supports the decision; but,
the decision cannot be reversed, “simply because some evidence may support the opposite
conclusion.” Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
31-32) Despite the fact that the migraines were assessed and treated in the medical
record, and were mentioned prominently at the administrative hearing, the ALJ never
even mentioned migraines or headaches in his decision. (Tr. 9-17)
It is not possible to determine, from this record, whether Ms. Niceschwander’s
headaches evidenced greater limitations than found in the ALJ’s RFC determination. Part
of assessing RFC involves considering a claimant’s subjective complaints. The ALJ did
not consider Ms. Niceschwander’s testimony regarding migraines. Without this
consideration, both the ALJ’s credibility assessment and RFC determination are
incomplete. Without a complete RFC determination, the ALJ could not properly rely on
the VE’s testimony. See Buckner v. Astrue, 646 F.3d 549, 561 (8th Cir. 2011) (VE
testimony constitutes substantial evidence only when it is in response to a hypothetical
that captures all the concrete consequences of a claimant’s impairments). Accordingly,
the Commissioner did not meet her burden, at step five, of identifying jobs that Ms.
Niceschwander was capable of performing.
Development of the Record
Ms. Niceschwander argues that the ALJ failed to develop the record regarding her
migraines. (#10) An ALJ has a duty to develop the record fairly and fully, independent
of the claimant’s burden to press his or her case. Vossen v. Astrue, 612 F.3d 1011, 1016
(8th Cir. 2010) (citation omitted). The duty to develop additional evidence arises only
when medical source evidence is inadequate to determine disability. Hacker v. Barnhart,
459 F.3d 934, 938 (8th Cir. 2006).
In this case, the medical source evidence is inadequate to determine the effect, if
any, that Ms. Niceschwander’s migraines would have on her RFC. On remand, the ALJ
should request a medical source statement or send Ms. Niceschwander for a consultative
examination to elicit evidence of any limitations caused by Ms. Niceschwander’s
After consideration of the record as a whole, the Court concludes that the ALJ
erred by failing to consider Ms. Niceschwander’s migraines. This failure calls into
question the ALJ’s RFC assessment and the vocational evidence. Without the vocational
evidence, the Commissioner’s decision is not supported by substantial evidence.
Therefore, the Commissioner’s decision is remanded for action consistent with this
opinion. This is a “sentence four” remand within the meaning of 42 U.S.C. § 405(g) and
Melkonyan v. Sullivan, 501 U.S. 89 (1991).
IT IS SO ORDERED, this 23rd day of June, 2014.
UNITED STATES MAGISTRATE JUDGE
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