McShane v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on February 1, 2017. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
NANCY PARRY MCSHANE
CIVIL NO. 15-5137
NANCY A. BERRYHILL,
Acting Commissioner, Social Security Administration 1
Plaintiff, Nancy Parry McShane, brings this action pursuant to 42 U.S.C. § 405(g),
seeking judicial review of a decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying her claims for a period of disability and disability
insurance benefits (“DIB”) under the provisions of Title II of the Social Security Act (“Act”).
In this judicial review, the Court must determine whether there is substantial evidence in the
administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g).
Plaintiff protectively filed her application for DIB on November 7, 2011. (ECF No. 13,
p. 15). In her application, Plaintiff alleges disability due to bipolar disorder, depression, posttraumatic stress disorder (“PTSD”), anxiety, fibromyalgia, migraine headaches, attention
deficit hyperactivity disorder (“ADHD”), degenerative disc disease of the cervical and lumbar
spine, and chondromalacia. (ECF No. 13, p. 199). Plaintiff alleges an onset date of October 31,
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs
to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g).
2002. (ECF No. 13, p. 15, 195). This application was denied initially and again upon
reconsideration. (ECF No. 13, pp. 64-65).
Thereafter, Plaintiff requested an administrative hearing on her denied applications,
and this hearing request was granted. (ECF No. 13, p. 131, 145). Plaintiff’s administrative
hearing was held on October 31, 2013, in Fort Smith, Arkansas (ECF No. 13, pp. 37-63).
Plaintiff appeared and was represented by John Baker. Id. Plaintiff and Vocational Expert
(“VE”) Patty Kent testified at this hearing. Id. At the time of this hearing, Plaintiff was fiftytwo (52) years old, which is defined as a “person closely approaching advanced age” under 20
C.F.R. §§ 404.1563(d). (ECF No. 13, p. 43). As for her level of education, Plaintiff graduated
from college with a Bachelor’s degree in journalism. (ECF No. 13, p. 43).
After this hearing, on February 28, 2014, the ALJ entered an unfavorable decision
denying Plaintiff’s application for DIB. (ECF No. 13, pp. 12-29). In this decision, the ALJ
found Plaintiff met the insured status requirements of the Act through December 31, 2007.
(ECF No. 13, p. 17, Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since October 31, 2002, her alleged onset date. (ECF No. 13, p. 17, Finding
2). The ALJ determined Plaintiff had the following severe impairments: degenerative disc
disease, migraine headaches, chronic pain syndrome, osteoarthritis of the right shoulder, and
bipolar disorder. (ECF No. 13, pp. 17-18, Finding 3). Despite being severe, the ALJ determined
these impairments did not meet or medically equal the requirements of any of the Listings of
Impairments in Appendix 1 to Subpart P of Part 404 (“Listings”). (ECF No. 13, pp. 18-20,
The ALJ then considered Plaintiff’s Residual Functional Capacity (“RFC”). (ECF No.
13, pp. 20-27, Finding 5). First, the ALJ evaluated Plaintiff’s subjective complaints and found
her claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff
retained the RFC to perform “light work as defined in 20 C.F.R. 404.1567(b) except is limited
to jobs involving simple tasks and simple instructions, and should have only incidental contact
with the public.” (ECF No. 13, p. 20).
The ALJ then determined Plaintiff was unable to perform her Past Relevant Work
(“PRW”). (ECF No. 13, p. 27, Finding 6). The VE testified at the administrative hearing
regarding this issue. (ECF No. 13, pp. 57-63). Based on Plaintiff’s age, education, work
experience, and RFC, the ALJ determined there were jobs existing in significant numbers in
the national economy Plaintiff could perform, such as assembler of small products, a
housekeeper, and, within the larger category of general office clerks, a sedentary unskilled
office clerk. (ECF No. 13, pp. 27-28, Finding 10). Because jobs exist in significant numbers in
the national economy which Plaintiff can perform, the ALJ also determined Plaintiff had not
been under a disability, as defined by the Act, from October 31, 2002, through December 31,
2007, the date Plaintiff last met the insured requirements of the Act. (ECF No. 13, p. 28,
Thereafter, Plaintiff requested a review by the Appeals Council (ECF. No. 13, p. 11).
The Appeals Council denied this request on April 9, 2015. (ECF No. 13, pp. 6-9). On June 15,
2015, Plaintiff filed the present appeal with this Court. (ECF No. 1). The Parties consented to
the jurisdiction of this Court on January 25, 2016. (ECF No. 8). This case is now ready for
This Court’s role is to determine whether substantial evidence supports the
Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial
evidence is less than a preponderance but it is enough that a reasonable mind would find it
adequate to support the Commissioner’s decision. Teague v. Astrue, 638 F.3d 611, 614 (8th
Cir. 2011). We must affirm the ALJ’s decision if the record contains substantial evidence to
support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). As long as there is
substantial evidence in the record that supports the Commissioner’s decision, the court may
not reverse it simply because substantial evidence exists in the record that would have
supported a contrary outcome, or because the court would have decided the case differently.
Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other words, if after reviewing the
record it is possible to draw two inconsistent positions from the evidence and one of those
positions represents the findings of the ALJ, we must affirm the ALJ’s decision. Id.
A claimant for Social Security disability benefits has the burden of proving her
disability by establishing a physical or mental disability that has lasted at least one year and
that prevents her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274
F.3d 1211, 1217 (8th Cir. 2001); See also 42 U.S.C. §§ 423(d)(1)(A). The Act defines
“physical or mental impairment” as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3). A Plaintiff must show
that her disability, not simply her impairment, has lasted for at least twelve consecutive months.
See 42 U.S.C. §§ 423(d)(1)(A).
The Commissioner’s regulations require her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in
substantial gainful activity since filing her claim; (2) whether the claimant has a severe physical
and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet
or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from
doing past relevant work; and, (5) whether the claimant is able to perform other work in the
national economy given his age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4).
Only if she reaches the final stage does the fact finder consider Plaintiff’s age, education, and
work experience in light of his residual functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d
504, 505 (8th Cir. 2000); 20 C.F.R. §§ 404.1520(a)(4)(v).
Plaintiff argues the following issues on appeal: 1) The ALJ’s analysis of Plaintiff’s
severe migraine headaches is contrary to law and not supported by substantial evidence; and
2) The ALJ’s analysis of the medical opinion evidence of record is contrary to Agency policy
and Eighth Circuit precedent, and not supported by substantial evidence.
"For a claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria." Brown ex rel. Williams v. Barnhart, 388 F.3d 1150, 1152 (8th Cir.
2004) (internal quotations and citation omitted). Where the claimant suffers from an unlisted
impairment, the ALJ must compare the claimant’s impairment with an analogous listed
impairment. 20 C.F.R. § 404.1526. Furthermore, the question is whether the ALJ "consider[ed]
evidence of a listed impairment and concluded that there was no showing on th[e] record that
the claimant's impairments . . . m[et] or are equivalent to any of the listed impairments." Karlix
v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006) (internal quotations omitted). "The fact that the
ALJ d[oes] not elaborate on this conclusion does not require reversal [where] the record
supports h[is] overall conclusion." Id.
In the past, the Commissioner compared a claimant’s migraine headache symptoms to
Listing 11.03, because its criteria was closely analogous to migraine headache symptoms. See
Plaintiff’s Exhibit (ECF No. 12-1) (regarding SSA Q&A 09-028); See also Plaintiff’s Brief
(ECF No. 12, pp. 3-5) (discussing Program Operations Manual System: DI 24505.015(B)(7)(b)
where the Administration’s second example compares chronic migraine headaches to Listing
11.03). Although new rules took effect on September 29, 2016, the case at hand remains
governed by the rules in place during Plaintiff’s relevant period and the date of the ALJ’s
decision. See Revised Medical Criteria for Evaluating Neurological Disorders, 81 Fed. Reg.
43048-01 (July 1, 2016) (codified at 20 C.F.R. pt. 404). In the present case, the ALJ’s decision
is void of any evidence he compared Plaintiff’s migraine headache symptoms to any analogous
Listing criteria. The ALJ’s only discussion of Plaintiff’s migraine headache symptoms, after
determining they were a severe impairment, occurred when the ALJ addressed records from
the Headache Care Center:
From 2004 through 2008, [Plaintiff] was treated at the Headache Care Center
for both migraines and fibromyalgia pain. Treatment notes from the center show
that [Plaintiff] complained of varying pain and frequent headaches, sometimes
better, sometimes worse. . . . However, MRI of [Plaintiff’s] brain showed no
acute infarction, but multiple foci of signal abnormalities more prominent
involving the left cerebral hemisphere. Moreover, CT scan showed only stable
(ECF No. 13, p. 21) (internal citation omitted). Those same records, however, show Plaintiff
complained of having approximately twenty migraine headaches per month and caused at least
some interference with her activities during the day. (ECF No. 13, p. 388). They also show
Plaintiff’s migraine headaches included other symptoms such as photophobia, ringing in the
ears, and an aura. (ECF No. 13, pp. 388-89, 395). The ALJ cited Plaintiff’s April 4, 2005, MRI,
but left out one important part. (ECF No. 13, p. 21). While the ALJ is correct that the MRI
showed “no acute infarction” and “multiple foci of signal abnormality more prominent
involving the left cerebral hemisphere,” the document continues after the ALJ stops; “these are
nonspecific in appearance and can be seen in patients with multiple sclerosis and migraines.”
(ECF No. 13, pp. 410-11). Despite the evidence in the record, the ALJ failed to fully examine
and analyze Plaintiff’s migraine headache symptoms at step three of the sequential evaluation
After examining the record as a whole this Court finds that the ALJ’s determination at
step three of the sequential evaluation process was not based on substantial evidence in the
record as a whole.
RFC Determination and Medical Opinion Evidence
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545.
It is assessed using all relevant evidence in the record. Id. This includes medical records,
observations of treating physicians and others, and the claimant’s own descriptions of her
limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart,
390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from symptoms such as pain are also
factored into the assessment. 20 C.F.R. § 404.1545(a)(3). The United States Court of Appeals
for the Eighth Circuit has held that a “claimant’s residual functional capacity is a medical
question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ’s
determination concerning a claimant’s RFC must be supported by medical evidence that
addresses the claimant’s ability to function in the workplace. Lewis v. Barnhart, 353 F.3d 642,
646 (8th Cir. 2003). “[T]he ALJ is [also] required to set forth specifically a claimant’s
limitations and to determine how those limitations affect his RFC.” Id.
The evaluation of a mental impairment is often more complicated than the evaluation
of a claimed physical impairment. Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996).
Evidence of symptom-free periods, which may negate the finding of a physical disability, do
not compel a finding that disability based on a mental disorder has ceased. Id. Mental illness
can be extremely difficult to predict, and remissions are often of “uncertain duration and
marked by the impending possibility of relapse.” Id. Individuals suffering from mental
disorders often have their lives structured to minimize stress and help control their symptoms,
indicating that they may actually be more impaired than their symptoms indicate. Hutsell v.
Massanari, 259 F.3d 707, 711 (8th Cir.2001); 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 12.00(E).
This limited tolerance for stress is particularly relevant because a claimant’s RFC is based on
their ability to perform the requisite physical acts day in and day out, in the sometimes
competitive and stressful conditions in which real people work in the real world.” McCoy v.
Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (abrogated on other grounds).
As we have frequently noted, “treating physician opinions may receive limited weight
if they are conclusory or inconsistent with the record.” Julin v. Colvin, 826 F.3d 1082, 1088
(8th Cir. 2016). The ALJ may afford a treating source's opinion "controlling weight" if that
opinion "'is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the applicant's]
record.'" Wagner v. Astrue, 499 F.3d 842, 848–49 (alteration in original) (quoting 20 C.F.R. §
404.1527(d)(2)). "[W]hile a treating physician's opinion is generally entitled to 'substantial
weight,' such an opinion does not 'automatically control' because the hearing examiner must
evaluate the record as a whole." Id. at 849 (quoting Wilson v. Apfel, 172 F.3d 539, 542 (8th
Cir. 1999)). When a treating physician's opinion is in conflict with other substantial medical
evidence, then the ALJ may afford less weight to that physician's opinion. Id. (citing Prosch v.
Apfel, 201 F.3d 1010, 1013–14 (8th Cir. 2000)).
The ALJ gave little weight to Plaintiff’s treating psychiatrist, Dr. Julie Warren. (ECF
No. 13, p. 25). The ALJ stated:
Dr. Warren’s opinions have been given little weight. Not only are her opinions
contradicted by [Plaintiff’s] own activities and allegations, they are inconsistent
with the evidence of [the] record as a whole. The evidence of record indicates
that during this period, [Plaintiff] was gardening, taking multiple family
vacations, volunteering at her church, and working out. These are all activities
that require a higher level of functioning than the doctor opined the claimant
capable of performing.
(ECF No. 13, p. 25). Although the ALJ cited an inconsistency with the record as a whole, the
ALJ’s discussion of the evidence is itself inconsistent. The ALJ noted that Plaintiff had
suffered from one or more mental health impairments at least as early as 2001, and that in
August of 2003, Plaintiff began taking anti-depressant medication. (ECF No. 13, p. 22). The
ALJ discussed evidence Plaintiff’s depression had become so debilitating she presented to the
emergency room in April of 2006, and was thereafter admitted to the adult crisis unit at Burrell
Behavioral Health. Id. Plaintiff was diagnosed with chronic major depressive disorder and rule
out bipolar affective disorder not otherwise specified. (ECF No. 13, p. 337). The phrase “rule
out” in a medical record means that the disorder is suspected, but not confirmed – i.e., there is
evidence that the criteria for a diagnosis may be met, but more information is needed in order
to rule it out. See United States v. Grape, 549 F.3d 591, 593 n.2 (3d Cir. 2008). The evidence
of record also shows Plaintiff was taking multiple medications for mental impairments
throughout the relevant period and immediately after, such as Trazodone, Wellbutrin,
Cymbalta, Lamictal, Depakote, Buspar, and Xanax. (ECF No. 13, pp. 48, 324-29, 516, 745).
The ALJ noted points in time where Plaintiff was doing better, but declined to discuss those
points in time when Plaintiff was doing worse such as when her problems worsened on August
26, 2003, or on October 20, 2006. (ECF No. 13, pp. 326, 366). Despite recognizing Plaintiff’s
mental impairments as severe and existing both prior to and after the relevant period, the ALJ
has cherry picked instances where Plaintiff reported doing somewhat better, rather than
evaluating all of the evidence in the record as a whole.
The ALJ also focuses primarily on Plaintiff’s activities in discounting her allegations
of psychological impairment and the opinion of Dr. Warren. The ALJ determined Plaintiff’s
activities were inconsistent with the type of mental health symptoms Plaintiff alleged. (ECF
No. 13, pp. 19, 24-25). The ALJ, however, did not compare Plaintiff’s activities to the
symptoms of which Plaintiff complained. For example, the ALJ noted that taking family
vacations was inconsistent with allegations of a disabling psychological impairment, but
evidence in the record indicates Plaintiff had more than a minimal amount of difficulty during
those vacations. On April 2, 2004, Dr. Richard Cunningham noted Plaintiff had “been doing
reasonably well,” but worsened after going on a trip. (ECF No. 13, p. 325). On June 12, 2006,
Plaintiff reported to her therapist at Burrell Behavioral Health that she experienced more stress
and had more difficulty after taking a vacation. (ECF No. 13, p. 335, 355). Plaintiff reported
to her therapist on August 14, 2006, that a trip she took to visit one of her sisters actually made
her condition worse. (ECF No. 13, p. 362). Plaintiff was apprehensive with her therapist on
March 2, 2007, about an upcoming vacation and her therapist remarked, “[w]e spent the
majority of the session discussing the upcoming vacation that she will be going on with her
family. It was a similar trip last year that prompted a severe episode of depression and a
hospitalization.” (ECF No. 13, p. 373). The ALJ also cited Plaintiff’s activities with her church,
but did not attempt to reconcile those activities with Plaintiff’s complaints to her mental
healthcare providers. For example, one of Plaintiff’s symptoms was “that she cannot say ‘no’
to anyone.” (ECF No. 13, p. 334). Records from July 12, 2006, indicate Plaintiff “was working
too much doing volunteer work at her church,” which when combined with other stressors
Plaintiff “became overwhelmed with this.” (ECF No. 13, p. 358). The same record states,
“[Plaintiff] had another depressive episode last May, 2006, after taking a trip with her family.”
Id. Plaintiff need not prove that her symptoms preclude all productive activity and confine her
to life in front of the television. Baumgarten v. Chater, 75 F.3d 366, 369 (8th Cir. 1996); See
also Burress v. Apfel, 141 F.3d 875, 881 (8th Cir. 1998) (holding that the ability to wash dishes,
cook, dust, sweep, make beds, vacuum one room at a time, do the laundry, drive a motor
vehicle moderate distances, care for pets, visit with others, and to read and watch television
were not necessarily inconsistent with Plaintiff’s subjective complaints). The fact that Plaintiff
attempts to maintain her home, engage in an ordinary life, and travel with her family for
relaxation is not necessarily inconsistent with Plaintiff’s complaints, and in no way directs a
finding she is able to engage in light, unskilled, work. The ALJ’s duty is to determine whether
Plaintiff has “the ability to perform the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real people work in the real world.”
Draper v. Barnhart, 425 F.3d 1127, 1131 (8th Cir. 2005).
This Court also finds the ALJ’s speculative treatment of the opinion evidence in the
record troubling. With regard to the opinion of Dr. Warren, the ALJ sated:
As with many of the other opinions of record, the possibility always exists that
a doctor may express an opinion in an effort to assist a patient with whom he or
she sympathizes for one reason or another. Another reality that should be
mentioned is that patients can be quite insistent and demanding in seeking
supportive notes or reports from their physicians, who might provide such a
note in order to satisfy their patients’ requests and avoid unnecessary
doctor/patient tension. While it is difficult to confirm the presence of such
motives, they are more likely in situations where the opinion in question departs
substantially from the rest of the evidence of record, as in the current case.
(ECF No. 13, p. 25). The ALJ’s accusations are not only purely speculative but are directly
contradicted by Dr. Warren’s own opinions. Dr. Warren provided multiple opinions on the
record but one in particular, dated approximately seven months prior to Plaintiff’s
administrative hearing, is especially revealing. (ECF No. 13, pp. 1191-92). Dr. Warren
provided a letter on March 15, 2013, opining as to Plaintiff’s psychological impairments. Id.
In it, she cited Plaintiff’s diagnoses as bipolar disorder, type 2, with ultra-rapid cycling, anxiety
disorder with agoraphobia, and PTSD. Id. at 1191. Dr. Warren stated, “It was clear from early
in our work together that [Plaintiff] would need to apply for disability. However, I believe she
was never appropriately encouraged in that direction, ironically, because she had multiple
physicians and therapists involved in her treatment. . . . I had discussed the possibility of
applying as early as 08/11/2006.” Id. In direct contradiction of the ALJ’s speculative discussion
of Dr. Warren’s motives, she continued:
I have a policy of waiting until I have seen a patient for 6 months before I write
any letters in support of their application. Unfortunately, I assumed that
[Plaintiff] was moving ahead with her application. We even talked on several
occasions about how difficult it was for her to concentrate and work on
completing the task, and about how much her own personal sense of ‘failure’
was getting in the way of pursuing the help we both thought she needed.
Id. In formulating her opinion, Dr. Warren stated that she had thoroughly reviewed her own
notes as well as those provided by other healthcare providers and that she had personally met
with Plaintiff on more than twenty occasions for evaluation and therapy. Id. at 1192. Dr.
Warren closed her letter by stating, “I strongly support [Plaintiff’s] application for disability
benefits,” and if the ALJ were in any doubt as to the motive behind Dr. Warren’s opinion or
its disparity with objective evidence in the record, Dr. Warren offered to, “gladly testify
remotely, if possible, at your convenience.” Id. The ALJ similarly discounted the opinion of
Plaintiff’s psychologist Suzanne McKenna based on the same speculative analysis of Ms.
McKenna’s motive. (ECF No. 13, p. 26). Plaintiff’s administrative hearing was held on
October 31, 2013, and the record does not contain any indication the ALJ sought clarification
on Dr. Warren’s opinion or that she was asked to testify at the hearing on Plaintiff’s behalf, as
her letter indicated she was willing to do. (ECF No. 13, pp. 37, 1192).
The ALJ gave “the greatest weight” to the non-examining State agency consultants,
and commented, “[t]hese expert opinions are balanced, objective, and consistent with the
objective medical evidence of record.” (ECF No. 13, p. 24). The ALJ, however, discounted
every treating source’s opinion, the same treating sources which provided the vast majority of
the objective evidence in the record concerning Plaintiff’s psychological impairments upon
which all of the opinions in the record were based. (ECF No. 13, p. 24). Dr. Warren and Ms.
McKenna were treating sources for Plaintiff’s psychological impairments, and disregarding
their opinion leaves little to no evidence in the record on the issue. The ALJ, therefore, should
have specifically discussed the remaining objective evidence upon which he based his RFC
determination. See Pratt v. Sullivan, 956 F.2d 830, 834 (8th Cir. 1992) (per curiam) (reversible
error for ALJ to substitute his own conclusions for diagnosis of examining psychiatrist); See
also DiMasse v. Barnhart, 88 Fed.Appx. 956, 957 (8th Cir. 2004) (per curiam) (unpublished).
Therefore, this Court finds the ALJ has not set forth a sufficient basis for determining
Dr. Warren’s opinion was conclusory or inconsistent with the record, and that, for the reasons
discussed herein, the ALJ’s RFC determination was not based on substantial evidence in the
record as a whole.
Based on the foregoing, on remand the ALJ is ordered to examine whether Plaintiff’s
migraine headaches, whether alone or in combination with her other impairments, are of a
severity to meet or medically equal the criteria of an impairment in the Listings, and the ALJ
shall give particular consideration to the closely analogous neurological impairments in Listing
11.00. Then, should the ALJ determine Plaintiff’s migraine headaches alone or in combination
with her other impairments do not meet or medically equal the severity of one of the
impairments in the Listings, the ALJ shall re-evaluate Plaintiff’s RFC with citation to specific
examples of substantial evidence in support.
When determining Plaintiff’s RFC, the ALJ shall also re-examine the weight given to
Plaintiff’s treating physicians in connection with the objective evidence in the record as a
whole, and provide specific analysis of the longitudinal evidence of Plaintiff’s psychological
impairments, including her documented periods of improvement, decompensation, treatment
success with medication, medication side effects, and other evidence informative of Plaintiff’s
ability to engage in work-like tasks on a sustained basis during the relevant period. If the ALJ
determines Plaintiff’s impairments, such as her migraine headaches, alone or in combination,
would result in Plaintiff requiring unscheduled days off, unscheduled breaks, problems with
persistence or pace, or would otherwise require Plaintiff to be off-task during work, the ALJ
shall specify as such in his RFC determination. Then, should the ALJ determine Plaintiff
cannot return to her PRW, the ALJ shall procure the expert testimony of a VE and present to
him or her a hypothetical question which includes those impairments that the ALJ finds are
substantially supported by the record as a whole and are indicated in the ALJ’s RFC
Accordingly, having carefully reviewed the record, the undersigned finds that the ALJ's
decision is not supported by substantial evidence, and therefore, the denial of benefits to
Plaintiff should be and hereby is reversed and remanded to the Commissioner for further
consideration pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED this 1st day of February, 2017.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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