Charney v. Colvin

Filing 21

ORDER denying 16 Preemptive Motion for Sentence 4 Remand by Judge John L. Kane on 07/22/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 14-cv-817-JLK
JOYCE CHARNEY,
Plaintiff,
v.
CAROLYN COLVIN, acting Commissioner of Social Security,
Defendant.

ORDER DENYING PREEMPTIVE MOTION FOR SENTENCE 4 REMAND
Kane, J.
This social security disability appeal is before me on Plaintiff’s Motion for Early
Remand under Sentence Four (Doc. 16). Plaintiff contends the ALJ misstated the record
as it pertained to the question of whether claimant met a medical listing for her migraines
such that his rejection of her disability claim at Step Three was erroneous. Specifically,
Plaintiff argues the ALJ’s statement that “no treating or examining physician has
suggested that the claimant’s impairments meet or equal a Medical Listing” was wrong
because Plaintiff’s treating neurologist, Dr. Beverly Gilder, did in fact opine that Plaintiff
met Medical Listing 11.03 regarding seizures/epilepsy, the most “analogous” listing for
migraine headaches. (Citing R. 472-79.)
I have reviewed the ALJ’s findings and the record excerpts cited by Plaintiff and
cannot, without more, agree that the ALJ misstated Dr. Gilder’s opinions or erred so

patently that a Sentence Four remand at this stage of the proceedings is appropriate. The
criteria for determining whether migraine headaches are a medically determinable
impairment are in flux and Dr. Gilder’s opinions are not as straightforward as Plaintiff
would have me believe. It may be that a Sentence Four remand is appropriate in this case
given Dr. Gilder’s diagnosis of migraines under criteria that may meet a Listing under the
operative regulatory interpretation, but further briefing on that issue is necessary.
Accordingly,
Plaintiff’s Motion for Early Remand (Doc. 16) is DENIED. Plaintiff may stand on
her Motion as her opening brief on appeal or may seek a modification of the operative
JCMP to file her brief out of time. If, after the Commissioner files her Response it
appears that the grounds for a Sentence 4 remand are manifest, then a remand at that point
may be appropriate without the need for a Reply.
Dated July 22, 2014.
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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