Haughie v. Commissioner of Social Security

Filing 23

OPINION AND ORDER affirming the decision of the Commissioner of Social Security. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Magistrate Judge Mac R. McCoy on 12/27/2017. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JILL HAUGHIE,
Plaintiff,
v.

Case No: 2:16-cv-770-FtM-MRM

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Before the Court is Plaintiff Jill Haughie’s Complaint (Doc. 1) filed on October 17, 2016.
Plaintiff seeks judicial review of the final decision of the Commissioner of the Social Security
Administration (“SSA”) denying her claim for a period of disability and disability insurance
benefits. The Commissioner filed the Transcript of the proceedings (hereinafter referred to as
“Tr.” followed by the appropriate page number), and the parties filed legal memoranda in
support of their positions. For the reasons set out herein, the decision of the Commissioner is
AFFIRMED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.

Social Security Act Eligibility, the ALJ Decision, and Standard of Review
A.

Eligibility

The law defines disability as the inability to do any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905.
The impairment must be severe, making the claimant unable to do her previous work or any
other substantial gainful activity that exists in the national economy. 42 U.S.C. §§ 423(d)(2),

1382c(a)(3); 20 C.F.R. §§ 404.1505 - 404.1511, 416.905 - 416.911. Plaintiff bears the burden of
persuasion through step four, while the burden shifts to the Commissioner at step five. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
B.

Procedural History

On May 10, 2013, Plaintiff filed an application for disability insurance benefits. (Tr. at
90, 185-86). Plaintiff asserted an onset date of July 8, 2012. (Id. at 185). Plaintiff’s application
was denied initially on August 13, 2013 and on reconsideration on October 4, 2013. (Id. at 90,
106). A hearing was held before Administrative Law Judge (“ALJ”) Marty Turner on January
26, 2015. (Id. at 31-79). The ALJ issued an unfavorable decision on March 24, 2015. (Id. at 1226). The ALJ found Plaintiff not to be under a disability from July 8, 2012, through the date of
the decision. (Id. at 26).
On August 12, 2016, the Appeals Council denied Plaintiff’s request for review. (Id. at 15). Plaintiff filed a Complaint (Doc. 1) in the United States District Court on October 17, 2016.
This case is ripe for review. The parties consented to proceed before a United States Magistrate
Judge for all proceedings. (See Doc. 12).
C.

Summary of the ALJ’s Decision

An ALJ must follow a five-step sequential evaluation process to determine if a claimant
has proven that she is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir.
2013) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). 1 An ALJ must determine
whether the claimant: (1) is performing substantial gainful activity; (2) has a severe impairment;

1

Unpublished opinions may be cited as persuasive on a particular point. The Court does
not rely on unpublished opinions as precedent. Citation to unpublished opinions on or after
January 1, 2007 is expressly permitted under Rule 31.1, Fed. R. App. P. Unpublished opinions
may be cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.

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(3) has a severe impairment that meets or equals an impairment specifically listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) can perform her past relevant work; and (5) can perform
other work of the sort found in the national economy. Phillips v. Barnhart, 357 F.3d 1232, 123740 (11th Cir. 2004). The claimant has the burden of proof through step four and then the burden
shifts to the Commissioner at step five. Hines-Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913,
915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff met the insured status requirements through June 30, 2015.
(Tr. at 14). At step one of the sequential evaluation, the ALJ found that Plaintiff had engaged in
substantial gainful activity during the following period: October 2012 through March 2013.
(Id.). The ALJ further found that there had been a continuous 12-month period during which
Plaintiff did not engage in substantial gainful activity and the ALJ addressed this period in the
decision. (Id. at 15). At step two, the ALJ found that Plaintiff suffered from the following
severe impairments: seizure disorder, migraine headaches, anxiety, and depression (20 C.F.R. §
404.1520(c)). (Id.). At step three, the ALJ determined that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and
404.1526). (Id. at 15).
At step four, the ALJ found the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as defined
in 20 [C.F.R. §] 404.1567(c), with limitations. She cannot climb ladders, ropes or
scaffolds. She cannot be exposed to workplace hazards such as unprotected heights
and operating hazardous machinery. She can understand, remember and carry out
simple and low-level detailed work instructions. She can only occasionally interact
with the general public.
(Id. at 17).

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The ALJ determined that Plaintiff was unable to perform her past relevant work as a
registered nurse or real estate manager. (Id. at 24). Through the date last insured, the ALJ
considered Plaintiff’s age, education, work experience, and residual functional capacity, and
found that there were jobs that existed in significant numbers in the national economy that
Plaintiff could perform. (Id. at 24-26). The ALJ noted that the vocational expert identified five
types of jobs that Plaintiff was able to perform, namely: (1) hospital cleaner, DOT # 323.687010; (2) janitor, DOT # 381.687-018; (3) dishwasher, DOT # 318.687-010; (4) housekeeper,
DOT # 323.687-014; and (5) office helper, DOT # 239.567-010. (Id. at 25). 2 The ALJ
concluded that Plaintiff was not under a disability at any time from July 8, 2012, through the date
of the decision. (Id. at 26).
D.

Standard of Review

The scope of this Court’s review is limited to determining whether the ALJ applied the
correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988), and whether
the findings are supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. §405(g). Substantial evidence is more than a scintilla—i.e., the evidence
must do more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the conclusion.
Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982); Richardson, 402 U.S. at 401).
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and
2

“DOT” refers to the Dictionary of Occupational Titles.

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even if the reviewer finds that “the evidence preponderates against” the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932
F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole, taking
into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560;
accord Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must scrutinize the entire
record to determine reasonableness of factual findings).
II.

Analysis
On appeal, Plaintiff raises the following issue: Whether the ALJ erred in failing to

evaluate whether Plaintiff’s migraine headache condition equaled a listed impairment. (Doc. 19
at 5). Specifically, within this one issue, Plaintiff argues that the ALJ (1) erred in failing to
consider whether Plaintiff’s migraine headaches met a listing and (2) erred in failing to find that
Plaintiff’s migraine headaches met Listing 11.03. (Id. at 6-9). 3 Conversely, the Commissioner
claims that the ALJ properly considered Plaintiff’s impairments as step three of the sequential
evaluation and properly found that Plaintiff’s migraine headache condition did not meet or equal
Listing 11.03. (Doc. 21 at 5-10). The Court addresses each of these issues in turn.
A.

Whether ALJ Considered Migraine Headache Condition at Step Three

Plaintiff asserts that the ALJ has the responsibility to determine whether Plaintiff’s
impairments meet or medically equaled a listing. (Doc. 19 at 5). Plaintiff also asserts that at step
two, the ALJ found that Plaintiff had the severe impairment of migraine headaches, yet at step
three, the ALJ found that none of Plaintiff’s impairments or combination of impairments met or
3

Although Plaintiff asserts in one sentence that “ the ALJ was required to consider the
migraines pursuant to Listing 11.02 and/or 11.03” – other than this brief mention – Plaintiff
never discusses Listing 11.02. (Doc. 19 at 6). In fact, Plaintiff’s entire analysis refers to Listing
11.03 only. (Id. at 7-9). Thus, the Court’s analysis focuses on whether Plaintiff meets the
requirements of Listing 11.03.

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medically equaled a listing. (Id. at 6). Plaintiff claims that the ALJ’s failure to consider whether
Plaintiff’s migraine headaches met or medically equaled a list was not harmless error. (Id.). The
Commissioner argues that the ALJ is not required to specifically state which listings he
considered and the ALJ’s decision supports the conclusion that Plaintiff’s migraine headaches
did not meet or medically equal a listing. (Doc. 21 at 5).
“The Listing of Impairments describes, for each of the major body systems, impairments
which are considered severe enough to prevent a person from doing any gainful activity.”
Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (citing 20 C.F.R. § 404.1525(a)). An
ALJ is not required to “mechanically recite the evidence” when determining whether a plaintiff’s
impairments meet or medically equal any of the listings. Hutchison v. Bowen, 787 F.2d 1461,
1463 (11th Cir. 1986). “There may be an implied finding that a claimant does not meet a
listing.” Id. When an ALJ states that a plaintiff does not have an impairment or combination of
impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, this statement
constitutes evidence that the ALJ considered the combined effects of a plaintiff’s impairments.
Wilson, 284 F.3d at 1224.
In the instant case, the ALJ’s decision at step three reads in relevant part as follows:
The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
[C.F.R.] Part 404, Subpart P, Appendix 1 (20 [C.F.R. §§] 404.1520(d), 404.1525
and 404.1526). The undersigned has carefully considered the claimant’s
impairments singly and in combination, and finds she has not satisfied the
requirements of any listed impairments. No physician or specialist indicated the
claimant’s impairments met or medically equaled a listed impairment described in
Appendix 1 of the Regulations (20 [C.F.R.], Subpart P, and Appendix 1).
Additionally, the State agency physicians who evaluated the evidence did not find
she had an impairment or combination of impairments that met or medically
equaled one of the listed impairments. No subsequent evidence has been submitted
that would alter the previous conclusion that the claimant does not have an
impairment or combination of impairments severe enough to meet or equal a listing.

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(Tr. at 15-16). Thus, under Wilson and Hutchison, supra, the ALJ’s statement that he considered
Plaintiff’s impairments singly and in combination when determining that Plaintiff’s impairments
did not meet or medically equal a listing constitutes evidence that the ALJ adequately considered
whether Plaintiff’s impairments, including her migraine headache condition, met or medically
equaled Listing 11.03. Wilson, 284 F.3d at 1224; Hutchison, 787 F.2d at 1463. 4
In addition, the ALJ considered Plaintiff’s allegations regarding her migraine headaches
as well as the related medical evidence of record. (Tr. at 18-21). The ALJ noted that while
Plaintiff has been diagnosed with seizure and migraine headache impairments, the evidence
shows that she did not seek or receive much treatment for these impairments in the year
preceding her onset date, and that her migraine headaches were controlled to a great extent by
her medication without severe adverse side effects. (Id. at 18).
The ALJ’s decision included the following summary of Plaintiff’s medical evidence
concerning her migraine headache condition. On Plaintiff’s October 5, 2012 visit to
Neuroscience and Spine Associates, Plaintiff reported that she had not had any headaches since
her seizure incident. (Id. at 19). At that visit, Plaintiff was diagnosed with seizure and nonintractable migraine headache disorders. (Id.). On her October 29, 2012 visit, Plaintiff reported
that she had not had any seizures since her last visit, but had some headaches that were usually
nocturnal in nature. (Id.). At her next visit on February 18, 2013, Plaintiff reported her
headaches were better. (Id.). At her next visit over four months later on June 25, 2013, Plaintiff
4

Plaintiff asserts that courts in other districts suggest that the ALJ’s failure at step three
to specifically indicate that he considered Listing 11.03 is reversible error, citing Mann v. Colvin,
100 F. Supp. 3d 710, 720 (N.D. Iowa 2015), Edwards v. Colvin, No. 3:14-CV-05338-KLS, 2014
WL 7156846, at *3 (W.D. Wash. Dec. 15, 2014), and Means v. Colvin, No. 2:15-CV-01107TFM, 2016 WL 3386814, at *6 (W.D. Pa. June 20, 2016). (Doc. 19 at 8). These cases, however,
are not binding on this Court and are contrary to the binding precedent in Hutchinson and
Wilson, cited supra.

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reported that her medication was controlling her seizures and also controlling her daytime
headaches to a great extent. (Id.). In that record, Plaintiff complained of occasional nausea,
weakness, fatigue, and numbness. (Id.). Plaintiff was noted to be fully alert, oriented, pleasant,
cooperative, and in no acute distress—with her appearance, cognitive functioning, and physical
examination to be completely normal. (Id.). Plaintiff reported that she had significant nighttime
headaches that were relieved to some extent by aspirin. (Id.). Plaintiff was prescribed additional
low dose medication for her nighttime headaches to help her sleep. (Id.).
From July 2013 to February 2014, Plaintiff was treated at Lee County Healthcare
Center/VA for her migraine headache impairment and, at these visits, Plaintiff’s appearance,
cognitive functioning, physical examinations, diagnosis, and treatment plan remained the same,
but Plaintiff did complain of nighttime headaches and reported that she did not always take her
medications as directed. (Id. at 20). Plaintiff visited Cleveland Clinic Neurology on March 24,
2014, and was again noted to be fully alert and oriented, to have a full affect, and intact cognitive
and memory functioning with her physical examination to be completely normal from a
neurological and musculoskeletal standpoint. (Id.). Plaintiff was diagnosed with “suspect
epilepsy, not further characterized, two seizures over the past twenty-five years, mostly off
medications,” and analgesic rebound headaches, and insomnia. (Id.). Plaintiff was advised: (1)
that taking too much aspirin could cause her headaches; and (2) to stop taking too much aspirin.
(Id.). Her medications were altered to attempt to improve her headaches. (Id.). From March 25,
2014 to October 27, 2014, Plaintiff was treated at Lee County Healthcare Center/VA, and these
records indicate that Plaintiff’s mental and physical condition did not deteriorate to any
significant extent. (Id.).

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At her October 28, 2014 visit to Neuroscience and Spine Associates, Plaintiff did not
complain of headaches, but did report she had “funny feelings in her head,” and occasionally had
migraines as well. (Id.). Again, Plaintiff was found to be fully alert, oriented, healthy, wellnourished, well-developed, and in no acute distress with her cognitive functioning and physical
examination to be completely normal in all regards. (Id.). From October 29 to December 2014,
Plaintiff was treated at Lee County Healthcare Center/VA, and these records indicate that her
mental and physical condition had not deteriorated to any significant extent. (Id.). According to
the evidence of record, Plaintiff had not sought or received any treatment for migraine headaches
from December 2014 to the date of the decision on March 25, 2015. (Id. at 21). Further,
Plaintiff testified that she started new medication in December 2014 and was doing better at the
time of the hearing on January 26, 2015. (Id.).
After the ALJ summarized the evidence, he determined that “the evidence does not
document the severe and disabling symptoms the claimant alleges she suffers from because of
her seizure and migraine headache problems. Instead, it indicates she has relatively few
symptoms or problems because of the same, and they are controlled by her medications to a great
extent without severe adverse medicinal side effects, despite her allegations to the contrary.”
(Id.).
The Court considered the decision and the ALJ’s thorough review of Plaintiff’s medical
records as they relate to her migraine headache impairment. Even though the ALJ did not
specifically mention Listing 11.03 at step three, the ALJ considered the medical evidence
relating to Plaintiff’s migraine headache impairment and, at a minimum, impliedly determined
that her impairment did not meet a listing. Accordingly, the Court finds that the ALJ considered
all of Plaintiff’s impairments singly and in combination at step three and did not err in failing to

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specifically mention Plaintiff’s migraine headache impairment or the evidence supporting this
impairment at that step in the sequential evaluation.
B.

Whether Plaintiff’s Migraine Headache Condition Met or Medically Equaled
Listing 11.03

Plaintiff argues that the ALJ erred in determining that Plaintiff’s migraine headache
condition did not meet Listing 11.03. (Doc. 19 at 7-8). The Commissioner contends that
Plaintiff failed to establish that her condition met or medically equaled Listing 11.03.
At step three – to meet the requirements of a listing – a plaintiff must “have a medically
determinable impairment(s) that satisfies all of the criteria in the listing.” 20 C.F.R. §
404.1525(d). The Listings of Impairments in the Social Security Regulations identifies
impairments that are considered severe enough to prevent a person from engaging in gainful
activity. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. If a plaintiff can meet a listed impairment or
otherwise establish an equivalence, then a plaintiff is presumptively determined to be disabled,
and the ALJ’s sequential evaluation of a claim ends. Edwards v. Heckler, 736 F.2d 625, 626
(11th Cir. 1984). If an impairment manifests only some of the criteria, then it does not qualify,
no matter how severe the impairment. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). The burden
is on a plaintiff to show that she meets the Listings. Wilkinson on Behalf of Wilkinson v. Bowen,
847 F.2d 660, 662 (11th Cir. 1987).
To meet a listing, a plaintiff must have a diagnosis included in the Listings, and “must
provide medical reports documenting that the conditions meet the specific criteria of the Listings
and the duration requirement.” Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (citing
20 C.F.R. § 1525(a)-(d)). “If a claimant has more than one impairment, and none meets or
equals a listed impairment, the Commissioner reviews the impairments’ symptoms, signs, and

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laboratory findings to determine whether the combination is medically equal to any listed
impairment.” Id. (citing 20 C.F.R. § 404.1526(a)).
As there is no specific listing for migraine headaches, the parties agree that the most
analogous listing is Listing 11.03 (Epilepsy) for medical equivalence. (Doc. 19 at 7; Doc. 21 at
6). 5 Listing 11.03 provides in relevant part as follows:
Non-convulsive epilepsy (petit mal, psychomotor, or focal), documented by
detailed description of a typical seizure pattern, including all associated
phenomena; occurring more frequently than once weekly in spite of at least 3
months of prescribed treatment. With alteration of awareness or loss of
consciousness and transient postictal manifestations of unconventional behavior or
significant interference with activity during the day.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.03 (2014). To determine whether a plaintiff’s migraine
headaches medically equal Listing 11.03, the parties agree that the Commissioner considers the
following factors:
•

A detailed description of a typical headache event pattern, including all associated
phenomena, e.g., premonitory symptoms, aura, duration, intensity, accompanying
symptoms, treatment.

•

Occurring with a frequency of more than once weekly.

•

Information about “alteration of awareness.” This means a condition of being
inattentive, or not cognizant of one’s surroundings and external phenomena as well as

5

The Commissioner notes that when the ALJ entered his decision in March 2015,
Listing 11.03 (Epilepsy) was the most analogous listing for considering medical equivalence.
(Doc. 21 at 6). As of September 29, 2016, the Commissioner revised the epilepsy criteria and
deleted listing 11.03. (Id.). After this revision, the most analogous listings appear to by Listing
11.02B and 11.02D for medical equivalence. (Id. at 6-7 n.3). Due to the ALJ’s decision here
being rendered prior to the revision, the Court determines that the most analogous listing is
former Listing 11.03 (Epilepsy) for medical equivalence.

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one’s personal state. Many psychotropic and neuroleptic medications used for
treating migraines can produce sedation, confusion, or inattention.
•

It is not necessary for a person with migraine headaches to have “alteration of
awareness” as long as she/he has an effect that significantly interferes with activity
during the day, e.g., a need for a darkened, quiet room, lying down without moving,
or a sleep disturbance that impacts on daytime activities.

See Q&A 09-036 Rev. 1.
The Court considered all of Plaintiff’s assertions in her Memorandum concerning her
migraine headaches. (Doc. 19 at 5-8). Plaintiff asserts that she experiences nightly headaches.
(Doc. 19 at 5; Tr. at 39, 882). Plaintiff claims that her headaches vary in strength and may start
at a 4-5 and escalate to a 10 on a scale of 1 to 10, and keep her awake anywhere from 1 to 3
hours at night. (Doc. 19 at 5; Tr. at 44). Plaintiff states that she reported poor broken sleep and
insomnia in July 2013. (Doc. 19 at 5; Tr. at 946). Plaintiff complained at the Cleveland Clinic
Neurology Department on March 24, 2014 of daily headaches, that rate at a level of 7-8 in the
morning and a 3 later in the day. (Doc. 19 at 5; Tr. at 961).
It bears repeating here that Plaintiff bears the burden of establishing that her impairment
of migraine headaches meets or medically equals Listing 11.03. Wilkinson on Behalf of
Wilkinson, 847 F.2d at 662. The Court finds that Plaintiff failed to meet her burden by failing to
demonstrate that Plaintiff’s migraine headaches cause an alteration of awareness or significantly
interfere with her activities of daily living. Q&A 09-036 Rev. 1. Plaintiff failed to indicate
what, if any, daily activities are affected by her migraine headaches.
Moreover, the ALJ exhaustively and thoroughly considered Plaintiff’s daily activities.
(Tr. at 22). The ALJ noted the following as to Plaintiff’s daily activities. Plaintiff lives alone

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and cares for her own personal needs without assistance and also cares for cats. (Id.). Further,
Plaintiff cooks, prepares simple meals, cleans, performs, household chores, does laundry, goes
outside, and exercises on a regular basis. (Id.). Plaintiff goes out alone, uses public
transportation, drives, shops, and manages her own finances. (Id.). Plaintiff also reads
extensively, spends several hours a day on her computer, watches television for hours at a time,
and listens to classical music on the radio. (Id.). In addition, Plaintiff gets along with family
members, friends, and others, communicates with some of them by telephone and on her
computer, attends family functions, participates in support and civic groups, attends community
events, and works in political campaigns. (Id.). Plaintiff also goes for rides, walks, hikes, out to
eat, to the movies, zoo and botanical gardens, and on trips. (Id.). Considering the amount and
breadth of Plaintiff’s daily activities, the Court finds that Plaintiff failed to meet her burden to
show that her migraine headaches significantly interfere with daily activities or cause an
alteration of awareness. Accordingly, the Court finds that the ALJ did not err in failing to find
that Plaintiff’s migraine headache impairment singly or in combination with Plaintiff’s other
impairments met a listing.
III.

Conclusion
Upon consideration of the submissions of the parties and the administrative record, the

Court finds that the decision of the ALJ is supported by substantial evidence and decided upon
proper legal standards.
IT IS HEREBY ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g). The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions and deadlines, and close the case.

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DONE AND ORDERED in Fort Myers, Florida on December 27, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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