Dial v. Commissioner of Social Security

Filing 21

MEMORANDUM OF DECISION. The final decision of the Commissioner is REVERSED and REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is directed to enter judgment for the Claimant and close the case. Signed by Magistrate Judge Leslie R. Hoffman on 9/14/2020. (MDH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JACQUELINE R. DIAL,
Plaintiff,
v.

Case No: 6:19-cv-1005-Orl-LRH

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Jacqueline R. Dial (“Claimant”) appeals the Commissioner of Social Security’s final
decision denying her application for disability benefits. (Doc. 1). The Claimant raises several
arguments challenging the Commissioner’s final decision and, based on those arguments, requests
that the matter be reversed and remanded for further proceedings. (Doc. 20 at 19-22, 29-32, 38).
The Commissioner argues that the Administrative Law Judge (“ALJ”) committed no legal error and
that his decision is supported by substantial evidence and should be affirmed. (Id. at 22-28, 32-38).
Upon review of the record, the Court finds that the Commissioner’s final decision is due to be
REVERSED and REMANDED for further proceedings.
I.

Procedural History
This case stems from the Claimant’s application for disability insurance benefits. (R. 185-

86). The Claimant alleged a disability onset date of August 18, 2014. (R. 185). The Claimant’s
application was denied on initial review and on reconsideration. The matter then proceeded before
an ALJ, who, after holding a hearing (R. 29-64), entered a decision on August 1, 2018 denying the
Claimant’s application for disability benefits. (R. 10-23). The Claimant requested review of the

ALJ’s decision, but the Appeals Council denied her request. (R. 1-3). This appeal followed.
II.

The ALJ’s Decision
In reaching his decision, the ALJ performed the five-step evaluation process set forth in 20

C.F.R. § 404.1520(a). 1 First, the ALJ determined that the Claimant’s last date insured was
December 31, 2019. (R. 12). Next, the ALJ found the Claimant suffers from the following severe
impairments: fibromyalgia, asthma, neurocardiogenic syncope, and migraine headaches. (R. 13).
The ALJ also found that the Claimant suffers from the following non-severe impairments: tremor,
anxiety, and memory loss. (R. 13-14). The ALJ, however, determined that the Claimant does not
have an impairment or combination of impairments that meets or medically equals any listed
impairment. (R. 14).
The ALJ next found that the Claimant has the residual functional capacity (“RFC”) to
perform light work as defined by 20 C.F.R. § 404.1567(b)2 with the following specific limitations:
[S]he can lift, carry, push and /or pull 20 pounds occasionally and 10 pounds
frequently. She can sit, stand, and walk up to 6 hours each out of an 8-hour workday.
She can occasionally climb ramps, stairs, ladders, ropes or scaffolds. She can
frequently balance. She can occasionally stoop, kneel, crouch and crawl. She can

1

An individual claiming Social Security disability benefits must prove that he or she is
disabled. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Jones v. Apfel, 190 F.3d
1224, 1228 (11th Cir. 1999)). The five steps in a disability determination include: (1) whether the
claimant is performing substantial, gainful activity; (2) whether the claimant’s impairments are
severe; (3) whether the severe impairments meet or equal an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1; (4) whether the claimant can return to his or her past relevant work;
and (5) based on the claimant’s age, education, and work experience, whether he or she could
perform other work that exists in the national economy. See generally Phillips v. Barnhart, 357
F.3d 1232, 1237 (11th Cir. 2004) (citing 20 C.F.R. § 404.1520).
2

Light work is defined as “lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, you must have the ability to do substantially all of
these activities.” 20 C.F.R. § 404.1567(a).
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occasionally be exposed to dust, odors, fumes, pulmonary irritants, vibration and
hazards, such as unprotected heights and moving machinery.
(R. 14). In light of this RFC, the ALJ found that the Claimant was able to perform her past relevant
work as a loan officer, accounting clerk supervisor, and accounting clerk. (R. 20-21). In addition,
the ALJ found the Claimant could perform other work in the national economy, including work as
a small parts assembler, cashier, and inspector/hand packager. (R. 21-22). Accordingly, the ALJ
concluded that the Claimant was not disabled between her alleged onset date (August 18, 2014)
through the date of the decision (August 1, 2018). (R. 22-23).
III.

Standard of Review
The scope of the Court’s review is limited to determining whether the Commissioner applied

the correct legal standards and whether the Commissioner’s findings of fact are supported by
substantial evidence. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The
Commissioner’s findings of fact are conclusive if they are supported by substantial evidence, 42
U.S.C. § 405(g), which is defined as “more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997). The Court must view the evidence as a whole, taking into account
evidence favorable as well as unfavorable to the Commissioner’s decision, when determining
whether the decision is supported by substantial evidence. Foote v. Chater, 67 F.3d 1553, 1560
(11th Cir. 1995). The Court may not reweigh evidence or substitute its judgment for that of the
Commissioner, and, even if the evidence preponderates against the Commissioner’s decision, the
reviewing court must affirm it if the decision is supported by substantial evidence. Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

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IV.

Analysis
The Claimant raises the following two assignments of error: 1) the ALJ did not adequately

discuss and account for the frequency, duration, and intensity of her migraine headaches in the RFC
determination; and 2) the ALJ’s decision to assign little weight to Dr. Howard S. Buchoff’s opinion
is not supported by substantial evidence. (Doc. 20 at 19-22, 29-32). The first assignment of error
is dispositive of this appeal.
The Claimant contends that the ALJ erred by failing to discuss the frequency, duration, and
intensity of her migraines and failing to explain whether her migraines resulted in any functional
limitations. (Id. at 19-22). Accordingly, the Claimant argues that the Court “cannot determine
whether the ALJ’s RFC determination included appropriate limitations on [the Claimant’s] ability
to work due to her severe migraines, and, subsequently, whether the ALJ’s finding that [the
Claimant] could perform her [past relevant work] and other ‘light’ work is supported by substantial
evidence.” (Id. at 22).
The Commissioner, who interprets the Claimant as having raised an argument challenging
the ALJ’s credibility determination, contends that the ALJ considered the frequency, duration, and
intensity of the Claimant’s migraines and found the Claimant’s testimony regarding the limiting
effects of her migraines not entirely credible. (Id. at 22-25). The Commissioner argues that the
ALJ’s credibility determination is supported by substantial evidence. (Id. at 25).

Further,

notwithstanding the ALJ’s credibility determination, the Commissioner contends that the ALJ
accounted for the Claimant’s migraines in the RFC determination by including environmental
limitations and limiting her to simple, routine, and repetitive tasks. (Id. at 27). Moreover, the
Commissioner notes that the Claimant has not identified any other limitations caused by her
migraines that should have been, but were not, included in the RFC determination. (Id. at 27-28).

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For these reasons, the Commissioner argues that the ALJ did not err when considering the
Claimant’s migraines and the impact of her migraines on her ability to function.
The ALJ is tasked with assessing a claimant’s RFC and ability to perform past relevant work.
Phillips, 357 F.3d at 1238. The RFC “is an assessment, based upon all of the relevant evidence, of
a claimant’s remaining ability to do work despite his impairments.” Lewis, 125 F.3d at 1440. In
determining a claimant’s RFC, the ALJ must consider all relevant evidence. See 20 C.F.R. §
404.1545(a)(3). 3
While it is not clear from the record when the Claimant began to suffer from migraine
headaches, the record shows that she complained of worsening migraines to her family physician,
Dr. Amy Jackson, on February 16, 2016 and again on March 14, 2016. (R. 516-23).
The Claimant subsequently treated with Dr. Daniel Nieves-Quinones, a neurologist, for
migraines and tremors on August 16, 2016 and September 16, 2016. (R. 616-23). During the
latter of those visits, the Claimant reported that her migraines initially occurred once or twice a
month, but recently began to occur on a daily basis and last the whole day. (R. 616). The Claimant
described the migraines as usually being dull, but could be severe, and that she becomes nauseous
and sensitive to light and sound. (Id.). Dr. Nieves-Quinones ordered an electroencephalogram
(“EEG”), which was normal, and an MRI of the brain, which the Claimant never completed. (Id.).
Dr. Nieves-Quinones assessed the Claimant with “[c]hronic migraine without aura, intractable, with
status migrainosus” and “[s]ignificant overuse component, currently has chronic daily persistent

3

The Commissioner too narrowly interprets the Claimant as challenging the ALJ’s
credibility determination. The Claimant’s argument focuses on the ALJ’s overall consideration of
her migraines, referencing both objective and subjective evidence in support of her position that the
ALJ did not properly consider and account for her migraine in the RFC determination. The Court
will therefore broadly consider whether the ALJ erred in considering the impact of her migraines on
his RFC determination.
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headache.” (R. 617-18). Dr. Nieves-Quinones prescribed the Claimant Topamax and Prednisone
for her migraines. (R. 618).
The Claimant saw Dr. Nieves-Quinones again on September 25, 2017. (R. 633-36).
During this visit, the Claimant reported that her migraines had been “stable” but worsened in recent
weeks. (R. 633). Specifically, the Claimant reported that she now suffers from severe migraines
three days a week, which last several hours or all day and are accompanied by nausea and sensitivity
to light and sound. (Id.). Dr. Nieves-Quinones’ assessment of the Claimant’s migraines remained
the same as before, but he increased her prescription for Topamax. (R. 634).
Finally, in December 21, 2017, the Claimant complained of worsening headaches to Dr.
Jackson. (R. 652). The Claimant reported that she continued to treat with Dr. Nieves-Quinones
(Id.), but the record does not contain any other treatment records from Dr. Nieves-Quinones or any
other treatment notes addressing her migraines.
At the hearing, the ALJ asked the Claimant about the frequency, pain, and other symptoms
associated with her migraines. (R. 44-45). In response, the Claimant testified that she went from
averaging one to three migraines a month to suffering migraines on a daily basis beginning in
November 2017. (Id.). As for the pain and symptoms associated with her migraines, the Claimant
testified that her head feels like it is in a vise and she becomes sensitive to light and sound, which
causes her to stay in a dark, quiet room. (R. 45).
In his decision, the ALJ discussed Dr. Nieves-Quinones’ treatment notes, noting, among
other things, that in September 2017 the Claimant complained that her migraines were becoming
more frequent. (R. 18). In addition, the ALJ recounted the Claimant’s testimony about her
migraines, noting that she was suffering from daily migraines, which caused her to shut herself in a
dark room. (R. 15).

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The Claimant first contends that the ALJ did not discuss the frequency, duration, and
intensity of her migraines. (Doc. 20 at 20-21). The Commissioner counters by arguing that the
ALJ is not required to make findings about the frequency, duration, and intensity of a claimant’s
headaches, and, even if he was, the ALJ “clearly addressed the frequency, duration, and intensity of
[the Claimant’s] migraine headaches when discounting her subjective complaints.” (Id. at 25- 26
(Delgross v. Colvin, No. 3:15-cv-367-J-JBT, 2016 WL 7242560, at *3 (M.D. Fla. Jan. 8, 2016)).
The Court agrees with the Commissioner on this first point, and finds that the ALJ did
discuss the frequency, duration, and intensity of the Claimant’s migraines. In so finding, the Court
recognizes that the ALJ did not expressly discuss every piece of evidence about the Claimant’s
migraines. However, it is axiomatic that the ALJ need not discuss each and every piece of evidence
in the record. See Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (“[T]here is no rigid
requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the
ALJ’s decision ... is not a broad rejection which is not enough to enable [the Court] to conclude that
[the ALJ] considered her medical condition as a whole.” (internal quotation marks omitted)). Here,
the ALJ discussed the Claimant’s testimony concerning her migraines, noting the frequency and
effects of her migraines, and treatment notes from Dr. Nieves-Quinones, who treated the Claimant’s
migraines. (R. 15, 18). The discussion of this evidence is sufficient to show that the ALJ
considered the frequency, duration, and intensity of the Claimant’s migraines. The problem,
however, lies in whether the ALJ included this consideration in his determination of the Claimant’s
RFC. Based on the present record, the Court cannot say that he has.
The Claimant next argues that it is impossible to ascertain from the ALJ’s decision whether
the ALJ properly accounted for the frequency, duration, and intensity of the Claimant’s migraines
(and any resulting limitations) in reaching his RFC determination and, therefore, reversal is

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appropriate. (Doc. 20 at 20-22 (citing Reis ex rel. Reis v. Astrue, No. 8:11-cv-2027-T-TGW, 2012
WL 3231092 (M.D. Fla. Aug. 6, 2012) and Battles v. Colvin, No. 8:15-cv-339-T-33TGW, 2016 WL
3360428 (M.D. Fla. May 20, 2016)). The Commissioner contends the ALJ properly found the
Claimant’s testimony about her migraines was inconsistent with other evidence of record, and,
notwithstanding this determination, accounted for the Claimant’s migraines by including
environmental limitations in the RFC determination and limiting her to simple, routine, and
repetitive tasks. (Id. at 24-28). The Court agrees with the Claimant that it is unclear whether the
ALJ, who found the Claimant’s migraines to be a severe impairment, accounted for the Claimant’s
migraines in the RFC determination.
The ALJ explains how he accounted for the Claimant’s various impairments in the context
of his credibility determination, stating:
Overall, the claimant’s statements about the intensity, persistence, and limiting
effects of her symptoms are not entirely consistent with the objective medical
evidence. The evidence shows that the claimant primarily suffers from fibromyalgia
pains characterized on the exams by positive tender point cites.
The
asthma/breathing disorder is mild to moderate on a chronic basis and controlled with
medication. However, there are infrequent episodic flare-ups. A pulmonary
function test when she was sick returned consistent with moderate restriction and the
physical exam findings generally do not include any significant respiratory
abnormalities. She has not been hospitalized for recurrent asthma attacks and she
has not been hospitalized for any reason since January 2015. The neurocardiogenic
syncope responded very well to Adderall and the records state that she was
asymptomatic with proper medication compliance. She has also treated migraine
headaches briefly. The records indicate that she responded well to some degree to
medication. The objective EEG was normal and the brain MRI that was ordered is
not in evidence. Lastly, aside from the medical evidence, the testimony and wage
records show that the claimant has been able to perform a significant amount of work
activity since the alleged onset date. The fibromyalgia pains are accommodated by
limiting the claimant to light exertion level work with the sitting, standing, walking
and postural limitations assigned. The respiratory impairment is accommodated by
limited her exposure pulmonary irritants.
(R. 18).

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A determination that the Claimant’s migraines are a severe impairment means the ALJ found
the migraines significantly limited the Claimant’s physical and/or mental ability to do basic work
activities. See 20 C.F.R. § 404.1520(c); Raduc v. Comm’r of Soc. Sec., 380 F. App’x 896, 898
(11th Cir. 2010) (“By definition, a severe impairment limits significantly a claimant’s ability to do
basic work activities.”).4 Given the import of this determination, several courts in this district have
determined that the ALJ must either include functional limitations in the RFC determination that
account for the claimant’s migraines/headaches or explain why no such limitations were included.
Hill v. Saul, No. 8:19-cv-121-T-TGW, 2020 WL 1430917, at *4 (M.D. Fla. Mar. 24, 2020); see
Gurske v. Comm’r of Soc. Sec., No. 6:17-cv-2050-Orl-DNF, 2019 WL 643722, at *3 (M.D. Fla.
Feb. 15, 2019); Battles, 2016 WL 3360428 at *3 ; Reis, 2012 WL 3231092, at *4. Where the ALJ
fails to do either, courts reverse and remand the ALJ’s decision for further proceedings. Id. 5

4

In the Eleventh Circuit, unpublished decisions are not binding, but are persuasive
authority. See 11th Cir. R. 36-2.
5

The Commissioner cites several decisions in which courts determined that the ALJ
properly considered the claimant’s migraines/headaches. (Doc. 20 at 25 ((citing Binder v. Comm’r
of Soc. Sec., No. 3:17-cv-1024-J-PDB, 2019 WL 1397923 (M.D. Fla. Mar. 28, 2019), Gilbert v.
Comm’r of Soc. Sec., No. 2:16-cv-840-FtM-CM, 2018 WL 1531914 (M.D. Fla. Mar. 29, 2018),
O’Grady v. Berryhill, Case No. 1:17CV09-CAS, 2017 WL 5618128 (N.D. Fla. Nov. 21, 2017)).
These cases, however, are distinguishable from the present case, because in those cases the ALJ
found and explained why the claimant’s migraines did or did not warrant any additional limitations.
Binder, 2019 WL 1397923, at *3 (“The ALJ did not include further limitations in the RFC, such as
the need for breaks and absentee days, because he found the evidence did not support Binder’s
assertions on the frequency and intensity of her headaches, Tr. 25–26, and substantial evidence
supports that finding[.]”), Gilbert, 2018 WL 1531914, *5 (finding “the ALJ fully developed the
record by discussing in detail throughout her decision Plaintiff’s medical records related to her
migraines” and “[b]ased on th[o]se findings, the ALJ determined her RFC findings sufficiently
accounted for Plaintiff’s migraine headaches.”), O’Grady, 2017 WL 5618128, at *10 (“The ALJ
recognized that Plaintiff testified that he has migraine headaches several times a week and normal
headaches all the time, Tr. 19, but concluded that the medical record does not support the claimant’s
statements of the intensity, persistence, and limiting effects of the headache symptoms.”)). Here,
in contrast, the ALJ’s discussion of the Claimant’s migraines is extremely brief and devoid of
detailed analysis.
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Despite having found the Claimant’s migraines to be severe, the ALJ does not appear to
account for the Claimant’s migraines in the RFC determination. Instead, the ALJ seems to dismiss
the possibility that the Claimant’s migraines cause any functional impairments by stating:
[Claimant] has also treated migraine headaches briefly. The records indicate that
she responded well to some degree to medication. The objective EEG was normal
and the brain MRI that was ordered is not in evidence.
(R. 18). The ALJ says nothing more about the Claimant’s migraines and what effects, if any, they
have on her RFC. The Court cannot say with any certainty that the foregoing excerpt demonstrates
that the ALJ determined that the Claimant’s migraines caused no limitations, because the ALJ does
not clearly state that is the case.
The lack of clarity about if and how the ALJ accounted for the Claimant’s migraines in the
RFC determination is highlighted by the Commissioner’s response. The Commissioner maintains
that the limitation to simple, routine, repetitive tasks and occasional exposure to dust, odors, fumes,
pulmonary irritants, vibrations, and other hazards account for the Claimant’s migraines. (Doc. 20
at 25-26). The Court is not persuaded. First, the ALJ did not limit the Claimant to simple, routine,
and repetitive tasks. (R. 14). Second, the ALJ limited exposure to pulmonary irritants because of
the Claimant’s “respiratory impairment,” not her migraines. (R. 18). Third, there is nothing in the
ALJ’s decision showing that he limited the Claimant to occasional exposure to vibration and other
hazards because of her migraines. (See id.). Accordingly, the Court cannot say that any of the
limitations in the RFC determination account for the Claimant’s severe migraine impairment.
In summary, it remains unclear the extent to which the ALJ considered the Claimant’s
migraines. The ALJ found the Claimant’s migraines were a severe impairment. However, it does

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not appear that any of the limitations in the RFC account for the Claimant’s migraines. Instead, the
limitations appear to flow from the Claimant’s other impairments. Further, it is not clear whether
the ALJ entirely rejected the possibility that the Claimant’s migraines caused any functional
limitations. To the extent the ALJ did, the ALJ’s reasoning for doing so also remains unclear.
Therefore, on this record, the Court cannot meaningfully determine whether the ALJ’s decision with
respect to the Claimant’s migraines, whatever it may be, is supported by substantial evidence.
Accordingly, the case will be reversed and remanded for further proceedings to allow the ALJ to
explain whether the Claimant’s migraines cause any functional limitations and, if not, why the
otherwise severe impairment does not result in additional limitations. Hill, 2020 WL 1430917, at
*4; Gurske, 2019 WL 643722, at *3; Battles, 2016 WL 3360428 at *3; Reis, 2012 WL 3231092, at
*4. 6
In light of this determination, the Court declines to rule on the Claimant’s second assignment
of error. See Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983) (on remand the ALJ must
reassess the entire record); McClurkin v. Soc. Sec. Admin., 625 F. App’x 960, 963 n.3 (11th Cir.
2015) (no need to analyze other issues when case must be reversed due to other dispositive errors).
V.

Conclusion
Accordingly, it is ORDERED that:
1. The Commissioner’s final decision is REVERSED and REMANDED for further
proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. §

6

Given the lack of clarity in the ALJ’s decision, the Court is not persuaded that the
Claimant’s failure to identify specific limitations that should have been, but were not, included in
the RFC prevents remand. Further, the Court is not persuaded that the Claimant failed to identify
additional limitations in her brief, since she noted evidence that she suffers from daily migraines
that cause sensitivity to light and sound. These symptoms, if credited by the ALJ on remand, may
result in the inclusion of additional functional limitation in the RFC determination.
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405(g).
2. The Clerk is DIRECTED to enter judgment in favor of the Claimant and against the
Commissioner, and to close the case.
DONE and ORDERED in Orlando, Florida on September 14, 2020.

Copies to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable Eric S. Fulcher
Administrative Law Judge
Office of Hearings Operations
3505 Lake Lynda Dr
Suite 300
Orlando, FL 32817-9801

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