MILLER v. KIJAKAZI

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS - The Court OVERRULES the Commissioner's objection, (Docket No. 17 ), ADOPTS the Magistrate Judge's Report and Recommendation, (Docket No. 16 ), REVERSES the ALJ's decision denying benefits, and REMANDS this matter for further consideration consistent with this Order. See Order for details. Signed by District Judge Matthew P. Brookman on 8/28/2024.(LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CHRISTINA M.,

)
)
Plaintiff,
)
)
v.
)
)
KILOLO KIJAKAZI Acting Commissioner of the )
Social Security Administration,
)
)
Defendant.
)

No. 1:23-cv-00716-MPB-MKK

ENTRY AFFIRMING MAGISTRATE JUDGE'S DECISION
Plaintiff Christina M.1 petitioned the court for judicial review of the Commissioner of
Social Security Administration's final decision denying her application for Social Security
Disability Insurance Benefits ("DIB"). (Docket No. 1). The case was referred to the Magistrate
Judge for consideration. (Docket No. 13). On July 1, 2024, the Magistrate Judge issued a Report
and Recommendation concluding that the Commissioner's decision should be reversed and
remanded. (Docket No. 16). The Commissioner filed a timely objection to the Magistrate Judge's
Report and Recommendation ("R&R"), which the Court now addresses. (Docket No. 17). For the
reasons that follow, this Court OVERRULES the Commissioner's Objection (Docket No. 17),
ADOPTS the Magistrate Judge's Report and Recommendation (Docket No. 16), and
REMANDS to the agency for further consideration consistent with this order.

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To protect the privacy interests of claimants for Social Security benefits, the Southern District
of Indiana has chosen to use only the first name and last initial of non-governmental parties in its
Social Security review opinions.

I. STANDARD OF REVIEW
In reviewing the decision of an Administrative Law Judge ("ALJ"), the district court
affirms if the ALJ's factual findings are supported by substantial evidence and there are no errors
of law. Stephens v. Berryhill, 888 F.3d 323, 327 (7th Cir. 2018). "Substantial evidence means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). The district court will also "determine
whether [the ALJ's decision] reflects an adequate logical bridge from the evidence to the
conclusions." Gedatus v. Saul, 994 F.3d 893, 900 (7th Cir. 2021). The court confines the scope
of its review to the rationale offered by the ALJ. Tumminaro v. Astrue, 671 F.3d 629, 632 (7th
Cir. 2011).
When considering a party's specific objections to a Magistrate Judge's Report and
Recommendation, the district court reviews those elements de novo, determining for itself
whether the Commissioner's decision as to those issues is supported by substantial evidence or
was the result of error of law. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). De novo review
requires a re-examination of the case with a fresh set of eyes and "an independent judgment of
the issues." Moody v. Amoco Oil Co., 734 F.2d 1200, 1210 (7th Cir. 1984). "The court is not to
'reweigh evidence, resolve conflicts, decide questions of credibility, or substitute [its] judgment
for that of the Commissioner.'" Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019)
(quoting Lopez ex rel. Lopez v. Barnhart, 336, F.3d 535, 539 (7th Cir. 2003)). After review, the
court is empowered to adopt, reject, or modify the recommendations of the Magistrate Judge.
Fed. R. Civ. P. 72(b).
II.

FACTUAL BACKGROUND
The ALJ's decision finding the Plaintiff not disabled followed the required five-step

evaluation process in 20 C.F.R. § 404.1520. Specifically, the ALJ found:
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

At Step One, "claimant has not engaged in substantial gainful activity since
December 1, 2020, the alleged onset date." (Docket No. 7-2 at ECF p. 20).



At Step Two, "claimant has the following severe impairments: fibromyalgia
syndrome; migraines; neuropathy; irritable bowel syndrome; sacroiliitis;
lumbar disc disease; obesity." (Id.).



At Step Three, "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 CFR Part 404, Subpart P, Appendix 1." (Id. at ECF p.
22).



After Step Three but before Step Four, that "claimant has the residual
functional capacity to perform sedentary work as defined in 20 C.F.R.
404.1567(a) and 416.967(a) except that the claimant cannot crawl, kneel, or
climb ladders, ropes, or scaffolding. The claimant can occasionally stoop,
crouch, balance (on narrow, slippery, or erratically moving surfaces) and
climb ramps and stairs. The claimant can frequently handle, finger, and feel
with the bilateral upper extremities. The claimant must avoid all exposure
to unprotected heights and use of hazardous machinery, and must avoid
concentrated exposure to extreme cold, extreme heat, humidity, and
vibrations. The claimant can occasionally use computer video screens, but
must avoid exposure to bright or flickering lights (such as would be
experienced with welding or cutting metals) or more than 'moderate' noise
levels (as defined in the SCO). The claimant requires a sit/stand option,
allowing her the opportunity (but not requiring her) to stand for 5-10
minutes after sitting continuously for 30-45 minutes." (Id. at ECF p. 23).



At Step Four, "claimant [was] unable to perform any past relevant work."
(Id. at ECF p. 29).



At Step Five, the ALJ found that "[c]onsidering the claimant's age,
education, work experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy that the claimant
can perform." (Id.).



Finally, the ALJ concluded that the claimant has "not been under a disability,
as defined in the Social Security Act, from December 1, 2020, through the
date of this decision." (Id. at ECF p. 30).

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III.

ANALYSIS
The ALJ concluded that the Plaintiff had the residual functional capacity to perform some

sedentary work. (Docket No. 7-2 at ECF p. 23). In the R&R, the Magistrate Judge disagreed, and
noted that the RFC analysis was deficient because the ALJ left out "any acknowledgment of offtask time and absenteeism from his opinion." (Docket No. 16 at ECF p. 15). The Commissioner
argues that the Magistrate Judge's R&R did not account for the fact that the Plaintiff's argument
"relied primarily on her own subjective statements and provided insufficient objective
corroboration to support such limits, such as objective medical findings or medical source
opinions." (Docket No. 17 at ECF p. 2). Additionally, the Commissioner argues that the
Magistrate Judge's order improperly shifts the burden of proving the claimant's work limits from
the claimant to the ALJ. (Id.).
A. Migraines and Fatigue
An "'ALJ's RFC assessment must incorporate all of the claimant's limitations supported
by the medical record' including even moderate limitations." Crump v. Saul, 932 F.3d 567, 570
(7th Cir. 2019) (emphasis added). "In the world of disability claims, migraines are a challenging
impairment." Dennie K. K. v. Comm'r of Soc. Sec., No. 21-CV-01188, 2022 WL 17830498, at *4
(S.D. Ill. Dec. 21, 2022). While an ALJ must heavily assess the claimant's subjective symptoms,
Dennie K. K., 2022 WL 17830498, at *4, they are not required to credit the claimant's testimony,
Moore v. Colvin, 743 F.3d 1118, 1126 (7th Cir. 2014), and "need only include limitations that are
supported by the medical record." Reynolds v. Kijakazi, 25 F.4th 470, 473 (7th Cir. 2022). An
ALJ determining the RFC of a claimant suffering from migraines "usually should include the
likelihood of missing work." Dennie K. K., 2022 WL 17830498, at *4; see also Moore, 743 F.3d
at 1127.

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In Crump, when creating a hypothetical for the vocational expert, the ALJ correctly
incorporated the claimant's ability to perform simple tasks as well as her need to be off task
twenty percent of the time or requiring two unscheduled absences per month. Crump, 932 F.3d
570. However, after the vocational expert "opined that a person so limited would lack the
functional capacity to sustain any employment," the ALJ failed to incorporate this opinion in the
RFC, thus committing error by "leaving the RFC altogether uninformed by considerations of offtask time or unplanned leave." Id. (emphasis in original).
Meanwhile, in Denton v. Astrue, a claimant argued that the ALJ had erred by not
considering several of her symptoms and related factors of her illness when formulating her
RFC. 596 F.3d 419, 423 (7th Cir. 2010). There, the Seventh Circuit concluded that: (1) the ALJ
had fully considered the claimant's illnesses and symptoms, and (2) the claimant failed to
produce medical evidence to support the limitations she alleged necessary. Id. at 424; see also
Fanta v. Saul, 848 F. App'x 655, 659 (7th Cir. 2021) (Plaintiff "does not point to any objective
evidence or medical opinions in the record that support stricter limitations.").
Here, the facts are more in line with Crump than Denton. The Commissioner is correct
that an ALJ does not need to rely on a claimant's own subjective statements without sufficient
corroboration. However, the Commissioner is wrong that the Plaintiff offers no medical findings
in support of additional limitations. The Plaintiff, in fact, cites to evidence that the ALJ also
mentioned: that according to doctor's notes from 2020, claimant's migraines reduced from as
often as five times per week to only a handful of times per month due to an "excellent response"
to a new medication. (Docket No. 7-2 at ECF p. 25). However, while the ALJ viewed this as
evidence that the Plaintiff was markedly better, the Plaintiff emphasizes that this note shows that
she still suffered from migraines several times per month. (Docket No. 7-7 at ECF p. 159). The

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doctor also noted that the Plaintiff was unlikely to ever reach a point in which she had no
migraines. (Id. at ECF p. 160). It is true that the Plaintiff took herself off her migraine medication
while she pursued pregnancy and then breastfeeding, however, the doctor who saw her following
her return to medication still noted migraines. (Docket No. 7-9 at ECF p. 298). And in her
headache questionnaire, the Plaintiff stated that the only way to relieve her headache was to lie
down in a dark, quiet room. (Docket No. 7-6 at ECF p. 26).
Additionally, the medical records in this case are replete with references to the Plaintiff's
fatigue. (Docket No. 7-7 at ECF pp. 5, 34, 63, 74, 105, 113, 119, 135, 145; Docket No. 7-8 at
ECF pp. 13, 16, 367, 372, 412, 426, 456; Docket No. 7-9 at ECF pp. 297). While this medical
evidence can stand on its own, the Claimant testified at her oral hearings that she takes a daily
morning nap of about two and a half hours and then an afternoon nap for about an hour. (Docket
No. 7-2 at ECF p. 52). She also testified that she needs to rest after her afternoon nap, usually
until bedtime. (Id.). The Plaintiff reiterated this information on her Function Report, a form on
which she self-reported more information to the Social Security Administration, (Docket No. 7-6
at ECF p. 29, 48), and to her doctors at least twice. (Docket No. 7-7 at ECF p. 110; Docket No.
7-8 at ECF p. 453).
The ALJ did not point to evidence that contradicts the Plaintiff migraines and fatigue.
Rather, he reasoned that he did not have to credit her symptoms "with limits for being off task or
absent from work, when the record did not support such limits." (Docket No. 17 at ECF p. 3). As
mentioned previously, the ALJ acknowledged that the Plaintiff suffers from a handful of
migraines per month. (Docket No. 7-7 at ECF p. 159). However, he did not explain how this
medical evidence squares with foregoing any limitation for the need to be off task or absent from
work. This is especially important because the Vocational Expert testified that the maximum off-

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task rate employers are likely to tolerate is 10% in an eight-hour workday. (Docket No. 7-2 at
ECF p. 60). As the Magistrate Judge explains, the ALJ may ultimately decide to reject limitations
for off-task time or absenteeism, but the Court must understand why this is so in face of medical
evidence suggesting their necessity.
In addressing the Plaintiff's medical and testimonial evidence of fatigue and need for
naps, the ALJ only stated at Step Three that though the Plaintiff reported "generalized fatigue,"
she could still perform a range of daily tasks and manage her medications and finances. (Docket
No. 7-2 at ECF pp. 21, 25). Besides making these two statements at Step Three, the ALJ never
addressed the Plaintiff's medical evidence of fatigue and need to nap, much less incorporated this
functional limitation into the RFC assessment or included them into his question to the
Vocational Expert about the Plaintiff's ability to work. Varga v. Colvin, 794 F.3d 809, 813 (7th
Cir. 2015). While the ALJ may ultimately discount the Plaintiff's testimony about her naps and
fatigue, he must still properly consider this medical and testimonial evidence on remand.
B. Sit/Stand Option
In the Plaintiff's Brief in Support of Complaint for Review, she argues that the ALJ's
sit/stand option lacks necessary specificity on whether she would be off or on task when
standing. (Docket No. 9 at ECF pp. 21–22). The Magistrate Judge mentioned this argument in
her Report and Recommendation but does not analyze it. (Docket No. 16 at ECF p. 9). Likewise,
the Commissioner does not mention the issue in the Objection to the Report and
Recommendation, (Docket No. 17), and the Plaintiff filed no response to the Commissioner's
Objection.

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Because the ALJ's decision denying benefits is being reversed and remanded for the
above reasons, the ALJ is invited to reconsider the specificity of his language on the sit/stand
limitation on remand.
IV.

CONCLUSION
For the reasons stated above, the Court OVERRULES the Commissioner's objection,

(Docket No. 17), ADOPTS the Magistrate Judge's Report and Recommendation, (Docket No.
16), REVERSES the ALJ's decision denying benefits, and REMANDS this matter for further
consideration consistent with this Order.
IT IS SO ORDERED.
Date:

08/28/2024

All Electronically Registered Counsel

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