Mann v. Commissioner of Social Security
Filing
16
MEMORANDUM Opinion and Order. The Commissioners determination that Mann was not disabled is reversed and this case is remanded to the Commissioner for further proceedings. Judgment shall enter in favor of plaintiff Des L Mann and against the defendant Commissioner of Social Security. Signed by Magistrate Judge Leonard T Strand on 4/23/2015. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
DES L. MANN,
Plaintiff,
No. C14-2021-LTS
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
MEMORANDUM OPINION
AND ORDER
Defendant.
____________________
Plaintiff Des L. Mann seeks judicial review of a final decision of the
Commissioner of Social Security (the Commissioner) denying her applications for Social
Security Disability benefits (DIB) and Supplemental Security Income benefits (SSI) under
Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Mann
contends that the administrative record (AR) does not contain substantial evidence to
support the Commissioner’s decision that she was not disabled during the relevant period.
For the reasons that follow, the Commissioner’s decision will be reversed and remanded.
I.
BACKGROUND
Mann was born in 1966 and has past work as a nurse and pizza maker. AR 23,
329. She filed applications for DIB and SSI on December 28, 2011, alleging a disability
onset date of January 1, 2010. AR 13, 188, 190. She contends that she is disabled due
to migraine headaches, as exacerbated by certain mental health issues. Doc. No. 13 at
3. Mann’s claim was denied initially and on reconsideration. AR 113, 120, 129. She
then requested a hearing before an Administrative Law Judge (ALJ) and ALJ Julie K.
Bruntz conducted a hearing on November 5, 2013. AR 13, 31. The ALJ issued a
decision on November 20, 2013, in which she denied Mann’s claim. AR 13-25. Mann
sought review by the Appeals Council, which denied review on March 7, 2014. AR 13. Thus, the ALJ’s decision stands as the final decision of the Commissioner. AR 1.
On May 2, 2014, Mann filed a complaint (Doc. No. 3) in this court seeking review
of the Commissioner’s decision. On June 18, 2014, with the parties’ consent (Doc. No.
6), the Honorable Linda R. Reade reassigned the case to Chief Magistrate Judge Jon S.
Scoles for final disposition and entry of judgment. The case was reassigned to me on
January 12, 2015. The parties have fully briefed the issues and the matter is now fully
submitted.
II.
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
A disability is defined as the “inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. §
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the
claimant is “not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists . . . in significant numbers either in the region where such individual lives
or in several regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined
in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705,
707 (8th Cir. 2007). First, the Commissioner will consider a claimant’s work activity.
If the claimant is engaged in substantial gainful activity, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
2
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is
not severe if it amounts only to a slight abnormality that would not significantly limit the
claimant’s physical or mental ability to do basic work activities.” Kirby, 500 F.3d at
707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and
aptitudes include (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and
speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use
of judgment; (5) responding appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work setting. Id. §§ 404.1521(b)(1)(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S. Ct. 2287, 2291
(1987). “The sequential evaluation process may be terminated at step two only when the
claimant’s impairment or combination of impairments would have no more than a
minimal impact on her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will
consider the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled, regardless of age, education, and work experience. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v.
Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) to determine the claimant’s “ability to meet
3
the physical, mental, sensory, and other requirements” of the claimant’s past relevant
work.
20
C.F.R.
§§
404.1520(a)(4)(iv),
404.1545(a)(4),
416.920(a)(4)(iv),
416.945(a)(4). “RFC is a medical question defined wholly in terms of the claimant’s
physical ability to perform exertional tasks or, in other words, what the claimant can still
do despite his or her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642,
646 (8th Cir. 2003) (internal quotation marks omitted); see 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). The claimant is responsible for providing evidence the Commissioner
will use to make a finding as to the claimant’s RFC, but the Commissioner is responsible
for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain nonmedical evidence and other evidence listed in the regulations. See id. If a claimant
retains the RFC to perform past relevant work, then the claimant is not disabled. Id.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to show that
there is other work that the claimant can do, given the claimant’s RFC as determined at
Step Four, and his or her age, education, and work experience. See Bladow v. Apfel,
205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must show not only that
the claimant’s RFC will allow the claimant to make an adjustment to other work, but also
that the other work exists in significant numbers in the national economy. Eichelberger
v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in
significant numbers in the national economy, then the Commissioner will find the
claimant is not disabled. If the claimant cannot make an adjustment to other work, then
the
Commissioner
will
find
that
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
the
claimant
is
disabled.
20
C.F.R.
At Step Five, even though the burden of
4
production shifts to the Commissioner, the burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
III.
THE ALJ’S FINDINGS
The ALJ made the following findings:
(1)
The claimant meets the insured status requirements of
the Social Security Act through December 31, 2015.
(2)
The claimant has not engaged in substantial gainful
activity since January 1, 2010, the alleged onset date
(20 CFR 404.1571 et. seq., and 416.971 et seq.).
(3)
The claimant has the following severe impairments:
depression; obesity; migraines; history of asthma (20
CFR 404.1520(c) and 416.920(c)).
(4)
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 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
(5)
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except she can
occasionally lift and carry 20 pounds and 10 pounds
frequently. She can stand and walk and sit each 6
hours of an 8-hour workday. Her ability to push and
pull including hand and foot controls is unlimited. She
can occasionally climb ramps and stairs, ladders,
ropes, and scaffolds; balance, stoop, kneel, crouch,
and crawl. She would need to avoid concentrated
exposure to humidity, fumes, odors, gases, poor
ventilation, and dust. She is limited to simple, routine
tasks.
(6)
The claimant is unable to perform any past relevant
work as set out in Exhibit 20E as based on the
5
testimony of the vocational expert (20 CFR 404.1565
and 416.965).
(7)
The claimant was born on February 14, 1966 and was
43 years old, which is defined as a younger individual
age 18-44, on the alleged disability onset date. (20
CFR 404.1563 and 416.963)
(8)
The claimant has at least a high school education and
is able to communicate in English (20 CFR 404.1564
and 416.964).
(9)
Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and
20 CFR Part 404, Subpart P, Appendix 2).
(10)
Considering 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 (20 CFR
404.1569, 404.1569(a), 415.969 and 416.969(a)).
(11)
The claimant has not been under a disability, as defined
in the Social Security Act, from January 1, 2010,
through the date of this decision (20 CFR 404.1520(g)
and 416.920(g) ).
AR 15-24.
IV.
THE SUBSTANTIAL EVIDENCE STANDARD
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The Eighth Circuit
6
explains the standard as “something less than the weight of the evidence and [that] allows
for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of
choice within which the [Commissioner] may decide to grant or deny benefits without
being subject to reversal on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.
1994).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search
the record for evidence contradicting the [Commissioner’s] decision and give that
evidence appropriate weight when determining whether the overall evidence in support
is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
7
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion.”).
V.
DISCUSSION
Mann raises four issues:
1.
The ALJ Erred In Requiring Unspecified “Objective” Evidence Of
Migraine Headaches; There Are No Diagnostic Or Laboratory Tests That
Can Confirm The Presence Of Migraines And The ALJ Failed To
Appreciate The Objective Evidence Present.
2.
The ALJ Must Determine Whether A Claimant’s Condition Meets Or
Equals The Listings Of Impairment; Mann’s Migraine Headaches Are
Medically Equivalent To The Most Closely Analogous Listing Of
Impairment, Listing 11.03, Non-Convulsive Epilepsy, And The ALJ Erred
In Failing To Address This Issue.
3.
The ALJ’s Decision Is Not Supported By Substantial Medical Evidence As
The ALJ Failed To Fully And Fairly Develop The Record By Obtaining
Work-Related Limitations From A Treating Or Examining Source.
4.
The ALJ Must Make An Individualized Function-By-Function Assessment
Of A Claimant’s Residual Functional Capacity; As The ALJ Failed To
Include Mann’s Need For Frequent Absences Due To Migraine Headaches,
The ALJ Failed To Make An Individualized Function-By-Function
Assessment Of Mann’s Residual Functional Capacity.
Doc. No. 13 at 11-26. I will address each issue separately.
A.
Objective Evidence of Migraines
Mann notes that migraine headaches are her primary impairment and argues that
the ALJ erroneously relied on a lack of “objective evidence” in denying her claim of
disability.
As the Commissioner notes, however, Mann does not explain why she
believes the ALJ imposed an “objective evidence” requirement or relied on the lack of
8
objective evidence to deny her claim. Mann simply cites the ALJ’s lengthy summary of
the medical evidence and states: “The ALJ then concluded that the objective medical
evidence was consistent with the ALJ’s residual functional capacity assessment (TR 23).”
Doc. No. 13 at 14. The ALJ actually wrote as follows:
In conclusion, the record considered as a whole supports some limitations
in the claimant’s ability to perform work-related activities. However, those
limitations are adequately accommodated by the residual functional capacity
(RFC) outlined above, which is consistent with objective medical findings
and opinion evidence of record, as well as the documented activities. The
record does not support greater limitations.
AR 23 [emphasis added]. Having carefully reviewed the ALJ’s ruling, I find Mann’s
argument that the ALJ imposed an “objective evidence” requirement to be flat-out wrong.
The ALJ imposed no such requirement but, instead, simply concluded that her RFC
determination was consistent with (a) the objective medical findings, (b) the opinion
evidence of record and (c) evidence of Mann’s activities. I reject Mann’s first argument
for reversal.
B.
Failure to Address Listing 11.03
At Step Three, the ALJ found that Mann does not have an impairment or
combination of impairments that meets or medically equals the severity of a listed
impairment. AR 16. The ALJ specifically addressed Listing 12.04 (affective disorders)
and found that Mann’s impairment did not meet or medically equal either the “paragraph
B” or “paragraph C” criteria for that listing. AR 16-17. Mann does not challenge this
finding and, indeed, acknowledges that migraine headaches are not a listed impairment.
However, she contends the ALJ erred in failing to address Listing 11.03 (non-convulsive
epilepsy) and argues the record demonstrates that her impairment medically equals that
listing.
9
1.
Applicable Standards
The Supreme Court has explained the listings as follows:
The listings . . . are descriptions of various physical and mental illnesses
and abnormalities, most of which are categorized by the body system they
affect. Each impairment is defined in terms of several specific medical
signs, symptoms, or laboratory test results. For a claimant to show that his
impairment matches a listing, it must meet all of the specified medical
criteria. An impairment that manifests only some of those criteria, no
matter how severely, does not qualify. . . .
For a claimant to qualify for benefits by showing that his unlisted
impairment, or combination of impairments, is “equivalent” to a listed
impairment, he must present medical findings equal in severity to all the
criteria for the one most similar listed impairment. . . . A claimant cannot
qualify for benefits under the “equivalence” step by showing that the overall
functional impact of his unlisted impairment or combination of impairments
is as severe as that of a listed impairment.
Sullivan v. Zebley, 493 U.S. 521, 529-32 (1990) [citations and footnotes omitted]. The
purpose of the listings is to streamline the decision process by identifying claimants whose
medical impairments are so severe that it is likely they would be found disabled regardless
of their vocational backgrounds. Bowen v. Yuckert, 482 U.S. 137, 153 (1987). Thus, if
an impairment meets or equals one of the listings, the claimant is considered disabled
regardless of age, education, and work experience. Kelley, 133 F.3d at 588.
The claimant has the burden of proving that his or her impairment meets or equals
a listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). Remand is not
required when an ALJ fails to explain why an impairment does not meet or equal a listed
impairment “as long as the overall conclusion is supported by the record.” Boettcher v.
Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
10
2.
Analysis
Listing 11.03, which is part of the “Neurological” category of impairments, reads
as follows:
11.03 Epilepsy—nonconvulsive 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. Part 404, Subpart P, Appendix 1, § 11.03.
Mann notes that the
Commissioner’s Program Operations Manual System (POMS) identifies Listing 11.03 as
being closely analogous to chronic migraine headaches. Doc. No. 13 at 16-17 (citing
POMS DI 24505.015). The example Mann references states as follows:
A claimant has chronic migraine headaches for which she sees her treating
doctor on a regular basis. Her symptoms include aura, alteration of
awareness, and intense headache with throbbing and severe pain. She has
nausea and photophobia and must lie down in a dark and quiet room for
relief. Her headaches last anywhere from 4 to 72 hours and occur at least
2 times or more weekly. Due to all of her symptoms, she has difficulty
performing her ADLs. The claimant takes medication as her doctor
prescribes. The findings of the claimant’s impairment are very similar to
those of 11.03, Epilepsy, non-convulsive. Therefore, 11.03 is the most
closely analogous listed impairment. Her findings are at least of equal
medical significance as those of the most closely analogous listed
impairment. Therefore, the claimant’s impairment medically equals listing
11.03.
POMS DI 24505.015(B)(7)(b). Mann argues that her situation is similar and that remand
is required with directions that the ALJ consider Listing 11.03.
The Commissioner disagrees. She points out that Mann failed to raise Listing
11.03 during the administrative proceedings and argues, in any event, that the evidence
fails to demonstrate that Mann’s impairment medically equals that listing. As for the first
point, I reject the Commissioner’s apparent contention that Mann is at fault for the ALJ’s
11
failure to consider Listing 11.03.1
The Commissioner cites no authority for the
proposition that a claimant must tell the ALJ which listings to consider. Presumably,
identifying relevant listings is within the scope of a Social Security ALJ’s unique training
and experience. Requiring a claimant to specify the relevant listings – at risk of waiving
the right to rely on them – would be inconsistent with the well-accepted notion that Social
Security proceedings are non-adversarial in nature. See, e.g., Battles v. Shalala, 36 F.3d
43, 44 (8th Cir. 1994).
Moreover, the possibility that Listing 11.03 might be relevant to a claim involving
migraine headaches should not have come as a surprise to the ALJ. As noted above, the
Commissioner’s own manual – POMS – identifies that listing as the “most closely
analogous” listing for a claimant who has “chronic migraine headaches.” POMS DI
24505.015(B)(7)(b). Many federal courts, including this court and others in the Eighth
Circuit, have discussed Listing 11.03 in connection with migraine headaches. See, e.g.,
Yeatman v. Colvin, No. 4:14–CV00255–JJV, 2014 WL 7330627, at *2 (E.D. Ark. Dec.
18, 2014) (remanding with directions to address Listing 11.03); Savage v. Colvin, 41 F.
Supp. 3d 763, 771 (S.D. Iowa 2014) (noting the claimant’s argument that Listing 11.03
applied before reversing the ALJ’s decision on other grounds); Theis v. Astrue, No.
3:10CV00193 JLH, 2011 WL 2601581, at *6 (E.D. Ark. July 1, 2011) (directing ALJ
to consider Listing 11.03 on remand); Gettner v. Barnhart, No. C05-4096-MWB, 2006
WL 1192868, at *13 (N.D. Iowa May 2, 2006) (noting that the ALJ expressly addressed
Listing 11.03 in connection with various impairments that included migraines).
1
The Commissioner states:
In fact, plaintiff did not raise the issue of Listing 11.03 at the hearing or even in
her brief to the Appeals Council. AR 31-58, 335.
Doc. No. 14 at 12.
12
Despite POMS, and the case law referenced above, neither the ALJ nor the state
agency consultants who reviewed Mann’s records made any reference to Listing 11.03.
AR 16-17, 74-80. While Mann certainly could have brought that listing to the ALJ’s
attention, I find that the ALJ likewise could have – and should have – considered the
listing without being asked to do so.
The real issue is: What is the remedy? If it is obvious that the evidence of record
cannot possibly support a finding that Mann’s impairment meets or equals Listing 11.03,
then the ALJ’s error would be harmless and remand would not be necessary. See, e.g.,
Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008) (error is harmless if there is no
indication that the ALJ would have decided the claim differently). That is not the case
here. Having carefully reviewed the record, I find that there is sufficient evidence of
chronic, severe migraine headaches during the relevant period of time that the ALJ must
consider whether that impairment medically equals Listing 11.03.
For example, Mann visited the Emergency Room on May 29, 2010, due to a
migraine headache that had lasted four days. AR 381. She received Phenergan, Toradol
and Vistaril intravenously. AR 382. She was back in the ER on July 6, 2010, with a
migraine that had started the morning before. AR 383. She received an injection of
Toradol, Phenergan and Nubain. AR 383-84.
Mann saw Mary Pat Rosman, D.O., on July 9, 2010, to discuss her frequent
migraine headaches and was referred for a neurological evaluation. AR 352. On August
9, 2010, Mann told Dr. Rosman that she continued to have “recurrent severe headaches.”
AR 351. On August 17, 2010, Mann returned to Dr. Rosman due to a migraine headache
that had started the night before. AR 350. Dr. Rosman administered an injection of
Toradol, Nubain and Phenergan. Id.
On September 1, 2010, Mann reported that the frequency and severity of her
migraine headaches had increased and that she was having migraines daily. AR 349.
She told Dr. Rosman that she “wakes up with headaches.” Id. On September 15, 2010,
Dr. Rosman saw Mann again and noted that she had been in the ER with a migraine on
13
September 9 and that the migraine had not resolved despite the administration Nubain,
Phenergan and Toradol.
AR 348.
During the September 15 visit, Dr. Rosman
administered injections of Norflex, Toradol and Nubain. Id. Mann visited the ER due
to migraines on January 6, March 25, November 19 and December 12 of 2011, along
with March 3 and June 9 of 2012. AR 387, 389, 392, 394, 396, 398, 404, 406.
At
times, the migraine lasted for several days before Mann went to the ER. See, e.g., AR
398.
On February 4, 2013, William Talman, M.D., a neurologist, found that Mann
“has two type [sic] of headaches, a milder daily headache that seems not to interfere with
her ADL’s and a much more severe headache that is preceded by scintillating scotomata
and accompanied by nausea and photophobia.” AR 547. Mann was prescribed Depakote
(valproic acid) and Compazine and was directed to withhold all other migraine
medication. AR 546-47.
On March 8, 2013, Mann reported that Depakote was not helping. AR 588. She
was advised that she is “a life long headache person” and that it was necessary to “give
each medication a fair shot.” AR 588-89. On March 26, 2013, Atif Zafar, M.D., noted
that Mann had tried a variety of other medications, including Propranolol, TCAs,
Topamax, Neurontin, Lamictal and “pretty much all opioids.” AR 589. On April 10,
2013, Mann reported that her headaches continued to require emergency room visits,
with the most-recent being two days earlier. AR 590.
Based on this medical evidence, Mann was entitled to have the ALJ conduct an
analysis under Listing 11.03. If the ALJ had conducted such an analysis, her conclusion
would be upheld so long as it fell within the “available zone of choice.” See, e.g.,
Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008). Unfortunately, the ALJ did not
consider Listing 11.03, meaning there was no “choice” and, therefore, no “zone.” I find
that remand is necessary with directions that the ALJ consider whether Mann’s migraine
headaches meet or equal Listing 11.03.
14
C.
Development of the Record
Mann next contends that the ALJ failed to properly develop the record by obtaining
an opinion about work-related limitations from a treating or examining source. The
Commissioner acknowledges that the record contains no such opinion but argues that it
was unnecessary because the ALJ had sufficient evidence to determine Mann’s RFC.
1.
Applicable Standards
The ALJ has a duty to fully and fairly develop the record, even when the claimant
is represented by counsel. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.2000) (citing
Warner v. Heckler, 722 F.2d 428, 431 (8th Cir.1983)). This duty includes “arranging
for a consultative examination(s) if necessary, and making every reasonable effort to help
[the claimant] get medical reports from [his or her] own medical sources.” 20 C.F .R.
§ 416.945(a)(3). “Because the social security disability hearing is non-adversarial ... the
ALJ's duty to develop the record exists independent of the claimant's burden in the case.”
Stormo, 377 F.3d at 806 (citing Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir.2004)).
Where, as here, the ALJ finds that a claimant is unable to perform any past relevant
work, the burden shifts to the Commissioner to show that there is other work that the
claimant can do, given the claimant’s RFC and his or her age, education, and work
experience. Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir. 2000). As a general
rule, the Commissioner cannot make such a showing without opinion evidence from a
treating or examining source. Nevland, 204 F.3d at 857. In Nevland, the Eighth Circuit
Court of Appeals stated:
In the case at bar, there is no medical evidence about how Nevland's
impairments affect his ability to function now. The ALJ relied on the
opinions of non-treating, non-examining physicians who reviewed the
reports of the treating physicians to form an opinion of Nevland's RFC. In
our opinion, this does not satisfy the ALJ's duty to fully and fairly develop
the record. The opinions of doctors who have not examined the claimant
ordinarily do not constitute substantial evidence on the record as a whole.
Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir.1999). Likewise, the
15
testimony of a vocational expert who responds to a hypothetical based on
such evidence is not substantial evidence upon which to base a denial of
benefits. Id. In our opinion, the ALJ should have sought such an opinion
from Nevland's treating physicians or, in the alternative, ordered
consultative examinations, including psychiatric and/or psychological
evaluations to assess Nevland's mental and physical residual functional
capacity. As this Court said in Lund v. Weinberger, 520 F.2d 782, 785
(8th Cir.1975): “An administrative law judge may not draw upon his own
inferences from medical reports. See Landess v. Weinberger, 490 F.2d
1187, 1189 (8th Cir. 1974); Willem v. Richardson, 490 F.2d 1247, 1248–
49 n. 3 (8th Cir. 1974).”
Id. [emphasis in original]. However, Nevland “does not compel remand in every case in
which the administrative record lacks a treating doctor’s opinion.” Hattig v. Colvin, No.
C12-4092 MWB, 2013 WL 6511866, at *10 (N.D. Iowa Dec. 12. 2013). Even without
an opinion from a treating or examining source, the ALJ’s decision may be affirmed if
there is other medical evidence demonstrating the claimant’s ability to function in the
workplace. Id.; see also Agan v. Astrue, 922 F. Supp. 2d 730, 756 (N.D. Iowa 2013).
The question is whether there is sufficient evidence of “how [the claimant’s] impairments
... affect [her] residual functional capacity to do other work,” or her “ability to function
in the workplace.” Hattig, 2013 WL 6511866, at *11 (quoting Nevland, 204 F.3d at
858).
2.
Analysis
As I summarized in Section V(B)(2), supra, the record contains evidence that
Mann suffered from recurring, severe migraine headaches. However, the record contains
no opinion evidence from any treating or examining source as to Mann’s RFC. Thus, in
light of Nevland, the question is whether there is sufficient other medical evidence to
support the ALJ’s findings as to Mann’s ability to function in the workplace. I find that
there is not.
On June 19, 2012, Mann underwent a consultative examination by Divya
Narayanaswamy, M.D., at Northeast Iowa Family Practice Center. AR 428-29. The
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report of that examination is as close as the record gets to containing an opinion from a
treating or examining source. Dr. Narayanaswamy found that Mann suffered from
“Migraine headaches, uncontrolled,” along with other impairments including depression
and anxiety. AR 428. She noted that Mann reported suffering from severe migraines
about five times per week and that her headaches are “associated with vomiting and
photophobia.”
Id.
She found that Mann had been either “under treated or not
appropriately treated” and recommended that she be referred to a neurologist. AR 429.
However, Dr. Narayanaswamy made no findings as to how Mann’s headaches affect her
RFC or her ability to function in the workplace. AR 428-29.
On February 4, 2013, Mann was examined by a medical student, Lindsay
Dickerhoff, under the supervision of William Talman, M.D., a neurologist. AR 546-47.
As I noted earlier, Dr. Talman found that Mann suffers from two types of headaches, “a
milder daily headache that seems not to interfere with her ADL’s and a much more severe
headache that is preceded by scintillating scotomata and accompanied by nausea and
photophobia.” AR 547. Both Ms. Dickerhoff and Dr. Talman made note of the fact that
Mann had tried a wide variety of medications, with little success. AR 546-47. Again,
however, Dr. Talman provided no opinion as to the impact of Mann’s headaches on her
RFC or her ability to function in the workplace.
The Commissioner relies on the opinions of three state agency consultants who
reviewed Mann’s records but did not examine her. Doc. No. 14 at 15. Having carefully
reviewed those opinions, and the medical evidence upon which they are based, I find that
they do not fill the Nevland gap. While there is ample evidence that Mann suffers from
recurring, serious migraine headaches, neither the consultative opinions nor the
underlying medical records adequately address the impact those headaches have on
Mann’s ability to function in a work environment. The ALJ should have developed the
record further by obtaining an opinion on this issue from a treating or examining source.
As such, on remand the ALJ shall obtain an opinion from a treating or examining
source that specifically addresses the impact of Mann’s migraine headaches on her ability
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to function in the workplace. The ALJ shall then revisit the sequential evaluation process
in light of that additional evidence.
D.
The RFC Determination
Mann’s final argument is that the ALJ’s findings as to her RFC are flawed because
they do not fully address her need for unscheduled absences due to migraine headaches.
Because I have already determined that remand is necessary, there is no need to address
this issue at length. However, I do agree with Mann that if the ALJ again reaches Step
Four (that is, does not find Mann to be disabled at Step Three), the RFC findings should
explicitly discuss any limitations relating to migraine headaches. See, e.g., Stewart v.
Colvin, No. C13-2029, 2014 WL 1165870, at *13 (N.D. Iowa Mar. 21, 2014).
VI. CONCLUSION
For the reasons set forth herein, the Commissioner’s determination that Mann was
not disabled is reversed and this case is remanded to the Commissioner for further
proceedings. Judgment shall enter in favor of the plaintiff and against the defendant.
On remand, the ALJ shall obtain an opinion from a treating or examining source
that specifically addresses the impact of Mann’s migraine headaches on her ability to
function in the workplace. Based on that additional evidence, that ALJ shall then reassess
Mann’s claim through the sequential evaluation process.
Among other things, this
analysis should include (a) consideration of whether Mann’s impairment meets or equals
Listing 11.03 and, if not, (b) a reevaluation of Mann’s RFC and the resulting impact of
that RFC on Mann’s ability to perform past relevant work and other work that exists in
significant numbers in the national economy.
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IT IS SO ORDERED.
DATED this 23rd day of April, 2015.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
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