Brammell v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER. The Commissioner's final decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith. Signed by District Judge Eric F. Melgren on 11/18/2021. (sz)

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

Mary Francis B.,
Plaintiff,
vs.

Case No. 20-1236-EFM

KILOLO KRJAKAZI,1 Acting Commissioner
of Social Security,
Defendant.

MEMORANDUM AND ORDER
Plaintiff Mary Francis B. seeks judicial review of a final decision by Defendant, the Acting
Commissioner of the Social Security Administration (the “Commissioner”), denying her
application for disability insurance benefits and supplemental security income under Titles II and
XVI of the Social Security Act (the “Act”). Plaintiff alleges that the administrative law judge
(“ALJ”) erred in failing to consider the limitations from her migraine headaches when assessing
her residual functional capacity (“RFC”). For the reasons set forth below, the Court orders that
the Commissioner’s final decision should be reversed and that judgment will be entered under the
fourth sentence of 42 U.S.C. § 405(g) remanding the case for further proceedings consistent with
this opinion.

1
On July 9, 2021, Kilolo Kijakazi was named the Acting Commissioner of Social Security. She is
automatically substituted as defendant in this case. See Fed. R. Civ. P. 25(d).

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 2 of 11

I.

Factual and Procedural Background

Plaintiff was age 42 as of her alleged disability onset date of May 7, 2016. Her alleged
disability encompasses several physical impairments but the only one applicable to this appeal is
migraines. Plaintiff reported that she has experienced migraines her entire adult life, but in 2018,
they began affecting her differently. In the summer of 2018, she twice sought emergent treatment
for her migraines, and her provider prescribed her migraine medication.
Plaintiff applied for disability insurance benefits and supplement security income under the
Act in February 2018, several months before Plaintiff began seeking treatment for her migraines.
After two administrative denials, Plaintiff requested a hearing before an ALJ, which was granted.
The hearing was held in July 2019, and Plaintiff and a vocational expert testified. Plaintiff testified
that she experiences one migraine per week, and that her symptoms last for two days. She further
testified that her migraines are alleviated by staying in a dark room, getting a shot from the doctor,
or taking medicine. She stated that she does not take migraine medication because she has
difficulty getting it due to insurance reasons. She also noted that her migraines still occur when
she takes medicine, just for a shorter amount of time.
In September 2019, the ALJ issued a decision applying the regulatory five-step sequential
process for evaluating disability claims. As relevant here, the ALJ determined that Plaintiff’s
migraine headaches constituted a medically determinable impairment but were not “severe” as
defined in agency regulations. Specifically, the ALJ found:
Treatment records reveal that the claimant has a history of migraines. At the
hearing, she testified that she experiences one migraine per week, and that the
symptoms last for up to two days. Treatment notes disclose that the claimant
indicates that she has experienced such headaches since she was 16 years of age.
On the other hand, the claimant reported that she does not take generally take [sic]
medication for migraines. . . . The claimant indicated, at the hearing, that she
continues to not take migraine medication. There is no record of inpatient
-2-

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 3 of 11

hospitalization due to migraines, and no evidence of disabling functional
limitations.
The ALJ then determined that Plaintiff retained the following RFC:
to perform light work . . . in that the claimant can lift and/or carry/push and/or pull
20 pounds occasionally, 10 pounds frequently. She can sit, with normal breaks, for
a total of 6 hours per 8-hour workday, and stand and/or walk, with normal breaks,
for a total of 6 hours per 8-hour workday. She can frequently climb ramps and
stairs, and occasionally climb ladders, ropes, or scaffolds. She can frequently stoop,
kneel, crouch, and crawl. She can tolerate occasional exposure to extreme heat and
humidity but she must avoid pulmonary irritants such as fumes, dusts, gases,
noxious odors, and poorly-ventilated areas. She can understand, remember, and
apply instructions to perform simple and detailed tasks commensurate with jobs
SVP 4 and below. She can make work decisions commensurate with those tasks.
She can concentrate to work at a consistent pace for two-hour periods before and
after customary breaks. She can tolerate occasional interactions with coworkers
and the general public. She can adapt to occasional changes in a work environment
within these limitations.
The ALJ relied on vocational expert testimony to find that Plaintiff was unable to perform her past
relevant work, but she could perform work as an office mail clerk, marker, document preparer, and
hand mounter. Therefore, the ALJ concluded that Plaintiff was not disabled under the Act.
Plaintiff requested review of the ALJ’s decision from the Appeals Council. The Appeals
Council denied review, making the ALJ’s decision the final decision of the Commissioner. Having
exhausted her administrative remedies, Plaintiff now seeks review of the ALJ’s decision from this
Court.
II.

Legal Standard

Judicial review of the Commissioner’s decision is guided by the Act, which provides, in
part, that the “findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.”2 The Court must therefore determine whether the

2

42 U.S.C. § 405(g).

-3-

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 4 of 11

Commissioner made factual findings that are supported by substantial evidence in the record and
applied the correct legal standard to those factual findings.3 Substantial evidence “is more than a
scintilla: . . . It means—and means only—‘such evidence as a reasonable mind might accept as
adequate to support a conclusion.’ ”4 The Court may “neither reweigh the evidence nor substitute
[its] judgment for that of the [Commissioner].”5
“An individual is under a disability only if that individual can establish that she has a
physical or mental impairment which prevents her from engaging in substantial gainful activity
and is expected to result in death or to last for a continuous period of at least twelve months.”6
This impairment “must be severe enough that she is unable to perform her past relevant work, and
further cannot engage in other substantial gainful work existing in the national economy,
considering her age, education, and work experience.”7
Pursuant to the Act, the Social Security Administration has established a five-step
sequential evaluation process for determining whether an individual is disabled.8 The steps are

3

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th
Cir. 2005).
4

Biestek v. Berryhill, --- U.S.---, 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
5
Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec’y of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991)).
6

Brennan v. Astrue, 501 F. Supp. 2d 1303, 1306–07 (D. Kan. 2007) (citing 42 U.S.C. § 423(d)).

7

Barkley v. Astrue, 2010 WL 3001753, at *2 (D. Kan. 2010) (citing Barnhart v. Walton, 535 U.S. 212, 217–
22 (2002); 20 C.F.R. § 416.920 (2005)).
8

Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004); see also 20 C.F.R. § 404.1520(a).

-4-

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 5 of 11

designed to be followed in order.9 If it is determined, at any step of the process, that the claimant
is or is not disabled, further evaluation is unnecessary.10
The first three steps of the sequential evaluation require the Commissioner to assess: (1)
whether the claimant has engaged in substantial gainful activity since the onset of the alleged
disability; (2) whether the claimant has a severe, or combination of severe, impairments; and (3)
whether the severity of those impairments meets or equals a designated list of impairments.11 If
the impairment does not meet or equal one of these designated impairments, the ALJ must then
determine the claimant’s RFC, which is the claimant’s ability “to do physical and mental work
activities on a sustained basis despite limitations from her impairments.”12
Upon determining the claimant’s residual functional capacity, the Commissioner turns to
steps four and five, which require the Commissioner to determine whether the claimant can either
perform past relevant work or can generally perform other work that exists in the national
economy, respectively.13 The claimant bears the burden in steps one through four to prove an
impairment or combination thereof that prevents performance of past relevant work.14 The burden
then shifts to the Commissioner at step five to show that, despite the claimant’s alleged

9

Barkley, 2010 WL 3001753, at *2.

10

Id.

11

Lax, 489 F.3d at 1084 (citations omitted).

12

Barkley, 2010 WL 3001753, at *2 (citing 20 C.F.R. § 416.920(e)).

13

Id. (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)).

14

Lax, 489 F.3d at 1084.

-5-

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 6 of 11

impairments, based on the claimant’s RFC and other factors, the claimant could perform other
work in the national economy.15
III.

Analysis

Plaintiff claims that the ALJ failed to properly consider her migraines throughout his
decision. Plaintiff argues that contrary to the ALJ’s decision, the record supports a finding that
her migraines are “severe,” as defined in the regulations. Plaintiff, however, does not assign error
to the ALJ’s finding at step two. Instead, she argues that the ALJ errored at step four in assessing
her RFC. Plaintiff claims that the only reference to migraines in the ALJ’s decision after step two
was the “boilerplate language” that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause [Plaintiff’s] alleged symptoms.” Plaintiff argues that the ALJ’s
failure to consider the limitations resulting from her migraines constitutes reversible error.
The Commissioner acknowledges that the ALJ was required to consider the limiting effects
of Plaintiff’s migraines at the RFC phase of the evaluation and admits that the ALJ did not
specifically address migraines in the RFC assessment. The Commissioner argues, however, that
any error in this regard was harmless. According to the Commissioner, the ALJ’s step two analysis
is illustrative of, and relevant to, his later RFC findings, and the ALJ’s RFC assessment reasonably
accounted for Plaintiff’s pain and other symptoms.
At step two, the ALJ determined that Plaintiff’s migraines are a medically determinable
impairment but that they are not “severe” as defined in the regulations. An impairment is severe
if it significantly limits a claimant’s ability to do basic work activities.16 In the Tenth Circuit, this

15

Id. (citation omitted).

16

20 C.F.R. §§ 404.1522, 416.922.

-6-

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 7 of 11

only requires a “de minimis” showing.17 In other words, the claimant need only show that an
impairment “would have more than a minimal effect on [her] ability to do basic work activities.”18
Here, the Court agrees with Plaintiff that the record evidence supports a finding that
Plaintiff’s migraines are severe. Plaintiff sought emergent care for the treatment of her migraines
twice during the summer of 2018 and again saw her medical provider in December 2018 for
migraine treatment. Additionally, the ALJ appears to accept Plaintiff’s allegations that she
experiences one migraine per week and that the migraines can last up to two days. And, although
the ALJ did not note it in his decision, Plaintiff testified at the hearing that the only way to alleviate
the migraines is to stay in a dark room, get a shot from a doctor, or take medicine, and the
prescribed medicine is only effective in reducing the duration of the migraines not eliminating
them.
Furthermore, the facts relied upon by the ALJ in determining that Plaintiff’s migraines are
not severe do not negate the effects of her migraines on her ability to work. For example, the ALJ
relied on Plaintiff’s lack of inpatient hospital stays to discount the severity of her impairment. But,
the failure to receive in-patient hospital treatment cannot change the detrimental effects Plaintiff
experiences when she has a migraine.19 Thus, the Court agrees with Plaintiff that she made a de
minimis showing that her migraines are severe.

17

Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997) (citation omitted).

18

Williams, 844 F.2d at 751.

19

See Hennigh v. Colvin, 2016 WL 1298074, at *4 (D. Kan. 2016) (disagreeing with the ALJ that the
claimant’s failure to seek ongoing neurological treatment, failure to use injection therapy, failure to seek emergency
room treatment, continuing chiropractic care, and normal MRI and CT results negates the effects of the claimant’s
migraines).

-7-

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 8 of 11

As Plaintiff acknowledges in her brief, the ALJ’s finding at step two does not automatically
require reversal. The Tenth Circuit has held that “[o]nce the ALJ finds that the claimant has any
severe impairment, he has satisfied the analysis for the purposes of step two. His failure to find
that additional alleged impairments are also severe is not in itself cause for reversal.”20 But, the
non-severe impairment does not disappear from the ALJ’s analysis.21 In assessing a claimant’s
RFC, “the ALJ is required to consider the effect of all of the claimant’s medically determinable
impairments, both those he deems ‘severe’ and those ‘not severe.’ ”22 Thus, the Court’s analysis
of the ALJ’s RFC assessment, and not the ALJ’s findings at step two, is determinative as to
whether the ALJ committed reversible error in this case.
Here, it’s not clear whether the ALJ considered the effects of Plaintiff’s migraines in
assessing the RFC, and remand is necessary to correct that error. The RFC assessment says nothing
regarding Plaintiff’s migraines or any limitations resulting from them.

Indeed, as the

Commissioner points out, at the RFC stage, the ALJ discussed Plaintiff’s severe impairments—
fibromyalgia, obesity, and asthma. He did not, however, discuss any of Plaintiff’s non-severe
impairments.
Furthermore, while the ALJ states that he considered “all symptoms” in his RFC
assessment, there is no indication that this is the case. In listing Plaintiff’s subjective allegations,
the ALJ makes no mention of her allegations related to her migraines. He then uses boilerplate

20

Hill v. Astrue, 289 F. App’x 289, 292 (10th Cir. 2008); see also Oldham v. Astrue, 509 F.3d 1254, 125657 (10th Cir. 2007) (holding that at step two, an ALJ need only make a finding that a claimant has severe impairments
because when assessing the RFC the ALJ is required to determine the extent to which all of the claimant’s impairments
restrict the claimant’s ability to work).
21

Hill, 289 F. App’x at 292.

22

Id. (quoting SSR 96-8P, 1996 WL 374184, at *5).

-8-

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 9 of 11

language to conclude that “the claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible for the
reasons explained in the decision.” This language says nothing regarding whether the ALJ
considered RFC limitations resulting from Plaintiff’s migraines.
Even if the Court considered the ALJ’s step two analysis as part of the RFC assessment,
the ALJ’s decision is not supported by substantial evidence. At step two, the ALJ discounted
Plaintiff’s subjective allegations on the basis that she did not initially report taking medication for
migraines, she continues to not take medication, and she has not been hospitalized due to
migraines. The ALJ did not identify which of Plaintiff’s allegations he deemed incredible and
which, if any, he believed. Furthermore, to the extent the ALJ relied on Plaintiff’s noncompliance
with prescribed medication to evaluate Plaintiff’s credibility, the ALJ erred because he did not
apply the Frey test.
In Frey v. Bowen,23 the Tenth Circuit held that before the ALJ may rely on the claimant’s
failure take medication as part of his credibility determination, the ALJ must consider “(1) whether
the treatment at issue would restore claimant’s ability to work; (2) whether the treatment was
prescribed; (3) whether the treatment was refused; and if so (4) whether the refusal was without
justifiable excuse.”24 In Qualls v. Apfel,25 the Tenth Circuit clarified that the ALJ did not have to

23

816 F.2d 508 (10th Cir. 1987).

24

Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) (quoting Frey, 816 F.2d at 517).

25

206 F.3d 1368 (10th Cir. 2000).

-9-

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 10 of 11

apply the Frey test when the treatment had not been prescribed, but where the ALJ was only
considering the attempts the claimant made to relieve his pain in assessing credibility.26
The Commissioner argues that the Frey test is in applicable in this case because it does not
apply in situations where the ALJ is assessing whether the claimant attempted to relieve her
symptoms. The Commissioner’s argument, however, relies solely on the ALJ’s finding that
Plaintiff initially reported that she does not take medication. It ignores the fact that Plaintiff’s
providers later prescribed migraine medication. Thus, contrary to the Commissioner’s argument,
the ALJ was required to conduct the Frey test before discounting Plaintiff’s subjective allegations
based on Plaintiff’s noncompliance with prescribed medication. The ALJ’s failure to do so is
reversible error.27
As this Court explained in Hennigh v. Colvin,28 an ALJ’s decision “must reveal the ALJ
considered the effects of all impairments when assessing [the] RFC.”29 Here, the ALJ’s analysis
at step two suggests that he did not believe Plaintiff’s subjective allegations regarding her
migraines to be credible. But, the ALJ “did not affirmatively make that finding, and he did not
explain which of those allegations he credited and which he did not” after generally stating that
her allegations were not entirely consistent in his RFC assessment.30 Even if the Court considered
the ALJ’s step two findings as part of his RFC assessment, these findings are in error because he

26

Id. at 1372.

27
See K.S. v. Saul, 2021 WL 2338250, at *6 (D. Kan. 2021) (holding that Frey must be applied when the
ALJ denies benefit and is evaluating the credibility of a plaintiff’s allegations with respect to medication
noncompliance).
28

2016 WL 1298074.

29

Id. at *6.

30

Id.

-10-

Case 6:20-cv-01236-EFM Document 19 Filed 11/18/21 Page 11 of 11

did not apply the Frey test in discounting Plaintiff’s subjective allegations based on her failure to
take prescribed medication. Furthermore, Plaintiff’s allegations related to her migraines show that
her symptoms more than minimally affected her ability to perform basic work activities, but the
ALJ failed to include a discussion of those symptoms or assess resulting limitations. Therefore,
the Court must remand the case for the ALJ to appropriately assess Plaintiff’s migraines.
IT IS THEREFORE ORDERED that the Commissioner’s final decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C.
§ 405(g) REMANDING the case for further proceedings consistent herewith.
IT IS SO ORDERED.
Dated this 18th day of November, 2021.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

-11-