Wigginton v. Social Security Administration

Filing 16

ORDER AND REASONS: IT IS HEREBY ORDERED that the Court SUSTAINS Plaintiff's objections, and REJECTS the Magistrate Judge's recommendation. IT IS FURTHER ORDERED that the case is REMANDED to the ALJ pursuant to 42 U.S.C. 405(g) for a new hearing consistent with this Court's Order and Reasons. Signed by Judge Nannette Jolivette Brown on 3/6/2017.(mmv) (cc: SSA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MELISSA WIGGINTON

CIVIL ACTION

VERSUS

NO. 15-6694

SOCIAL SECURITY ADMINISTRATION

SECTION: “G”(4)

ORDER AND REASONS
Before the Court are Plaintiff Melissa Wigginton’s (“Plaintiff”) objections1 to the
December 9, 2016 Report and Recommendation of the United States Magistrate Judge assigned to
the case.2 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for review of the final decision
of Defendant the Acting Commissioner of the Social Security Administration (the
“Commissioner” or “Defendant”) denying her claim for disability insurance benefits (“DBI”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (the
“Act”).3 The Magistrate Judge recommended that the Administrative Law Judge’s (“ALJ”)
decision denying Plaintiff’s application for benefits be affirmed.4 Having considered Plaintiff’s
objections, the Magistrate Judge’s Report and Recommendation, the record, and the applicable
law, for the following reasons, the Court will sustain Plaintiff’s objections and reject the Magistrate
Judge’s Report and Recommendation, and remand that the case to the ALJ for a new hearing.

1

Rec. Doc. 15.

2

Rec. Doc. 14.

3

Rec. Doc. 1.

4

Rec. Doc. 14 at 9.

I. Background
A.

Procedural History
In February 2013, Plaintiff filed an application for SSI and DBI, alleging disability due to

petit mal seizures, fibromyalgia, edema of her feet or ankles, anxiety and depression and chronic
low platelets.5 After her claims were denied at the agency level, Plaintiff requested a hearing before
an ALJ, which was held on October 23, 2013.6 Plaintiff, her mother and a vocational expert
participated in the hearing.7
On February 14, 2014, the ALJ issued a decision denying Plaintiff’s application for
benefits.8 The ALJ analyzed Plaintiff’s claim pursuant to the five-step sequential evaluation
process.9 At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful

5

Adm. Rec. at 170–179, 198.

6

Id. at 32–73.

7

Id.

8

Id. at 13–28.

9

The five-step analysis requires consideration of the following:

First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled.
20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she
has no severe mental or physical impairment which would limit the ability to perform basic work-related functions,
the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual’s impairment has lasted or can be expected to last for a continuous period of twelve
months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed
impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d),
416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a
severe impairment, the claimant’s residual functional capacity and its effect on the claimant’s past relevant work are
evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the
claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).

2

activity since May 9, 2012.10 At step two, the ALJ concluded that Plaintiff has the following severe
impairments: “complex partial seizures/epilepsy, Attention Deficit Hyperactivity Disorder
(ADHD), fibromyalgia, headaches, and anxiety.”11 At step three, the ALJ held that Plaintiff did
not have an impairment or combination of impairments that meets or medically equals the severity
of one of the listed impairments under the regulations.12
At step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work “with some additional constraints.”13 Specifically, the ALJ found that Plaintiff
“can occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds; can stand/walk for a
total of 6 hours in an 8-hour workday; can sit for 6 hours in an 8-hour workday; never climb
ladders, ropes, scaffolds; occasionally climb ramps, stairs, balance, stoop, kneel, crouch and crawl;
and avoid all exposure to hazards in the workplace.”14 The ALJ determined that Plaintiff was able
to understand, remember and carry out simple instructions, and that Plaintiff could maintain
attention for at least a two-hour time period and engage in appropriate social interactions.15 At step

Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant’s
age, education, and work experience are considered to see whether he or she can meet the physical and mental demands
of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be
found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide
certain tables that reflect major functional and vocational patterns. When the findings made with respect to a claimant’s
vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not
disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969.
10

Adm. Rec. at 18.

11

Id.

12

Id. at 19.

13

Id. at 20.

14

Id.

15

Id.

3

four, the ALJ also found that Plaintiff was unable to perform any past relevant work.16 However,
at step five, the ALJ determined that given Plaintiff’s age, education, work experience and RFC,
there were jobs that existed in significant numbers in the national economy that she could
perform.17 Therefore, the ALJ determined that Plaintiff was not under a disability from May 9,
2012, through the date of the decision.18
Plaintiff requested review by the Appeals Council.19 The ALJ’s decision became the final
decision of the Commissioner for purposes of this Court’s review after the Appeals Council denied
review on May 8, 2015.20 On December 10, 2015, Plaintiff filed a complaint seeking judicial
review pursuant to Section 405(g) of the Act,21 and this matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B). On March 1, 2016, the
Commissioner answered the complaint.22
On April 11, 2016, Plaintiff filed a brief arguing that the ALJ’s decision erroneously
rejected the findings of her treating physician without providing a valid reason for doing so.23 On

16

Id. at 25.

17

Id. at 26.

18

Id.

19

Id.

20

Id. at 7–10.

21

Rec. Doc. 1.

22

Rec. Doc. 10.

23

Rec. Doc. 12.

4

May 26, 2016, the Commissioner filed a reply brief arguing that substantial evidence supports the
ALJ’s determination that Plaintiff was not disabled.24
B.

Report and Recommendation Findings
The Magistrate Judge issued her Report and Recommendation on December 9, 2016.25 The

Magistrate noted that Plaintiff’s primary argument was that the ALJ’s decision offered no valid
evidence or reason for rejecting the finding of Plaintiff’s treating physician, Dr. Larcena, regarding
the frequency and severity of Plaintiff’s migraines.26 The Magistrate stated that “[u]nder the
regulations, a treating physician may offer an opinion which reflects a judgment about the nature
and severity of the claimant’s impairments including the claimant’s symptoms, diagnosis and
prognosis, and any physical or mental restrictions.”27 The Magistrate noted that the ALJ must give
controlling weight to the opinion of a treating physician if it is “well supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with . . . other
substantial evidence.”28 However, the ALJ may discount the weight of a treating physician’s
opinion relative to other experts where the treating physician’s evidence is conclusory,
unsupported by medically acceptable clinical, laboratory or diagnostic techniques or is otherwise
unsupported by the evidence.29

24

Rec. Doc. 13.

25

Rec. Doc. 14.

26

Id. at 4.

27

Id. (citing Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995); 20 C.F.R.§ 404.1527(a)(2)).

28

Id. (quoting Martinez, 64 F.3d at 176).

29

Id. at 5 (citing Brown v. Apfel, 192 F.3d 492, 500 (5th Cir. 1999)).

5

The Magistrate Judge reviewed the administrative record and concluded that the ALJ had
conducted an exhaustive analysis of the medical records.30 The Magistrate noted that the ALJ
found that Plaintiff had sought medical treatment for her headaches at Tulane Medical Center on
a sporadic basis.31 The ALJ noted that on January 29, 2013, Plaintiff denied having headaches, and
on October 15, 2014, Plaintiff did not complain of any pain.32 The ALJ reported that Plaintiff’s
migraines were responding to Fioricet.33 The ALJ found that Dr. Larcena’s Medical Source
Statement, which concluded that Plaintiff experienced headaches about twice a week requiring her
to recline in a quiet dark room for two to three days, should not be given controlling weight because
it was wholly inconsistent with the other medical evidence in the record.34
The Magistrate Judge addressed Plaintiff’s argument that the ALJ incorrectly evaluated the
October 15, 2013 medical records by concluding that Plaintiff’s migraines were responsive to
Fioricet.35 The Magistrate reviewed the medical records, noting that the records actually mention
that “migraines usually respond to Fioricet.”36 The Magistrate found Plaintiff’s argument
unavailing because, while the ALJ was not technically accurate in her assessment of Plaintiff’s
medical record, the ALJ’s decision was still based upon substantial evidence.37 Specifically, the

30

Id. at 6.

31

Id. (citing Adm. Rec. at 22).

32

Id. (citing Adm. Rec. at 22–23).

33

Id. (citing Adm. Rec. at 23).

34

Id. (citing Adm. Rec. at 25).

35

Id.

36

Id. (citing Adm. Rec. at 368).

37

Id.

6

Magistrate found the absence of a complaint of headaches during Plaintiff’s October 2013
appointment to be of notable importance.38 The Magistrate concluded that this record was
consistent with the notion that Plaintiff’s migraines were responding to treatment, regardless of
whether that treatment was specifically Fioricet.39 The Magistrate noted that Plaintiff’s
prescription drug history identified Topamax, but the Magistrate determined that Topamax is used
to treat seizures and migraines, not only migraines as Plaintiff suggested.40 The Magistrate found
that the reference to Fioricet did not mean that Plaintiff was not responding adequately to
treatment, particularly because Plaintiff had ceased complaining of headaches between the June
28, 2013 appointment and the October 2013 appointment.41 Accordingly, the Magistrate found
the ALJ’s decision was based on substantial evidence, despite the inaccurate statement.42
Next, the Magistrate addressed Plaintiff’s contention that the ALJ erred when she rejected
the testimony of Plaintiff and her mother regarding Plaintiff’s migraine headaches.43 The
Magistrate noted that the ALJ in evaluating the matter concluded that Plaintiff’s mother’s
description of Plaintiff’s condition was so extreme that it appeared implausible.44 The Magistrate
determined that the medical records supported the ALJ’s conclusion that medications seemed to

38

Id. at 6–7 (citing Adm. Rec. at 366).

39

Id. at 7.

40

Id. (citing Adm. Rec. at 368).

41

Id. (citing Adm. Rec. at 285, 366).

42

Id.

43

Id.

44

Id. (citing Adm. Rec. at 24).

7

lessen the frequency of Plaintiff’s migraine headaches.45 The medical records indicated that
Plaintiff sought treatment for headaches in January, March, and June of 2013 and for seizures in
October 2013.46 Accordingly, the Magistrate determined that the ALJ’s decision which discounted
the credibility of Plaintiff’s mother’s account and Plaintiff’s account of the frequency of the
migraine headaches was based on substantial evidence.47
Finally, the Magistrate addressed Plaintiff’s argument that the ALJ erred when she failed
to give controlling weight to Plaintiff’s treating physician, Dr. Larcena, who concluded that
Plaintiff was having severe headaches at least twice per week.48 The Magistrate noted that Dr.
Larcena concluded that Plaintiff’s headaches required her to recline in a quiet darkened room about
twice per week for two to three days.49 The ALJ declined to give this opinion, which was found
on a Medical Source Statement, controlling weight because the opinion was wholly inconsistent
with the other medical evidence of record including Dr. Larcena’s own treatment records.50 The
Magistrate reviewed the medical records, noting that while the October 24, 2013 medical statement
completed by Dr. Larcena indicated that Plaintiff’s headaches were frequent, the October 15, 2013
medical report of Dr. Redmann indicated that Plaintiff had not complained of headaches.51 Further,

45

Id.

46

Id. (citing Adm. Rec. at 245, 251, 285, 366).

47

Id. at 8.

48

Id.

49

Id.

50

Id. (citing Adm. Rec. at 26).

51

Id. (citing Adm. Rec. at 366, 370).

8

the Magistrate noted that the medical evidence indicated that the last instance in which Plaintiff
refilled a prescription for Fioricet, which could be used to treat headaches, was May 18, 2013,
some five months before the medical statement was completed by Dr. Larcena.52 Moreover,
Plaintiff did receive prescriptions for Topamax after both her June and October 2013 visits with
Dr. Redmann.53 Accordingly, the Magistrate determined that these treatments appeared to have
worked to control Plaintiff’s headaches, and so the available objective medical evidence did not
support the medical opinion of Dr. Larcena.54 Therefore, the Magistrate concluded that the ALJ’s
decision in which she did not give controlling weight to Dr. Larcena’s finding was based upon
substantial evidence and should be affirmed.55
II. Objections
A.

Plaintiff’s Objections
Plaintiff timely filed objections to the Magistrate Judge’s Report and Recommendation on

December 23, 2016.56 She asserts that the ALJ’s decision provided no specific or valid reason for
rejecting Dr. Larcena’s finding that Plaintiff experiences headaches of sufficient severity to require
her to recline in a quiet, darkened room about twice per week for two to three days.57 She contends
that the ALJ’s conclusion that Dr. Larcena’s opinion was “wholly inconsistent with other medical

52

Id. (citing Adm. Rec. at 360).

53

Id. at 8–9 (citing Adm. Rec. at 287, 367).

54

Id. at 9.

55

Id.

56

Rec. Doc. 15.

57

Rec. Doc. 15-1 at 1 (citing Adm. Rec. at 370).

9

evidence of record including his own treatment records” was not specific because the ALJ did not
cite any specific medical records in reaching this determination.58
Plaintiff asserts that the ALJ’s decision made three references to her migraines: (1) “Dr.
Larcena’s records primarily record medications prescribed to the claimant and general complaints
of . . . headaches, vomiting”;59 (2) “[f]or instance, records from Gregory Redmann, M.D./Tulane
Medical Center dated January 29, 2013 show . . . [t]here was also no evidence of anxiety,
depression, psychiatric treatment, fainting, headaches”;60 and (3) “[p]rogress notes dated October
15, 2013 from Tulane Medical Center show the claimant did not complain of any pain. Her
migraines were responding to Fioricet.”61 Plaintiff argues that the ALJ’s decision “demonstrates
simple error in reading the [medical] notes.”62
Plaintiff asserts that the January 29, 2013 medical notes contain two references to migraine
headaches.63 She contends that the October 15, 2013 medical notes have three references to past
and present migraines.64 Moreover, Plaintiff contends that she was not taking Fioricet at that time,
but instead she was taking Topamax, which had to be increased by Dr. Redmann because her
headaches were not responding adequately to treatment.65 Plaintiff asserts that Dr. Redmann’s

58

Id. at 2.

59

Id. (citing Adm. Rec. at 22).

60

Id. (citing Adm. Rec. at 22).

61

Id. (citing Adm. Rec. at 23).

62

Id.

63

Id.

64

Id.

65

Id.

10

medical record states, “Will try to help prevent any breakthrough seizures, and treat her migraines
by increasing Topamax to 100 mg b.i.d., Migraines usually respond to Fioricet.”66 Accordingly,
Plaintiff contends that the ALJ’s decision offers no valid evidence nor valid reason for rejecting
the findings of Dr. Larcena regarding the frequency and severity of Plaintiff’s migraines.67
Plaintiff notes that her mother had to leave her home in Colorado in order to care for her
in Louisiana.68 Plaintiff contends that her father is financially supporting her and her children.69
Plaintiff asserts that “[t]he combination of plaintiff’s inability to obtain treatment records from Dr.
Sedrish and the illegibility of Dr. Larcena’s treatment records preclude compelling arguments to
this Court regarding other bases for her disability claim.”70 However, she argues that there is ample
recorded treatment for, and diagnoses of, migraine headaches.71 She notes that on October 24,
2013, Dr. Larcena confirmed that she was experiencing severe headaches at least twice per week
causing her to recline in a quiet, darkened room for two to three days.72 She asserts that Dr. Larcena
found that her headaches have been more frequent since May 2012, the proposed onset date.73
Plaintiff contends that the ALJ’s decision offers no specific or valid reason for rejecting
the findings of Dr. Larcena, and “any conceivable alternative cannot now be urged by the

66

Id. (citing Adm. Rec. at 366–68).

67

Id.

68

Id. at 3.

69

Id.

70

Id. at 4.

71

Id.

72

Id. at 4–5.

73

Id. at 5.

11

Magistrate.”74 Plaintiff relies on Loza v. Apfel, where the Fifth Circuit found that “[n]o good cause
appear[ed] in the ALJ opinion or in the record to justify the ALJ’s failure to give ‘considerable
weight’ to the treating doctor’s medical evidence.”75 Moreover, Plaintiff notes that at the
administrative hearing the vocational expert testified that severe headaches requiring Plaintiff to
cease activity at least twice per week “would eliminate jobs.”76 Accordingly, “lacking any valid
reason for rejecting the findings of Dr. Larcena and the testimony of Plaintiff and her mother,”
Plaintiff asserts that she has made a prima facie showing of disability.77
Plaintiff asserts that “a reviewing court, in dealing with a determination or judgment which
an administrative agency alone is authorized to make, must judge the propriety of such actions
solely by the grounds invoked by the agency.”78 She argues that the Magistrate’s Report and
Recommendation attempts to substitute the Magistrate’s judgment by offering arguments that the
ALJ could have made, but did not.79 Plaintiff notes that she received treatment for headaches by
Dr. Larcena on December 6, 2011, April 4, 2012, April 26, 2012, May 7, 2012, and January 24,
2013.80 Moreover, Plaintiff asserts that her statement in January 2013 that she was not
experiencing a headache referenced her pain that day, and she did list “migraine headaches under

74

Id. (citing Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000)).

75

Id. (quoting Loza v. Apfel, 219 F.3d 378 (5th Cir. 2000)).

76

Id. at 6 (citing Adm. Rec. at 72).

77

Id.

78

Id. (quoting SEC v. Chenery, 332 U.S. 194 (1947)).

79

Id.

80

Id. at 6–7.

12

her past medical history.”81 Plaintiff notes that Dr. Larcena confirmed that she was suffering from
headaches twice a week, not every day.82
Plaintiff notes that the Magistrate found the absence of a complaint of headaches during
Plaintiff’s October 2013 appointment to be “of notable importance.”83 However, Plaintiff argues
that the October 2013 record states that she had “a history of seizures, ADHD, migraine, since her
last visit,” and under the review of systems is an entry that states “Headaches: yes.”84 Therefore,
Plaintiff asserts that “the Magistrate’s Report and Recommendation not only offers prohibited
substitution of reasoning, it offers incorrect substitution of reasoning as being ‘of notable
importance.’”85
Plaintiff asserts that “[i]t is the duty of the administrative law judge to develop the facts
relative to a claim for benefits fully and fairly. When he fails in that duty, he does not have before
him sufficient facts on which to make an informed decision. Consequently, his decision is not
supported by substantial evidence.”86 Because the ALJ failed to do so here, Plaintiff asserts that
this matter should be reversed and she should be found to be disabled, or, alternatively, the matter
should be remanded with instructions that there be a new evidentiary hearing.87

81

Id. at 7 (citing Adm. Rec. at 245).

82

Id.

83

Id.

84

Id. at 8 (citing Adm. Rec. at 366–67).

85

Id.

86

Id. at 10 (quoting Kane v. Heckler, 731 F.2d 1216 (5th Cir. 1984)).

87

Id. at 10–11.

13

B.

The Commissioner’s Response
The Commissioner did not file a brief in opposition to Plaintiff’s objections despite

receiving electronic notice of the filing posted on December 23, 2016.
III. Standard of Review
A.

Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to

provide a Report and Recommendation. A district judge “may accept, reject, or modify the
recommended disposition” of a magistrate judge on a dispositive matter.88 The district judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”89 A district court’s review is limited to plain error of parts of the report which are not properly
objected to.90
B.

Standard of Review of Commissioner’s Final Decision on DIB and SSI Benefits
Under 42 U.S.C. § 405(g) the district court has the power to enter “a judgment affirming,

modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”91 Appellate review of the Commissioner’s denial of DIB
and SSI benefits92 is limited to determining whether the decision is supported by substantial

88

FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

89

Id.

90

See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
91

42 U.S.C. § 405(g).

92

The relevant law and regulations governing a claim for DIB are identical to those governing a claim for
supplemental security income (“SSI”). Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Hollis v. Bowen,
837 F.2d 1378, 1382 n. 3 (5th Cir. 1988).

14

evidence in the record and whether the proper legal standards were used in evaluating the
evidence.93 “Substantial evidence is more than a scintilla, less than a preponderance, and is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”94 The
Court must review the whole record to determine if such evidence exists.95 However, the district
court cannot “reweigh the evidence in the record, try the issues de novo, or substitute its judgment
for the Commissioner’s.”96 The ALJ is entitled to make any finding that is supported by substantial
evidence, regardless of whether other conclusions are also permissible.97 A court “weigh[s] four
elements of proof when determining whether there is substantial evidence of disability: (1)
objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the
claimant’s subjective evidence of pain and disability; and (4) his age, education, and work
history.”98
IV. Law and Analysis
A.

Law Applicable to Qualification for DIB and SSI
To be considered disabled, a claimant must show that he is unable “to engage in any

substantial gainful activity by reason of any medically determinable physical or mental impairment

93

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir.
2002); Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
94

Richardson v. Perales, 402 U.S. 389, 401 (1971); Perez, 415 F.3d at 461; Loza, 219 F.3d at 393; Villa,
895 F.2d at 1021-22 (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983); Randall v. Sullivan, 956 F.2d
105, 109 (5th Cir. 1992)).
95

Singletary v. Bowen, 798 F.2d 818, 822-23 (5th Cir. 1986).

96

Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

97

See Arkansas v. Oklahoma, 503 U.S. 91 (1992).

98

Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).

15

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.”99 The Commissioner has promulgated
regulations that provide procedures for evaluating a claim and determining disability.100 The
regulations include a five-step evaluation process for determining whether an impairment
constitutes a disability, and the five-step inquiry terminates if the Commissioner finds at any step
that the claimant is or is not disabled.101 The claimant has the burden of proof under the first four
parts of the inquiry, and if he successfully carries this burden, the burden shifts to the
Commissioner at step five to show that the claimant is capable of engaging in alternative
substantial gainful employment, which is available in the national economy.102
In the instant case, the ALJ found that Plaintiff’s “complex partial seizures/epilepsy,
Attention Deficit Hyperactivity Disorder (ADHD), fibromyalgia, headaches, and anxiety” were
severe conditions within the meaning of the Act.103 The ALJ determined that Plaintiff’s
impairments did not meet or medically equal the severity of one of the listed impairments under
the regulations.104 The ALJ found that Plaintiff had the RFC to perform light work “with some
additional constraints.”105 Specifically, the ALJ found that Plaintiff “can occasionally lift/carry 20

99

42 U.S.C. § 423(d)(1)(A).

100

20 C.F.R. §§ 404.1501 to 404.1599 & Apps., §§ 416.901 to 416.998 (2008).

101

Id. §§ 404.1520, 416.920; Perez, 415 F.3d at 461.

102

Perez, 415 F.3d at 461; Newton, 209 F.3d at 453.

103

Adm. Rec. at 18.

104

Id. at 19.

105

Id. at 20.

16

pounds and frequently lift/carry 10 pounds; can stand/walk for a total of 6 hours in an 8-hour
workday; can sit for 6 hours in an 8-hour workday; never climb ladders, ropes, scaffolds;
occasionally climb ramps, stairs, balance, stoop, kneel, crouch and crawl; and avoid all exposure
to hazards in the workplace.”106 The ALJ determined that Plaintiff was able to understand,
remember and carry out simple instructions, and that Plaintiff could maintain attention for at least
a two-hour time period and engage in appropriate social interactions.107 The ALJ concluded that
Plaintiff could not perform her past relevant work, but that jobs exist in significant numbers in the
national economy that Plaintiff could perform.108 Accordingly, the ALJ concluded that Plaintiff
was not disabled from May 9, 2012, through the date of the decision.109 The Court may disturb that
finding only if the ALJ lacked “substantial evidence” to support it.110
B.

The ALJ’s Rejection of the Findings of Plaintiff’s Treating Physician
As noted above, the ALJ found that Plaintiff had severe headaches, among other

conditions.111 In evaluating Plaintiff’s RFC, the ALJ reviewed Plaintiff’s medical records.112 The
ALJ declined to give controlling weight to Dr. Larcena’s opinion that Plaintiff experiences
headaches of sufficient severity to require her to recline in a quiet, darkened room about twice per

106

Id.

107

Id.

108

Id. at 25.

109

Id. at 26.

110

See Perez, 415 F.3d at 461

111

Adm. Rec. at 18.

112

Id. at 20–25.

17

week for two to three days because “his opinion is wholly inconsistent with the other medical
evidence of record including his own treatment records.”113 The Magistrate concluded that the
ALJ’s decision in which she did not give controlling weight to Dr. Larcena’s finding was based
upon substantial evidence and should be affirmed.114 Plaintiff objects to this determination,
arguing that the ALJ’s decision provided no specific or valid reason for rejecting Dr. Larcena’s
finding.115 She contends that the ALJ’s conclusion that Dr. Larcena’s opinion was “wholly
inconsistent with other medical evidence of record including his own treatment records” was not
specific because the ALJ did not cite any specific medical records in reaching this determination.116
Plaintiff argues that the ALJ’s decision “demonstrates simple error in reading the [medical]
notes.”117 Accordingly, the Court reviews this issue de novo.
Under the Social Security Act,
[t]he Commissioner of Social Security is directed to make any findings of fact, and
decisions as to the rights of any individual applying for a payment under this
subchapter. Any such decision by the Commissioner of Social Security, which
involves a determination of disability and which is in whole or in part unfavorable
to such individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner's
determination and the reason or reasons upon which it is based.118

113

Id. at 25.

114

Rec. Doc. 14 at 9.

115

Rec. Doc. 15-1 at 1.

116

Id. at 2.

117

Id.

118

42 U.S.C. § 405(b)(1).

18

Therefore, under “the explicit terms of the statute, the ALJ is required to discuss the evidence
offered in support of [the plaintiff’s] claim for disability and to explain why she found [the
plaintiff] not to be disabled at that step.”119 However, the Fifth Circuit has held that “[p]rocedural
perfection in administrative proceedings is not required’ as long as ‘the substantial rights of a party
have not been affected.’”120
While this Court may not “reweigh the evidence or substitute its judgment for that of the
administrative fact finder,”121 the Fifth Circuit has applied the harmless error standard where the
ALJ misstated the medical evidence.122 In Brunson v. Astrue, “the ALJ misstated the record when
he stated that it contained no evidence of any ongoing psychiatric treatment and no evidence that
Mr. Brunson was ever prescribed medication during the period in question.”123 The Fifth Circuit
held that the error was harmless because “the record indicate[d] that Mr. Brunson took antidepressant medication which controlled his symptoms of depression during the relevant time
period,” and “impairments that reasonably can be remedied or controlled by medication or
treatment are not disabling.”124 Accordingly, the Fifth Circuit found that “it would not be
appropriate . . . to remand the case for the purpose of having the ALJ correct this misstatement.”125

119

Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007).

120

Id. (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988)).

121

Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985).

122

Brunson v. Astrue, 387 F. App’x 459, 461 (5th Cir. 2010).

123

Id.

124

Id. (citing Johnson v. Bowen, 864 F.2d 340, 347 (5th Cir. 1988)).

125

Id.

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Although not conclusive, an evaluation by the claimant’s treating physician should be
accorded great weight.126 “A treating physician’s opinion on the nature and severity of a patient’s
impairment will be given controlling weight if it is ‘well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial
evidence.’”127 “[T]he ALJ is free to reject the opinion of any physician when the evidence supports
a contrary conclusion.”128
In Loza v. Apfel, the Fifth Circuit noted that “[m]edical evidence must support a physician’s
diagnosis, but if it does the expert opinion of a treating physician as to the existence of a disability
is binding on the fact-finder unless contradicted by substantial evidence to the contrary.’”129
Further, “it is clear that the ALJ must consider all the record evidence and cannot ‘pick and choose’
only the evidence that supports his position.”130 20 C.F.R. § 404.1527(c) provides a list of factors
that the ALJ should consider in determining whether to give a treating physician controlling
weight, including: (1) the “length of the treatment relationship and the frequency of examination”;
(2) the “nature and extent of the treatment relationship”; (3) the “relevant evidence” the medical
source presented to support the opinion; (4) the consistency of the opinion with the record as a
whole; (5) the specialization of the medical source; and (6) any other factors that “tend to support
or contradict the opinion.”

126

Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994).

127

Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995) (citing 20 C.F.R. § 404.1527(d)(2)).

128

Id.; Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (internal citations omitted).

129

Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (internal citations and quotation marks omitted).

130

Id. (internal citations omitted).

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Plaintiff argues that the ALJ erred in rejecting the Medical Source Statement completed by
Dr. Larcena on October 24, 2013, which provided in part that at least twice per month Plaintiff
experienced headaches of sufficient severity to require her to recline in a quiet, dark room for two
to three days.131 The Medical Source Statement also stated that Plaintiff’s headaches had become
more frequent since May 2012, and that she was experiencing severe headaches at least twice per
week.132 Plaintiff asserts that the ALJ did not provide a valid reason for this determination.
The ALJ’s decision made the following references to Plaintiff’s medical treatment for her
migraine headaches. First, the ALJ’s decision noted that the medical notes provided by Dr. Larcena
were for the most part illegible.133 However, the ALJ concluded that the treatment provided by Dr.
Larcena “was routine and conservative in nature,” and the ALJ found no evidence from Dr.
Larcena’s records that Plaintiff’s complaints reached “a disabling level or required aggressive
management.”134 The ALJ also reviewed a medical record completed by Dr. Gregory Redmann at
the Tulane Medical Center on January 29, 2013.135 The ALJ noted that the January 29, 2013 record
showed “no evidence of . . . headaches.”136 Finally, the ALJ reviewed a progress note dated
October 15, 2013, from the Tulane Medical Center, and the ALJ concluded that the record reflected

131

Adm. Rec. at 370.

132

Id.

133

Adm. Rec. at 22.

134

Id.

135

Id.

136

Id.

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that Plaintiff’s “migraines were responding to Fiorcet.”137 The ALJ determined that Plaintiff’s
“migraines were improving with medications.”138 Therefore, the ALJ concluded that Dr. Larcena’s
Medical Source Statement should not be accorded controlling weight because it was “wholly
inconsistent with the other medical evidence of record including his own treatment records.”139
Plaintiff argues that the ALJ’s opinion “demonstrates simple error in reading the [medical]
notes.”140 She contends that the ALJ’s opinion incorrectly stated that the January 29, 2013 medical
record of Dr. Gregory Redmann showed no evidence of headaches.141 Plaintiff points out that the
January 29, 2013 medical notes contained two references to migraine headaches: (1) migraine
headaches are listed under Plaintiff’s past medical history; and (2) the assessment states that Dr.
Redmann would “try to prevent any breakthrough [seizures], and treat [Plaintiff’s] migraines by
increasing topamax slightly by 25 mg PM dose.”142
Plaintiff also contends that the ALJ misstated the medical records by stating that the
“[p]rogress notes dated October 15, 2013 from Tulane Medical Center show the claimant did not
complain of any pain. Her migraines were responding to Fioricet.”143 Plaintiff points out that the
October 15, 2013 medical notes have three references to past and present migraines.144 The

137

Id. at 23.

138

Id. at 24.

139

Id. at 25.

140

Rec. Doc. 15-1 at 2.

141

Id. (citing Adm. Rec. at 22).

142

Adm. Rec. at 245.

143

Rec. Doc. 15-1 at 2 (citing Adm. Rec. at 23).

144

Id.

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October 15, 2013 record identified migraine headaches as a condition under Plaintiff’s past
medical history.145 The record lists migraines as a condition under the “assessment” section of the
form.146 Finally, the record states, “Will try to help prevent any breakthrough [seizures], and treat
her migraines by increasing topamax to 100 mg bid. Migraines usually respond to fiorcet [sic].”147
The ALJ found that Dr. Larcena’s Medical Source Statement regarding the severity of
Plaintiff’s headaches was inconsistent with the other medical evidence of record including Dr.
Larcena’s own treatment records. Contrary to the ALJ’s assertion that Plaintiff did not complain
of headaches during her medical appointments in January and October of 2013, the progress notes
from both of those appointments show that Dr. Redmann increased Plaintiff’s dosage of Topamax
to “treat her migraines.”148 The increased dosage of Topamax to treat Plaintiff’s migraines appears
to be consistent with Dr. Larcena’s opinion that Plaintiff’s headaches had increased in severity
since May 2012. Moreover, in rejecting the opinion of Dr. Larcena, the ALJ did not address the
fact that Dr. Larcena had been treating Plaintiff since at least September 7, 2011, over two years
before completing the Medical Source Statement. Further, the ALJ’s decision did not consider any
of the other factors set forth at 20 C.F.R. § 404.1527(c) for determining whether to give a treating
physician’s opinion controlling weight.

145

Adm. Rec. at 366.

146

Id. at 367.

147

Id. at 368.

148

Id. at 245, 368. The Magistrate found the absence of a complaint of headaches during Plaintiff’s October
2013 appointment to be “of notable importance.” However, this statement is an inaccurate recitation of the October
2013 record. The “review of symptoms” section of the report states “Headache: yes.” Id. at 367. Moreover, as noted
above, the record states that the dosage of Topamax would be increased to treat Plaintiff’s migraines. Id. at 368.

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While it is not permitted to reweigh the evidence, the Court finds that the ALJ’s
misstatements of the evidence substantially affected Plaintiff’s rights. Accordingly, the Court will
sustain Plaintiff’s objection, and will remand to the ALJ pursuant to 42 U.S.C. § 405(g) for a new
hearing and more adequate consideration of the record.
V. Conclusion
For the foregoing reasons, the Court concludes that the ALJ’s misstatements of the
evidence substantially affected Plaintiff’s rights. Accordingly,
IT IS HEREBY ORDERED that the Court SUSTAINS Plaintiff’s objections, and
REJECTS the Magistrate Judge’s recommendation;
IT IS FURTHER ORDERED that the case is REMANDED to the ALJ pursuant to 42
U.S.C. § 405(g) for a new hearing consistent with this Court’s Order and Reasons.
NEW ORLEANS, LOUISIANA, this ____ day of March, 2017.
6th

__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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