Brown v. Astrue

Filing 23

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered granting 19 Motion for Order Reversing Decision of Commissioner and denying 21 Motion for Order Affirming Decision of Commissioner. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
CINDY BROWN,
)
)
Plaintiff,
)
)
Civil Action No.
v.
)
09-40211-FDS
)
MICHAEL J. ASTRUE, Commissioner,
)
)
Social Security Administration,
)
Defendant.
)
_______________________________________)

MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
AND PLAINTIFF’S MOTION TO REVERSE
SAYLOR, J.
This is an appeal of the final decision of the Commissioner of the Social Security
Administration denying the application of plaintiff Cindy Brown for social security disability
insurance (“SSDI”) benefits. Brown appeals the denial of her application for SSDI pursuant to
Section 205(g) of the Social Security Act, 42 U.S.C. §§ 405(g). Brown contends that she
became disabled on August 18, 2006. She submitted medical records indicating that she suffers
from depression, serum negative rheumatoid arthritis, migraine headaches, and fibromyalgia.
She now disputes the Commissioner’s holding that she is not “disabled” within the meaning of
the Social Security Act.
Pending before the Court are Brown’s appeal and the Commissioner’s motion to affirm.
For the reasons stated below, the motion to affirm will be denied, and the motion to reverse will
be granted.
I.

Background

Cindy Brown is a 42-year-old high school graduate. (AR at 121, 123). At the time she
submitted her application, Brown’s teenage daughter lived with her. (Id. at 22-23). Brown has
previously worked as an exterminator, a receptionist, a school-bus driver, and a customer-service
agent. (Id. at 40). She has not worked since August 18, 2006, the alleged onset date of her
disability. (Id. at 26, 115).
A.

Medical Evidence

On June 8, 2005, Brown started seeing chiropractor Paul Kowacki to treat pain related to
fibromyalgia and arthritis. (Id. at 195-206). Brown continued to see Kowacki through April 6,
2009. (Id. at 347-50).
On September 19, 2005, Raymond Sauls, M.D., Brown’s primary care physician,
diagnosed fibromyalgia and noted a history of migraine headaches. (Id. at 244-45). Dr. Sauls
prescribed Vicodin to help alleviate musculoskeletal pain. (Id. at 244). At a follow-up
appointment on December 15, 2005, Dr. Sauls further diagnosed plantar fasciitis and restless leg
syndrome. (Id. at 243). Dr. Sauls instructed her to keep taking her current medications. (AR at
243). Brown followed up with Dr. Sauls periodically thereafter. (Id. at 238-46). However, she
did not see Dr. Sauls between August 2006 and August 2007. (Id. at 241-42).
As noted, Brown stopped working on August 18, 2006. (Id. at 26, 115).
In August 2007, Brown underwent physical therapy at Ramey Rehabilitation, Inc., for
pain associated with rheumatoid arthritis and fibromyalgia. (Id. at 167-72). At her initial
consultation, Brown stated that she felt pain everywhere, and reported a pain level of five on a
scale of ten. (Id. at 170, 172). She underwent pool therapy and normal physical therapy. (Id. at
171). Following that treatment, her pain decreased to a reported level of four. (Id. at 170).

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On August 27, 2007, she applied for SSDI benefits. (Id. at 90-94).
At an appointment with Dr. Sauls on August 30, 2007, he noted that she still had pain in
her joints and struggled to put on her jewelry because of swelling in her hands. (Id. at 241).
Ramey Rehabilitation notified Dr. Sauls on October 10, 2007, that Brown had been discharged
because she failed to schedule additional appointments and failed to return calls. (Id. 170, 247).
On November 6, 2007, Brown saw Allan Ramey, M.D., a rheumatologist. He noted that
she suffered from headaches. (Id. at 230).
On January 26, 2008, Brown went to Athol Memorial Hospital Emergency Room
complaining of a severe migraine headache. (Id. at 249-54). She underwent a radiological
examination, but the results were negative. (Id. at 254). She was treated with medication and
discharged. (Id. at 249).
On February 7 and April 7, 2008, Dr. Sauls again noted that Brown suffered from
fibromyalgia, rheumatoid arthritis, migraine headaches, and depression. (Id. at 238-39). Dr.
Sauls provided Brown with samples of Cymbalta and Imitrex and advised her to continue all
other medications. (Id.).
On May 7, 2008, Dr. Ramey noted that Brown suffered from fibromyalgia and arthritis.
(Id. at 212). At a visit on June 11, he again noted that she experienced headaches. (Id. at 210).
On August 9, 2008, in correspondence to Dr. Sauls, Dr. Ramey indicated that Brown had begun
gold salts therapy to treat pain associated with multiple joints and malaise associated with her
arthritis. (Id. at 208). He noted that she was tolerating the therapy well. (Id.).
Brown is currently on a variety of medications. She takes Arava, Nabumetone,
Prednisone, and Plaquenil for her rheumatoid arthritis. (Id. at 28-29, 161). She takes Fluoxetine

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for her depression and Amitriptyline as a sleep aid. (Id. at 29-30, 161). She takes Requip for
restless leg syndrome. (Id. at 28-29, 161). For pain, she takes Vicodin and Lidoderm
Lidocaine patches, and Pro Air HFA for asthma. (Id. at 30,162). She takes Treximet for
migraine headaches. (Id. at 31, 162).
B.

Residual Functional Capacity Assessment

On September 25, 2007, Malin Weeratne, M.D., calculated Brown’s physical residual
functional capacity (“RFC”) based on her medical records. (Id. at 173-80). Dr. Weeratne
indicated that Brown suffered from fibromyalgia and rheumatoid arthritis. (Id. at 173). Dr.
Weeratne determined that Brown could occasionally lift 20 pounds and could frequently lift ten
pounds; and that she could stand or walk with normal breaks for at least two hours out of an
eight-hour workday and sit with normal breaks for a total of six hours in an eight-hour workday.
(Id. at 174). Dr. Weeratne also indicated that because of her impairments, she could only climb,
balance, stoop, kneel, crouch, and crawl occasionally. (Id. at 175). She noted that Brown did
not have any communicative, manipulative, or visual limitations, but that she should avoid
concentrated exposure to extreme cold and hazards (such as machinery and heights). (Id. at 17677).
On April 22, 2009, Dr. Ramey calculated Brown’s physical RFC. (Id. at 351-52). Dr.
Ramey stated that Brown’s ability to lift and carry were affected by her chronic back pain and
tenderness; however, he did not indicate the maximum amount of weight Brown would be able
to carry. (Id. at 351). Dr. Ramey stated that she could stand or walk for less than two hours
without rest and two to four hours with rest. (Id.) While he concluded that she could sit for two
hours without interruption, he did not indicate how many hours in an eight-hour workday she

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could sit. (Id.). Dr. Ramey found that she could climb, balance, stoop, crouch, and kneel
occasionally, but not crawl. (Id. at 352). Moreover, he noted that she should avoid heights,
temperature extremes, humidity, and vibration. (Id.).
C.

Procedural Background

Brown applied for SSDI benefits on August 27, 2007, contending that she became
disabled on August 18, 2006. (Id. at 90-94). Her application was denied by both the
Commissioner on initial review and after subsequent review by a Federal Reviewing Official.
(Id. at 45-53). She requested an administrative hearing, and the hearing was held on May 6,
2009 by an Administrative Law Judge (“ALJ”). (Id. at 16-44). The ALJ heard testimony both
from Brown, who was represented by a non-attorney, and a vocational expert. (Id. at 7, 16).
The ALJ issued his decision on June 23, 2009, finding that Brown was not disabled. (Id.
at 7-15). This decision became final on September 30, 2009 after the Decision Review Board
failed to complete a timely review. (Id. at 1-3). Having exhausted all her administrative
remedies, Brown filed this complaint on December 4, 2009. See 20 C.F.R. § 405.420(b)(2).
II.

Analysis
A.

Standard of Review

This Court’s review of a Social Security disability benefit determination is limited. See
42 U.S.C. § 405(g) (2010). Questions of law are reviewed de novo, but findings of fact, “if
supported by substantial evidence, shall be conclusive.” See id.; Seavey v. Barnhart, 276 F.3d 1,
9 (1st Cir. 2001); Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.
1987) (noting that the court “must affirm the Secretary’s resolution, even if the record arguably
could justify a different conclusion, so long as it is supported by substantial evidence”).

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Substantial evidence means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
B.

Standard for Entitlement to SSDI and SSI Benefits

An individual is not entitled to SSDI or SSI benefits unless she is “disabled” within the
meaning of the Social Security Act. See 42 U.S.C. §§ 423(a)(1)(A), (d) (setting forth the
definition of disabled in the context of SSDI); id. §§ 1382(a)(1), 1382c(a)(3) (same in the
context of SSI). “Disability” is defined, in relevant part, 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The impairment
must be severe enough to prevent plaintiff from performing not only past work, but any
substantial gainful work existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B); 20 C.F.R. §§ 404.1560(c)(1), 416.960(c)(1).
The Commissioner uses a sequential five-step process analysis to evaluate whether a
claimant is disabled. See 20 C.F.R. § 404.1520. The steps are:
1) if the applicant is engaged in substantial gainful work activity, the application is
denied; 2) if the applicant does not have, or has not had . . . a severe impairment or
combination of impairments, the application is denied; 3) if the impairment meets the
conditions for one of the ‘listed impairments’ in the Social Security regulations, then
the application is granted; 4) if the applicant’s ‘residual functional capacity’ is such
that [s]he . . . can still perform past relevant work, then the application is denied; 5)
if the applicant, given his or her residual functional capacity, education, work
experience, and age, is unable to do any other work, the application is granted.

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Seavey, 276 F.3d at 5; see 20 C.F.R. § 404.1520(a)(4).1 The claimant has the burden of
production and proof during steps one through four, and the Commissioner has the burden at step
five to offer evidence of specific jobs in the economy that the applicant can perform. Freeman v.
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At that juncture, the ALJ assesses the claimant’s
RFC in combination with the “vocational factors of [the claimant’s] age, education, and work
experience,” 20 C.F.R. § 404.1560(c)(1), to determine whether he or she can “engage in any . . .
kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§
423(d)(2)(A), 1382c(a)(3)(B).
C.

Administrative Law Judge’s Findings

In evaluating the evidence, the ALJ followed the five-step procedure set forth in 20
C.F.R. § 404.1520(a)(4), but concluded that it was unnecessary to proceed past step four. (AR at
11-14).
At the first step, the ALJ found that plaintiff had not engaged in substantial gainful
activity since August 18, 2006, her alleged onset date. (Id. at 9). At the second step, the ALJ
concluded that plaintiff had the following severe impairments: depression, serum negative
rheumatoid arthritis, migraine headaches, and fibromyalgia. (Id.). He noted that because these
impairments impose more than a minimal effect on her ability to perform basic work-related
tasks, they were severe. (Id.). While these impairments were severe, the ALJ found that they
did not meet the requirements of a Listed Impairment under 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Id. at 10).
The ALJ then proceeded to the fourth step. He considered plaintiff’s RFC and whether
1

“All five steps are not applied to every applicant, as the determination may be concluded at any step along
the process.” Seavey, 276 F.3d at 5.

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that would allow her to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). The
ALJ considered the entire record, the hearing testimony, and his observations of plaintiff at the
hearing. (AR at 11-14). The ALJ noted that he did not find plaintiff’s assertions of pain to be
completely credible, because they were not substantiated by the medical evidence and there was
a disconnect between her assertions and her daily activities and her demeanor during the
hearing. (Id. at 12).
While the ALJ did note that Dr. Sauls had opined that plaintiff qualifies for disability, he
also stated (correctly) that opinions concerning disability are reserved for the Commissioner.
(Id. at 13). The ALJ noted that he considered the RFC conducted by Dr. Weeratne, but stated
that he gave greater weight to Dr. Ramey’s RFC assessment because his findings were more
supportive of sedentary exertional work. (Id.).
After reviewing the evidence, the ALJ determined that plaintiff had the RFC to perform
sedentary work. (Id.). He concluded that she can (1) stand/walk for at least four hours in an
eight-hour workday; (2) sit for up to six hours in an eight-hour workday, in three-hour intervals;
(3) stand for up to 30 minutes at a time; (4) climb ramps and stairs, balance, stoop, crouch, and
kneel; and (5) push and pull with the upper and lower extremities. (Id. at 13). He also
concluded that she cannot crawl or climb ladders and should avoid concentrated exposure
to heights, temperature extremes, humidity, and vibration. (Id.).
The ALJ relied on the testimony of the vocational expert in comparing plaintiff’s residual
functional capacity to her past relevant work. (Id. at 14). Consistent with the vocational expert’s
opinion, the ALJ found that plaintiff retained the ability to complete her past work as a
customer-service representative and a receptionist. (Id.). Because plaintiff retained a residual

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functional capacity to perform her past relevant work, the ALJ found that she was not disabled
within the meaning of the Social Security Act. (Id. at 14-15).
D.

Plaintiff’s Objections

Plaintiff raises two objections before this Court. She contends that the ALJ erred (1) in
failing to address her migraine headaches in determining her RFC, and (2) in finding plaintiff not
credible because he required objective medical evidence for a subjective impairment. For the
following reasons, the decision of the ALJ will be reversed.
1.

Migraine Headaches

Plaintiff’s first contention is that the ALJ failed to consider the effects of her migraine
headaches when he calculated her RFC. While the ALJ found her migraines to be severe, he
failed to mention them in connection with her RFC at step four.
An ALJ’s findings must be sufficiently specific to explain how a conclusion was reached.
Larlee v. Astrue, 694 F. Supp. 2d 80, 84 (D. Mass. 2010) (“If the decision on its face does not
adequately explain how a conclusion was reached, that alone is grounds for a remand.” (quoting
Barbato v. Commissioner of Social Security Administration, 923 F. Supp. 1273, 1276 n.2 (C.D.
Cal. 1996) (internal quotations omitted))).; see also Resendes v. Astrue, 2011 WL 669090, at *16
(D. Mass. Feb. 17, 2011). In Resendes, the court found that a mere implication that a plaintiff’s
headaches imposed no limitations was not sufficiently clear. See Resendes, 2011 WL 669090, at
*16.
The fact that the ALJ did not discuss plaintiff’s headaches is more troublesome in light of
the fact that he found them to be a severe impairment. The hearing decision allows for three
different possibilities as to how the ALJ handled her migraine headaches. First, the ALJ could

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have ignored her headaches when determining her RFC. Second—and as the Commissioner
contends—the ALJ could have found that her headaches do not impose any limitations on her
ability to work, and therefore did not include them. Third, the ALJ may have believed that her
headaches were adequately incorporated into his RFC because he relied heavily on Dr. Ramey’s
RFC and Dr. Ramey was aware of plaintiff’s headaches. While the second and third options
would render the ALJ’s RFC calculation valid, the fact that he did not include even a simple
statement to that effect is problematic.2
The ALJ did not discuss plaintiff’s headaches at all in step four of his analysis within the
hearing decision, and therefore it is unclear whether the ALJ actually considered them in
determining her RFC. Because, however, they were found to be a severe impairment, they
should have been specifically addressed. The decision will therefore be reversed, and the matter
will be remanded for further proceedings.
2.

Credibility Determination

Plaintiff makes two arguments regarding the ALJ’s credibility determination. First, she
contends that in making his credibility determination concerning her claims of pain and
symptomology, the ALJ failed to discuss the Avery factors. Second, she contends that the ALJ
relied solely on objective medical evidence when he concluded that her assertions of pain were
not credible.

2

Plaintiff further contends that because her headaches were not accounted for in the RFC, the vocational
expert’s testimony is invalid. (Pl. Br. 18-19). The hypothetical proposed to the vocational expert may be invalid if
the ALJ merely excluded her headaches entirely from his RFC calculation. However, if he believed her headaches
imposed no limitations or were adequately accounted for in the RFC provided by Dr. Ramey, the vocational expert’s
testimony would remain valid.

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It is undisputed that the limitations imposed by fibromyalgia are based on fundamentally
subjective criteria, and therefore a credibility determination is necessary. However, while a
person with fibromyalgia may have a case that is so severe as to render them “totally disabled
from working . . . most do not and the question is whether [plaintiff] is one of the minority.”
Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) (internal citations omitted); see also Lopes v.
Barnhart, 372 F. Supp. 2d 185, 189 n.6 (D. Mass. 2005). Thus, a diagnosis of fibromyalgia
itself does not automatically mean that a claimant is disabled. Tsarelka v. Sec’y of Health &
Human Servs., 842 F.2d 529, 534 (1st Cir. 1988) (“The mere presence of a fibrositis condition
does not entitle [one] to disability benefits.”)
a.

Avery Factors

When making a credibility determination, the ALJ is required to consider the following
six factors: (1) the nature, location, onset, duration, frequency, radiation, and intensity of any
pain; (2) precipitating and aggravating factors; (3) type, dosage, effectiveness, and adverse side
effects of any pain medication; (4) treatment, other than medication, for relief of pain; (5)
functional restrictions; and (6) the claimant’s daily activities. Avery v. Sec’y of Health & Human
Servs., 797 F.2d 19, 23 (1st Cir. 1986); see Frustaglia v. Sec’y of Health & Human Servs., 829
F.2d 192, 195 (1st Cir. 1987) (“[t]he ALJ thoroughly questioned the claimant regarding his daily
activities, functional restrictions, medication, prior work record, and frequency and duration of
the pain, . . . in conformity with the guidelines set out in Avery regarding the evaluation of
subjective symptoms”). Because the credibility determination is for the ALJ to make, as long as
his determination is supported by substantial evidence, this Court must accept his conclusions.
Ramirez v. Sec’y of Health & Human Servs., 550 F.2d 1286, 1286 (1st Cir. 1977); Musto v.

11

Halter, 135 F. Supp. 2d 220, 226-27 (D. Mass 2001). Here, there is substantial evidence that the
ALJ considered each of the Avery factors.
The ALJ’s decision directly lays out the Avery factors. (AR at 12). While a more
thorough and detailed discussion of the evidence applicable to each of these factors would have
been preferable, reversal on that basis is not required. Most significantly, there is substantial
evidence in the record as to each of the Avery factors, and indeed plaintiff testified as to each
factor.
First, testimony at the hearing addressed the nature, onset, duration, and frequency of
plaintiff’s pain. Plaintiff indicated that the longer she sits, the more pain she feels. (Id. at 28).
Moreover, plaintiff said that she feels pain every day but the extent of that pain and what she can
do varies each day. (Id. at 35, 126).
Second, the ALJ elicited testimony from plaintiff concerning her precipitating and
aggravating factors. Plaintiff testified that she had hip pain, lower-back pain, and leg pain after
sitting for extended periods of time. (Id. at 28). She further testified that her hands swell in the
heat and the humidity, which decreases her dexterity. (Id. at 35).
Third, there was substantial evidence concerning the medications plaintiff took and the
side effects of those medications. The ALJ specifically inquired as to what medications plaintiff
took. (Id. at 28-31). While the ALJ did not himself inquire about side effects of those
medications, plaintiff did testify during the hearing that her medications made her dizzy,
occasionally made her drowsy, and caused her to retain fluid. (Id. at 33-34).
Fourth, there was evidence concerning treatment other than medication. Plaintiff
testified that she sometimes used a cane to help her mobility and alleviate the pain in her left leg.

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(Id. at 34). However, as the ALJ noted, plaintiff was not relying on the cane during the hearing.
(Id. at 12). Moreover, there was medical evidence indicating that pool therapy may help
plaintiff’s stiff joints as well as gold salts therapy. (Id. at 170, 208). Plaintiff further testified
that she uses showers and baths, as well as movement, to help relieve pain. (Id. at 34).
Fifth, plaintiff testified at the hearing as to the functional restrictions factor. She stated
that she could normally sit for an hour and that she could stand for about a half an hour to an
hour. (Id. at 34). After exerting herself, she has to take breaks by lying down for an hour or two.
(Id. at 37). She also testified that she has difficulty climbing stairs. (Id. at 34, 352).
Sixth, as to the daily activities factor, plaintiff stated that she visits with friends who live
a short distance away. (Id. at 24, 32, 37). Plaintiff also reported that she drove two to three
times a week and would drive for a half an hour at most. (Id. at 24-25). Further, plaintiff stated
that she did her own food shopping, although her daughter did bring the food into the house. (Id.
at 25, 129). She also testified that her daughter helps her with chores, such as laundry,
vacuuming, and washing the floor. (Id. at 37).
This evidence, viewed in tandem with the ALJ’s summary of the Avery factors in the
hearing decision, supports the conclusion that the ALJ considered each of the Avery factors.
Reversal as to that issue is therefore not required.
b.

Reasons for Finding Plaintiff Not Credible

Plaintiff further contends that the ALJ did not indicate the reasons that he found her not
entirely credible, other than the fact that objective medical evidence did not corroborate her
subjective complaints of pain. (Pl. Br. 11). When determining a plaintiff’s credibility, the ALJ
“must make specific findings as to the relevant evidence considered in determining to disbelieve

13

the [claimant].” DaRosa v. Sec’y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir. 1986).
While the ALJ can use the absence of corroborating medical evidence as a factor in his
determination, it cannot be the only factor upon which he relies. SSR 96-7p, 1996 WL 374186,
at *6 (S.S.A. July 2, 1996); see also Makuch v. Halter, 170 F. Supp. 2d 117, 127 (D. Mass.
2001).
Here, however, the ALJ indicated that the objective medical evidence, as well as
plaintiff’s demeanor at the hearing and her daily activities, justified his finding that she was only
partially credible. This is supported by substantial evidence. While plaintiff stated that she
could only sit for an hour at a time, Dr. Ramey, upon whom the ALJ relied in calculating
plaintiff’s RFC, stated that she could sit without interruption for two hours. (AR 34, 351).
Moreover, plaintiff stated that she could only sit for a half hour at a time, whereas Dr. Ramey
stated that she could stand for less than two hours at a time, but could stand for two to four hours
with breaks. (Id. at 34, 351). The agency-appointed physician said that plaintiff could stand for
even longer – three hours. (Id. at 174). Substantial medical evidence therefore indicates that
plaintiff’s restrictions were self-imposed, as the ALJ indicated. (Id. at 12).
Evidence of plaintiff’s daily activities also support the ALJ’s finding that her assertions
of pain were not entirely credible. She testified that she leaves the house every couple of days to
socialize with her neighbors or to visit friends who live 15 minutes away. (Id. at 37). She
maintains the ability to drive and does so two or three times a week. (Id. at 24). Moreover, she
still does her own grocery shopping. (Id. at 25). In addition, she also admitted that she took care
of her dogs, handled her personal care, and did minimal housework. (Id. at 127-28). Although
she testified that her daughter typically helps her bring the groceries into the house, such

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statements do not preclude the ALJ from relying on her daily activities to find her not credible.
See Teixeira v. Astrue, 2010 WL 5158104, at *5 (D. Mass. Dec. 21, 2010) (“[t]hat Teixeira
claims to have had assistance from her older daughters in completing the household work and
that she often takes breaks does not prevent the hearing officer from using the testimony of
Teixeira’s daily activities as one factor in assessing credibility.”).
Finally, the ALJ relied on his observations of plaintiff in determining her credibility.
When assessing credibility, the ALJ is allowed to consider his own observations of a plaintiff.
SSR 96-7p, 1996 WL 374186, at *5 (“In instances where the individual attends an administrative
proceeding conducted by the adjudicator, the adjudicator may also consider his or her own
recorded observations of the individual as part of the overall evaluation of the credibility of the
individual's statements.”). The ALJ noted that he did not see plaintiff using a cane, nor did he
see her frequently wince in pain. (AR at 12). There was, therefore, substantial evidence to
support the ALJ’s credibility determination.
*

*

*

In summary, the ALJ’s treatment of the Avery factors, and his assessment of plaintiff’s
credibility, do not warrant reversal. However, his failure to address the issue of plaintiff’s
migraine headaches in determining her residual functional capacity does require reversal, and
accordingly plaintiff’s motion to reverse will be granted and defendant’s motion to affirm will be
denied.

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III.

Conclusion
For the foregoing reasons, plaintiff’s motion for an order to reverse the final decision of

the Commissioner of the Social Security Administration is GRANTED, and defendant’s motion
to affirm the action of the Commissioner is DENIED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: August 3, 2011

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