Vancil v. Berryhill

Filing 25

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief which Vancil seeks in her Complaint and Brief in Support of Plaintiffs Complaint is GRANTED in part and DENIED in part. [Docs. 1 , 18 .] IT IS FURTHER ORDERED that the ALJs decision of November 17, 2016 is REVERSED and REMANDED. 10 IT IS FURTHER ORDERED that the ALJ shall re-evaluate whether Vancils migraine headaches are a severe impairment at step two. IT IS FURTHER ORDERED that the ALJ shall order a consultative examination rega rding Vancils impairments, including specifically the abilities of handling and fingering, and produce a new residual functional capacity determination that addresses the limitations caused by all of Vancils impairments.. Signed by Magistrate Judge Nannette A. Baker on 9/30/19. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KELLY B. VANCIL,
Plaintiff,
v.
ANDREW M. SAUL1,
Commissioner of Social Security,
Defendant.

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Case No. 4:18-CV-55 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Kelly B. Vancil’s appeal regarding the denial
of disability insurance benefits under the Social Security Act. The Court has jurisdiction over the
subject matter of this action under 42 U.S.C. § 405(g). The parties have consented to the exercise
of authority by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 8.] The
Court has reviewed the parties’ briefs and the entire administrative record, including the transcript
and medical evidence.

Based on the following, the Court will reverse and remand the

Commissioner’s decision.
Issues for Review
Vancil presents two issues for review. First, she asserts that the administrative law judge
(“ALJ”) failed to find migraine headaches a severe impairment and did not properly evaluate the
effects of insomnia and migraine headaches when determining the residual functional capacity

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At the time this case was filed, Nancy A. Berryhill was the Acting Commissioner of Social Security. Andrew M.
Saul became the Commissioner of Social Security on June 4, 2019. When a public officer ceases to hold office while
an action is pending, the officer’s successor is automatically substituted as a party. Fed. R. Civ. P. 25(d). Later
proceedings should be in the substituted party’s name and the Court may order substitution at any time. Id. The Court
will order the Clerk of Court to substitute Andrew M. Saul for Nancy A. Berryhill in this matter.

(“RFC”). Second, Vancil asserts that the ALJ’s RFC determination failed to consider evidence
that indicated that she was limited to occasional handling and fingering and evidence regarding
the effects of fatigue on the RFC determination. The Commissioner asserts that the ALJ’s decision
is supported by substantial evidence in the record as a whole and should be affirmed.
Standard of Review
The Social Security Act defines disability as an “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 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).
The Social Security Administration (“SSA”) uses a five-step analysis to determine whether
a claimant seeking disability benefits is in fact disabled. 20 C.F.R. § 404.1520(a)(1). First, the
claimant must not be engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i).
Second, the claimant must establish that he or she has an impairment or combination of
impairments that significantly limits his or her ability to perform basic work activities and meets
the durational requirements of the Act. 20 C.F.R. § 404.1520(a)(4)(ii). Third, the claimant must
establish that his or her impairment meets or equals an impairment listed in the appendix of the
applicable regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant’s impairments do not meet
or equal a listed impairment, the SSA determines the claimant’s RFC to perform past relevant
work. 20 C.F.R. § 404.1520(e).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant meets this burden, the analysis
proceeds to step five. At step five, the burden shifts to the Commissioner to establish the claimant
maintains the RFC to perform a significant number of jobs in the national economy. Singh v.

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Apfel, 222 F.3d 448, 451 (8th Cir. 2000). If the claimant satisfied all of the criteria under the fivestep evaluation, the ALJ will find the claimant to be disabled. 20 C.F.R. § 404.1520(a)(4)(v).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). This Court reviews the decision of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is less
than a preponderance, but enough that a reasonable mind would find adequate support for the
ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The Court determines whether
evidence is substantial by considering evidence that detracts from the Commissioner’s decision as
well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006). The Court
may not reverse just because substantial evidence exists that would support a contrary outcome or
because the Court would have decided the case differently. Id. If, after reviewing the record as a
whole, the Court finds it possible to draw two inconsistent positions from the evidence and one of
those positions represents the Commissioner’s finding, the Commissioner’s decision must be
affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). The Court must affirm the
Commissioner’s decision so long as it conforms to the law and is supported by substantial evidence
on the record as a whole. Collins ex rel. Williams v. Barnhart, 335 F.3d 726, 729 (8th Cir. 2003).
Discussion
Severe Impairment
The first issue is whether substantial evidence supports the ALJ’s finding that Vancil’s
migraine headaches were not a severe impairment. After the ALJ has determined that a claimant
is not engaged in substantial gainful activity, the ALJ then determines whether the claimant has a
severe impairment or combination of impairments that has or is expected to last twelve months or

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will result in death. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(i)-(ii) 2. A physical or mental
impairment must be established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by the claimant’s statement of symptoms. 20 C.F.R. § 404.1508. To
be considered severe, an impairment must significantly limit a claimant’s ability to do basic work
activities. See 20 C.F.R § 404.1520(c). “Step two [of the five-step] evaluation states that a
claimant is not disabled if his impairments are not severe.” Kirby v. Astrue, 500 F.3d 705, 707
(8th Cir. 2007) (citing Simmons v. Massanari, 264 F.3d 751, 754 (8th Cir. 2001)). “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.” Id. at 707. “If the impairment
would have no more than a minimal effect on the claimant’s ability to work, then it does not satisfy
the requirement of step two.” Id. (citing Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)). “It
is the claimant’s burden to establish that his impairment or combination of impairments are
severe.” Kirby, 500 F.3d at 707 (citing Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000)).
“Severity is not an onerous requirement for the claimant to meet, . . . but it is also not a toothless
standard.” Kirby, 500 F.3d at 708.
The ALJ found that Vancil had the severe impairments of psoriatic arthritis, osteoarthritis,
degenerative disc disease, carpal tunnel syndrome, fibromyalgia, mood disorder not otherwise
specified, anxiety, and major depression. (Tr. 23.) The ALJ found that Vancil’s multiple sclerosis,
irritable bowel syndrome, nonalcoholic steatohepatitis, and headaches were non-severe. (Tr. 2324.) Regarding Vancil’s headaches, the ALJ stated, “the record reflects that the claimant has
headaches but the record is ambiguous as to their cause so the claimant’s headaches have been
considered as a combined result of the claimant’s severe impairments.” (Tr. 24.)

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Many Social Security regulations were amended effective March 27, 2017. Per 20 C.F.R. §§ 404.614, 404.1527,
the court will use the regulations in effect at the time that this claim was filed.

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Based on evidence in the record as a whole, the Court holds that the ALJ’s finding is not
supported by substantial evidence. The Court has been unable to locate any legal authority and
the parties have not presented any legal authority that the ALJ can reject a medically determinable
impairment as severe based solely on the fact that the cause of the impairment is ambiguous.
“Because migraines constitute a subjective complaint, objective evidence conclusively showing
whether a person suffers from them is impossible to find.” Carrier v. Berryhill, CIV-1-5086-JLV,
2017 WL 885019 at *5 (D.S.D. Mar. 6, 2017) (citing Carlson v. Astrue, Civil NO. 09-2547, 2010
WL 5113808 at *12 (D. Minn. Nov. 8, 2010)). “Rather than using laboratory tests looking for
direct medical evidence, doctors diagnose migraines through medical signs and symptoms such as
nausea, vomiting, and photophobia.” Carrier, at *5. An ALJ cannot “reject [a claimant’s]
statements about the intensity and persistence of [his or her] pain or other symptoms or about the
[effect] symptoms have on [the claimant’s] ability to work solely because the available objective
medical evidence does not substantiate [the claimant’s] statements.” 20 C.F.R. § 404.1529(c).
There is no dispute that Vancil actually suffers from migraine headaches, because her doctors have
diagnosed her with this condition and continue to prescribe medication for treatment. “An ALJ
may discount a claimant’s allegations if there is evidence that a claimant was a malingerer or was
exaggerating symptoms for financial gain.” Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009).
There is no evidence in the record that Vancil was accused by any provider of malingering or
exaggerating her symptoms.
Several cases in this district have found similar errors harmless stating, “Where an ALJ
errs by failing to find an impairment to be severe, such error is harmless if the ALJ finds the
claimant to suffer from another severe impairment, continues in the evaluation process, and

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considers the effects of the impairment at the other steps of the process.” DeGroot v. Berryhill,
1:17-CV-202 ACL, 2019 WL 1316964 at *7 (E.D. Mo. March 22, 2019) (affirm); see also Weed
v. Saul, 4:18-CV-1192 SPM, 2019 WL 4451259 at *4 (Sept. 17, 2019) (affirm); Coleman v. Astrue,
4:11-CV-2131 CDP, 2013 WL 665084 at *10 (Feb. 25, 2013) (reverse). The Commissioner
contends that the ALJ considered Vancil’s headaches, but the record did not support the limitations
she alleged were caused by her headaches. The ALJ discussed Vancil’s testimony about her
migraines and the treatment for the migraine headaches in the record. (Tr. 27-29.) It is unclear
from the ALJ’s opinion that he considered any effects of her headaches in the RFC. Because of
the ALJ’s confusing language in step two and no indication that the effects of the headaches were
included in the RFC determination, the Court does not find that substantial evidence supports the
ALJ’s finding that the migraine headaches were not a severe impairment. The Court will reverse
and remand this action for the ALJ to properly evaluate whether Vancil’s headaches meet the
requirement for a severe impairment at step two.
RFC Determination
Next, Vancil contends that the ALJ’s RFC finding that she could frequently handle or
finger is not supported by substantial evidence, because she can at most occasionally handle or
finger. The vocational expert testified that a person who is limited to occasional handling and
fingering could not perform the jobs of housekeeper/maid, mail clerk, and injection molder that
were listed at step five of the sequential evaluation. These jobs require fingering and handling
from 1/3 to 2/3 of the time working 3. The Commissioner asserts that Vancil is requesting the Court
to re-weigh the evidence, which is not appropriate on administrative review by the Court.

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See Dictionary of Occupational Titles (“DICOT”) 209.687-026 Mail Clerk, 1991 WL 671813(Fourth Edition,
Revised 1991), DICOT 323.687-014 Cleaner, Housekeeping, 1991 WL 672783 (Fourth Edition, Revised 1991);
DICOT 556.685-038, 1991 WL 683482 (Fourth Edition, Revised 1991).

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The RFC is defined as what the claimant can do despite his or her limitations, and includes
an assessment of physical abilities and mental impairments. 20 C.F.R. § 404.1545(a). The RFC
is a function-by-function assessment of an individual’s ability to do work related activities on a
regular and continuing basis. 4 SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). It is the ALJ’s
responsibility to determine the claimant’s RFC based on all relevant evidence, including medical
records, observations of treating physicians and the claimant’s own descriptions of his limitations.
Pearsall, 274 F.3d at 1217. An RFC determination made by an ALJ will be upheld if it is supported
by substantial evidence in the record. See Cox, 471 F.3d at 907.
The ALJ determined that Vancil had the RFC to perform light work with the following
restrictions: (1) never climb ladders, ropes, or scaffolds; (2) occasionally climb ramps or stairs,
stoop, kneel, crouch, or crawl; (3) frequently reach, handle, or finger; (4) avoid hazards such as
dangerous machinery and unprotected heights; and (5) perform simple and routine tasks
throughout the workday in a non-public work setting where the individual will not be around
members of the general public or required to communicate with them on behalf of the employer.
(Tr. 26.)
Based on a review of the record as a whole, the Court finds that the ALJ’s finding regarding
handling and fingering is not supported by substantial evidence. Although the ALJ made few
comments in the opinion specifically regarding Vancil’s use of her hands, the Commissioner cites
to the stability of Vancil’s arthritis treatment at times and her activities of daily living including
her 2 hours per day job to support the ALJ’s RFC determination.
It is possible for a person’s health to improve, and for the person to remain too disabled to
work.” Cox v. Barnhart, 345 F.3d 606, 609 (8th Cir. 2003). “[D]oing well for the purposes of a

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A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR
96-8p, 1996 WL 374184, at *1.

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treatment program has no necessary relation to a claimant’s ability to work or to her work-related
functional capacity.” Hutshell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001). See e.g., Gude v.
Sullivan, 956 F.2d 791, 794 (8th Cir. 1992) (claimant doing well for someone with systemic lupus
erythematosus and it does not contradict doctor’s opinion on her inability to work); Fleshman v.
Sullivan, 933 F.2d 674, 676 (8th Cir. 1991) (A person who has undergone a kidney transplant may
indeed “feel better” than she did when she was undergoing dialysis, but that does not compel the
conclusion that she was therefore able to work).
To determine whether a claimant has the residual functional capacity necessary to be able
to work the Court looks to whether he has “the ability to perform the requisite physical acts day in
and day out, in the sometimes competitive and stressful conditions in which real people work in
the real world.” Forehand v. Barnhart, 364 F.3d 984, 988 (8th Cir. 2004) (citing McCoy v.
Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc)). Working for two hours per day
whenever she wanted within a twenty-four hour period is not comparable to working a full time
job eight hours a day for five days a week. None of the instances cited by the Commissioner’s
brief indicate Vancil’s ability to work at a job, specifically one requiring frequent handling and
fingering, day in and day out. “The presumption that a claimant is not disabled merely because
the claimant had a lenient employer, a high tolerance for pain, or no other means of support would
unfairly shift the burden of proof back onto the claimant at a point in the proceedings when the
burden rightfully belongs on the Commissioner.” Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.
1998).
Moreover, as the ALJ noted in his opinion, Vancil has a long work history with excellent
earnings, which supports her contention that except for her impairments, she would be working.

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This evidence viewed in conjunction with the other evidence in the record as a whole demonstrates
that the ALJ’s RFC finding is not supported by substantial evidence.
Because there is limited evidence in the record regarding Vancil’s ability to finger and
handle at a regular job day in and day out, the Court will reverse and remand for the ALJ to obtain
additional evidence, including a consultative examination. Then, the ALJ should prepare a new
RFC determination considering all of the limitations caused by Vancil’s impairments.
CONCLUSION
The Court finds that the Commissioner’s decision is not supported by substantial evidence
on the record as a whole. The Court is aware that upon remand, the ALJ’s decision as to nondisability may not change after addressing the deficiencies noted herein, but the determination is
one the Commissioner must make in the first instance. See Buckner v. Apfel, 213 F.3d 1006, 1011
(8th Cir. 2000) (when a claimant appeals from the Commissioner’s denial of benefits and the denial
is improper, out of an abundant deference to the ALJ, the Court remands the case for further
administrative proceedings); Leeper v. Colvin, No. 4:13-CV-367 ACL, 2014 WL 4713280 at *11
(E.D. Mo. Sept. 22, 2014) (ALJ duty to make disability determination). Because Vancil first
applied for benefits for this claim in 2014, and it is now 2019, the Commissioner is urged to begin
proceedings without delay and resolve this case as soon as possible.
Accordingly,
IT IS HEREBY ORDERED that the relief which Vancil seeks in her Complaint and Brief
in Support of Plaintiff’s Complaint is GRANTED in part and DENIED in part. [Docs. 1, 18.]
IT IS FURTHER ORDERED that the ALJ’s decision of November 17, 2016 is
REVERSED and REMANDED.

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IT IS FURTHER ORDERED that the ALJ shall re-evaluate whether Vancil’s migraine
headaches are a severe impairment at step two.
IT IS FURTHER ORDERED that the ALJ shall order a consultative examination
regarding Vancil’s impairments, including specifically the abilities of handling and fingering, and
produce a new residual functional capacity determination that addresses the limitations caused by
all of Vancil’s impairments.

NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
Dated this 30th day of September, 2019.

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