GALLOWAY v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMEDNATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/22/2015; that the Commissioner's decision finding no disability be vacated, that Defendant's Motion for Judgment on the Ple adings (Docket Entry 12 ) be denied, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be granted in part and denied in part, in that the Court should vacate the denial of benefits and should remand the case for admin istrative reassessment of the medical record and the credibility of Plaintiff's symptom reporting regarding her PTC. In particular, the Court should require: 1) resolution of the conflict between the ALJ's step two finding that, as of M arch 29, 2013, Plaintiff suffered from headaches due to PTC and the ALJ's RFC-stage finding that Plaintiff's PTC resolved as of December 2012; 2) a determination of whether, even if Plaintiff's PTC resolved by December 2012, she none theless qualified for a closed period of benefits during the time between her alleged onset date of June 14, 2011, and December 2012; 3) reconsideration (based on a proper review of the record) of whether Plaintiff's PTC actually resolved by December 2012; and 4) reassessment (based on a proper review of the record) of the credibility of Plaintiff's symptom reporting regarding her PTC. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOANDREA L. GALLOWAY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner
of Social Security,
Defendant.
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1:14CV362
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff brought this action under the Social Security Act
(the “Act”) to obtain judicial review of a final decision of
Defendant denying Plaintiff’s claim(s) for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)
The Court has before it the certified administrative
record (Docket Entry 9 (cited as “Tr. __”)), as well as the
parties’ cross-motions for judgment (Docket Entries 10, 12).
For
the reasons that follow, the Court should remand this case for
further administrative proceedings.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging a disability onset
date of February 12, 2011.
(Tr. 190-200.)
Upon denial initially
(Tr. 89-120) and on reconsideration (Tr. 121-56), she requested a
hearing de novo before an Administrative Law Judge (“ALJ”) (Tr.
10).
Plaintiff, her then-attorney, and a vocational expert (“VE”)
attended the hearing (on February 6, 2013), at which Plaintiff
amended her alleged onset date to June 14, 2011.
(Tr. 53-88.)
On
March 29, 2013, the ALJ ruled Plaintiff not disabled under the Act.
(Tr. 15-26.)
The Appeals Council subsequently denied Plaintiff’s
request for review, making the ALJ’s ruling the Commissioner’s
final decision for purposes of judicial review.
(Tr. 1-4.)
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1. [Plaintiff] meets the insured status requirements of
the [] Act through December 31, 2016.
2. [Plaintiff] has not engaged in substantial gainful
activity since . . . the amended alleged onset date.
3.
[Plaintiff] has the following severe impairments:
intercranial [sic] hypertension; headaches secondary to
pseudotumor cerebri; chronic pain syndrome/pain disorder;
occipital neuralgia; post motor vehicle accident with
spleen laceration and rib fractures; tendonitis of the
left foot; dysthmyic disorder; anxiety; identity
problems/disorder; borderline intellectual functioning;
and obesity.
. . . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1.
. . . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) with lifting up to 20 pounds
occasionally and lifting or carrying up to 10 pounds
frequently; standing or walking for approximately 4 hours
per 8 hour workday and sitting for approximately 4 to 6
hours per 8 hour workday with normal breaks; pushing/
pulling with bilateral upper extremities frequently;
2
operating foot controls with the lower extremities
frequently on the right and occasionally on the left,
never climb ladders, ropes or scaffolds; climb ramps and
stairs up to 1/2 workday, or four hours out of an 8-hour
workday; frequently balance, occasionally stoop, kneel
and crawl; never crouch; avoid concentrated noise and
hazards . . .; limited to occupations which do not
involve exposure to direct sunlight (does not include the
normal exposure incurred traveling to and from work);
limited to occupations that which do not require complex
written or verbal communication or frequent telephone
communication; fast paced production requirements and
involving only simple, work-related decision and few if
any work place changes that are introduced gradually;
only occasional interaction with the public; and can be
around co-workers throughout the day but with only
occasional interaction with co-workers.
. . . .
6. [Plaintiff] is unable to perform any past relevant
work.
. . . .
10.
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from [the amended alleged onset
date] through the date of this decision.
(Tr. 15-26 (internal parenthetical citations omitted) (emphasis
added).)
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
3
Hines v.
However, “the scope
of [such] review . . . is extremely limited.”
F.2d 143, 144 (4th Cir. 1981).
de novo.”
Frady v. Harris, 646
“[C]ourts are not to try the case
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead, “a reviewing court must uphold the factual findings
of the ALJ if they are supported by substantial evidence and were
reached through application of the correct legal standard.” Hines,
453 F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Hunter v.
Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v.
Perales, 402 U.S. 389, 390 (1971)).
mere
scintilla
of
evidence
but
“It consists of more than a
may
be
somewhat
less
than
a
preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)
(internal brackets and quotation marks omitted).
“If there is
evidence to justify a refusal to direct a verdict were the case
before a jury, then there is substantial evidence.”
Hunter, 993
F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
4
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must note that “[a]
claimant for disability benefits bears the burden of proving a
disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981), and
that, in this context, “disability” means 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,’” id. (quoting 42
U.S.C. § 423(d)(1)(A)).1
“To regularize the adjudicative process,
the Social Security Administration has . . . promulgated . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical condition.”
Hall, 658 F.2d at 264.
“These regulations
1
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. [SSI] . . . provides benefits to indigent disabled persons. The
statutory definitions and the regulations . . . for determining disability
governing these two programs are, in all aspects relevant here, substantively
identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
5
establish a ‘sequential evaluation process’ to determine whether a
claimant is disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citation omitted).
6
the ALJ must assess the claimant’s residual function capacity
(‘RFC’).”
Id. at 179.
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled.
179-80.3
Id. at
However, if the claimant establishes an inability to
return to his or her prior employment, the analysis proceeds to the
fifth step, whereupon the ALJ must decide “whether the claimant is
able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and
past work experience) to adjust to a new job.”
264-65.
Hall, 658 F.2d at
If, at this step, the Commissioner cannot carry the
“evidentiary burden of proving that [the claimant] remains able to
work other jobs available in the community,” the claimant qualifies
as disabled.
Hines, 453 F.3d at 567.4
3
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
4
A claimant thus can establish disability via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
7
Assignment(s) of Error
Plaintiff contends the Court should overturn the ALJ’s finding
of no disability because, in formulating Plaintiff’s RFC, the ALJ
“improperly
evaluated
Plaintiff’s
credibility
and
the
medical
record regarding the severity and effects of her pseudotumor
cerebri (‘PTC’).”
VE
testimony
(Docket Entry 11 at 1; see also id. at 5 (citing
showing
that,
if
deemed
credible,
Plaintiff’s
description of the severity of her headaches would preclude her
from
obtaining
competitive
employment).)5
Defendant
otherwise and seeks affirmance of the ALJ’s ruling.
argues
(Docket Entry
13 at 1-3, 6-13.) Plaintiff has shown several errors pertaining to
the ALJ’s handling of issues related to Plaintiff’s PTC that
require remand for further administrative proceedings.
Conflict between Step Two and RFC Findings about PTC
As noted above, the ALJ found (at step two) that Plaintiff
“has the following severe impairment[]:
to [PTC] . . . .”
. . . headaches secondary
(Tr. 17 (emphasis added).)
To support that
finding, the ALJ stated that “[t]reatment notes from [Plaintiff’s]
5
PTC “is a disorder of elevated spinal fluid pressure in the brain. It
causes headaches, possible blurred vision and, without treatment, can lead to
blindness.” Allen v. Colvin, C.A. No. 13-781L, 2015 WL 906000, at *1 n.1 (D.R.I.
Mar. 3, 2015) (unpublished); see also Holmes v. Colvin, Civil Action No. 1:133430-BHH, 2014 WL 6773359, at *2 n.2 (D.S.C. Dec. 2, 2014) (unpublished)
(describing PTC as “buildup of cerebrospinal fluid that causes increased
intracranial pressure [with] symptoms, which include headache, nausea, vomiting,
and pulsating sounds within the head, [] similar to those of large brain
tumors”). Plaintiff also has identified a second issue of “[w]hether the ALJ
improperly evaluated the medical opinion evidence” (Docket Entry 11 at 1), but
Plaintiff’s argument on that point simply restates aspects of her above-quoted,
primary argument concerning the ALJ’s evaluation of Plaintiff’s PTC (compare id.
at 5-10, with id. at 10-11). Accordingly, this Memorandum Opinion will not
separately address Plaintiff’s second issue.
8
physicians and the reports of a consultative physician . . .
confirm that [Plaintiff] has . . . headaches secondary to [PTC]
. . . .”
(Id. (emphasis added).)
Moreover, in formulating
Plaintiff’s RFC, the ALJ recognized that, consistent with the
foregoing step two finding (and medical records supporting it), at
the hearing on February 6, 2013, Plaintiff “testified that she has
a headache disorder. . . .
to pressure build-up.”
(“Q
[Plaintiff],
you
She has been told the headaches are due
(Tr. 19 (emphasis added); see also Tr. 58
became
disabled
headache disorder, is that correct?
A
primarily
Right.
Q
due
to
Okay.
your
And do
you have a headache everyday or occasionally at this point?
A
No.
It’s an everyday thing.” (emphasis added)).)
However, the ALJ’s RFC findings described PTC not as an
ongoing cause of Plaintiff’s headaches (as the step two ruling
indicated), but only as a former condition.
(Tr. 21 (“The medical
evidence confirms that [Plaintiff] has intracranial hypertension,
a history of [PTC], and a history of occipital neuralgia, and those
conditions have resulted in [her] having frequent headaches.”
(emphasis
added)).)
In
that
regard,
after
documenting
that
Plaintiff “ha[d] undergone multiple lumbar punctures . . . [and]
had a shunt implanted with a subsequent shunt revision surgery”
(id.),6 the ALJ asserted that records from December 2012 from the
6
In this context, “‘shunts’ . . . are designed to drain fluid away from
[the] brain.” Wood v. Medtronic Xomed Inc., No. 13CV90LM, 2015 WL 2342799, at
*1 (D.N.H. May 14, 2015) (unpublished); see also Patterson v. Bayer Healthcare
(continued...)
9
“neurosurgeon who performed the implantation of the shunt, the
shunt revision and the lumbar punctures . . . question[ed] whether
[Plaintiff’s] headaches were from [PTC,] . . . not[ed] that [her]
spinal tap pressure was normal and [] stated that [PTC] had likely
resolved”
(id.;
see
also
id.
(declaring
that
Plaintiff’s
neurosurgeon “ultimately concluded that [Plaintiff’s] headaches
were not coming from [PTC], as [it] had likely resolved”)).
If (on March 29, 2013) Plaintiff’s “headaches were not coming
from [PTC because, as of December 2012, her PTC] had likely
resolved” (as the ALJ determined for purposes of Plaintiff’s RFC)
(id.), the ALJ’s simultaneous finding (on March 29, 2013) that (for
purposes of step two) Plaintiff “has” a “severe impairment[]” of
“headaches secondary to [PTC]” (Tr. 17) makes no sense. See, e.g.,
Grady v. Commissioner of Soc. Sec., No. 12CV13349, 2013 WL 4670365,
at *11 (E.D. Mich. Aug. 30, 2013) (unpublished) (“[The] [p]laintiff
claims that the ALJ erred by not listing her plantar fasciitis and
heel spurs as severe impairments. . . .
[T]he medical evidence
showed that [the] [p]laintiff’s condition resolved with surgery.
The [c]ourt therefore concludes that the ALJ did not err by not
including plantar fasciitis and heel spurs as severe impairments
6
(...continued)
Pharm., Inc., No. 1:14CV1087-LJO-JLT, 2015 WL 778997, at *2 (E.D. Cal. Feb. 24,
2015) (unpublished) (describing surgical implanting of shunts as therapy employed
for “severe cases” of PTC). “A lumbar puncture involves placing a needle in the
subarachnoid space of the spinal column to measure pressure and to obtain
cerebrospinal fluid for laboratory examination.” Carrington v. Secretary of
Dep’t of Health & Human Servs., No. 99-495V, 2007 WL 1753513, at *2 n.9 (F. Cl.
May 29, 2007) (unpublished); see also Long v. Apfel, 1 F. App’x 326, 328 (6th
Cir. 2001) (discussing use of “lumbar punctures to alleviate pressure from excess
spinal fluid associated with [PTC]”).
10
. . . .”).
In sum, the conflict between the ALJ’s assessment of
Plaintiff’s PTC at step two and at the RFC-formulation stage
requires a remand. See, e.g., Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000) (“[The ALJ] must build an accurate and logical
bridge from the evidence to his [or her] conclusion.”).
Further, if on remand the ALJ revises the step two findings to
match the present RFC findings (i.e., to reflect that Plaintiff
only suffered from headaches attributable to PTC until December
2012) and if substantial evidence supports that conclusion, “what
is missing from the ALJ’s discussion [at present] is whether th[at]
impairment[] . . . render[ed] [Plaintiff] disabled for any time
period prior to [December 2012].”
Decker v. Colvin, No. 13C1732,
2014 WL 6612886, at *11 (N.D. Ill. Nov. 18, 2014) (unpublished).
In other words, if Plaintiff’s PTC-based headaches resolved in
December 2012, she still may have qualified for a period of
disability benefits if that impairment prevented her from working
for at least a one-year period before December 2012 and after her
amended alleged onset date of June 14, 2011.
264
(quoting
42
U.S.C.
§
423(d)(1)(A)
See Hall, 658 F.2d at
for
proposition
that
“disability” means “‘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’”).
“As a result, [the Court also should]
11
remand for the ALJ to determine whether [Plaintiff] was disabled at
any time after her alleged onset date and prior to [any resolution
of her PTC in December 2012], and to properly explain the basis for
the conclusion that he reaches.”
Decker, 2014 WL 6612886, at *12.
Lack of Substantial Evidence for Determination that
Plaintiff Suffered No PTC-Caused Headaches after December 2012
In addition to pointing out the inconsistency between the
ALJ’s findings concerning PTC at step two and in connection with
Plaintiff’s RFC (see Docket Entry 11 at 9), Plaintiff maintains
that the record evidence, if properly considered, should have led
the ALJ to recognize that Plaintiff’s “PTC did not resolve [in
December 2012] and her headaches continued because of [PTC]” (id.).
Grounds for remand exist on that front as well.
As a basis for deciding that, from December 2012, Plaintiff’s
PTC did not cause headaches, the ALJ gave this justification:
[Plaintiff’s neurosurgeon] noted in December 2012 that it
was questionable whether [Plaintiff’s] headaches were
from [PTC] vs. the lumbar puncture [she underwent on
November 27, 2012]. He also noted that [her] spinal tap
pressure was normal and he stated that [her PTC] had
likely resolved. He discharged [her] from his care and
he advised [her] to continue treatment with her
neurologist for her headaches.
(Tr. 21 (internal citation omitted) (citing Tr. 550).)
The first
of those characterizations of the record does not support a finding
that Plaintiff’s PTC ceased producing headaches by December 2012
because, as she correctly has observed, in the cited medical
record, her neurosurgeon “did not state that he was unsure if [her]
12
chronic headaches were due to lumbar puncture as opposed to PTC.
. . .
Rather, he was unsure if the [then-]current exacerbation of
her head pain was due to the recent lumbar puncture procedure as
opposed to her usual PTC head pain.”
(Docket Entry 11 at 9
(emphasis added); see also Tr. 550 (“[Plaintiff] had undergone a
lumbar puncture on 11/27/12 and reported to the ER with increased
headaches.
Questionable whether this is related to the [PTC] vs
lumbar puncture.” (emphasis added)).)
Moreover,
contrary
to
the
ALJ’s
above-quoted
statement,
Plaintiff’s neurosurgeon did not report that Plaintiff’s PTC “had
likely resolved” (Tr. 21); instead, her neurosurgeon offered an (at
least) arguably, more qualified statement:
“Most likely that her
[PTC] had resolved.” (Tr. 550 (emphasis added).) Specifically, by
using
the
adverb
“most”
to
modify
“likely,”
Plaintiff’s
neurosurgeon appeared to indicate that, at the moment of his
writing, three or more “likely” scenarios existed in regards to
Plaintiff’s PTC and that resolution of the condition represented
the leading possibility from that group.
See Webster’s New World
Dictionary 928 (2d college ed. 1980) (defining adverb form of
“most” as “in or to the greatest degree” and noting that it often
pairs with adjectives “to form the superlative degree”); A Writer’s
Reference 113 (2d ed. 1992) (noting that “[m]ost adjectives and
adverbs have three forms:
superlative,”
directing
the positive, the comparative, and the
writers
13
to
“[u]se
the
comparative
to
compare two things, the superlative to compare three or more,” and
citing as an example:
“Hobbs is the most [not more] qualified of
the three candidates”).
Given that the word “likely” itself
conveys a lack of certainty, see Webster’s New World Dictionary at
819 (defining “likely” as “apparently true to the facts; credible;
probable); see also id. at 1132 (defining “probable” as “that can
reasonably
but
declaration
by
not
certainly
Plaintiff’s
be
expected”),
neurosurgeon
the
about
above-quoted
the
status
of
Plaintiff’s PTC fails to provide an adequate foundation for a
finding that, after December 2012, Plaintiff did not experience
headaches attributable to PTC.
Nor do the normal pressure reading on November 27, 2012, and/
or Plaintiff’s discharge to her neurologist in December 2012 (the
other sources of record support cited by the ALJ on point) warrant
a determination that, after December 2012, PTC no longer caused
Plaintiff headaches.
Often with PTC, “it may take years before
normal pressure is maintained . . . [and] PTC[] may also recur
throughout a patient’s lifetime.”
Patterson v. Bayer Healthcare
Pharm., Inc., No. 1:14CV1087-LJO-JLT, 2015 WL 778997, at *2 (E.D.
Cal. Feb. 24, 2015) (unpublished) (emphasis added).
Accordingly,
a single normal pressure reading cannot establish that Plaintiff
had achieved any lasting resolution of her PTC as of December 2012,
particularly given that, in January 2013, her neurologist deemed
PTC
present
and
not
controlled
14
(see
Tr.
577
(stating
that
Plaintiff’s
PTC
“has
failed
medical
management”)).
Indeed,
according to Plaintiff’s neurologist, by January 2013, Plaintiff’s
neurosurgeon may have changed the opinion he expressed in December
2012 about the possible resolution of Plaintiff’s PTC.
(“[Plaintiff] continues to have headaches.
(See id.
She went back to [her
neurosurgeon] and he discussed with her doing an LP shunt.”); see
also Tr. 20 (“[According to Plaintiff,] [h]er neurosurgeon has said
that the shunt is not working correctly because it clogs.
had a revision, but the shunt closed all the way.
She has
Her only option
now is to get a new shunt through her stomach - they cannot revise
the shunt she has now again.”).)
Under these circumstances, the Court should remand for the ALJ
to re-visit Plaintiff’s RFC because substantial evidence fails to
support the ALJ’s material, underlying finding that, after December
2012, Plaintiff did not suffer headaches due to PTC.
Moreover, to
the extent the ALJ discredited Plaintiff’s testimony about her
headache symptoms based on a determination that, as of December
2012, PTC did not cause any headaches (see Tr. 21), the Court also
should require the ALJ to reconsider that subject.
Other Errors in the Evaluation of Plaintiff’s Symptom Reporting
As a final matter, Plaintiff complains that, in the context of
formulating her RFC, the ALJ also “avoided a finding of disability
in this case by finding that [Plaintiff] was not credible regarding
the severity and frequency of her headaches [but] . . . [t]he
15
reasons relied upon by the ALJ are not supported by the evidence
. . . .”
(Docket Entry 11 at 5 (citing Tr. 21-23); see also Tr.
19-20 (recounting Plaintiff’s testimony, in relevant part, as
follows:
“She has headaches every day and the pain is an 8 on a
pain scale of 1 to 10 with 10 being the worst pain.
blurred vision and sometimes has nausea and vomiting.
shake due to the headaches.
She has
Her hands
She has urinary incontinence.
She has
been told the headaches are due to pressure build-up. . . .
[S]pinal tap[s] released the pressure for a couple of days and then
the pain returned. . . .
She does not drive because she never
knows when she will get a terrible headache.
worse and affect her vision.
vision every day.
Some headaches are
She has headaches that affect her
Her vision is affected in some way 9 out of 10
times that she has a headache. . . .
[A]fter riding 15 minutes [in
a car] her headache increases, and this keeps her from leaving home
much.”).)
On this point, the record again confirms that the ALJ
made errors that require a remand.
The Social Security Administration’s Policy Interpretation
Ruling Titles II and XVI:
Claims:
Evaluation of Symptoms in Disability
Assessing the Credibility of an Individual’s Statements,
SSR 96–7p, 1996 WL 374186, at *2, as applied by the Fourth Circuit
in
Craig,
76
F.3d
at
594–95,
provides
a
two-part
test
for
evaluating a claimant’s statements about symptoms, including pain.
“First, there must be objective medical evidence showing ‘the
16
existence of a medical impairment(s) which results from anatomical,
physiological,
or psychological
abnormalities
and
which
could
reasonably be expected to produce the pain or other symptoms
alleged.’”
Id. at 594 (quoting 20 C.F.R. § 404.1529(b)).
Upon
satisfaction of part one, the analysis proceeds to part two, which
requires an assessment of the intensity and persistence of the
symptoms, as well as the extent to which they affect the claimant’s
ability to work.
Id. at 595.
At that point, the fact finder:
must take into account not only the claimant’s statements
about her pain, but also all the available evidence,
including the claimant’s medical history, medical signs,
and laboratory findings, any objective medical evidence
of pain (such as evidence of reduced joint motion, muscle
spasms, deteriorating tissues, redness, etc.), and any
other evidence relevant to the severity of the
impairment, such as evidence of the claimant’s daily
activities, specific descriptions of the pain, and any
medical treatment taken to alleviate it.
Id. (internal citations and quotation marks omitted).
In this case, the ALJ ruled as to part one that Plaintiff’s
impairments reasonably could have produced the alleged symptoms.
(Tr. 21.)
Regarding part two, however, the ALJ deemed Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms [] not entirely credible . . . .”
To
discredit
(at
least
in
part)
Plaintiff’s
account
(Id.)
of
her
headache-related symptoms (in addition to the above-discussed,
flawed
determination
that
PTC
did
not
cause
headaches
December 2012), the ALJ identified the following support:
17
after
1) “[Plaintiff] told her primary care physician, Dr. Mark
Dood, that, at their maximum, the severity of her headaches was
‘moderate’ – she did not say they were ‘severe’” (Tr. 21);
2) “[Plaintiff] underwent [an] initial shunt implantation on
June 27, 2011 and on August 29, 2011, she complained of only a
‘slight’ headache that was worse with lying down” (id.);
3) “treatment notes [from Plaintiff’s neurologist] also show
that [Plaintiff] was primarily having severe headaches in the
morning when she first got up and they got better as the day went
on” (id. (citing Tr. 533));
4)
“[Plaintiff]
may
be
exaggerating
to
some
extent
the
severity of her headaches, as she testified at the hearing that she
has urinary
mentioned
incontinence
urinary
due
to
incontinence
the
to
headaches
any
of
her
but
has
doctors”
never
(id.
(emphasis added));
5) “a consultative psychological report . . . shows that
[Plaintiff] complained of physical pain, nonstop on a daily basis,
but, in contrast, she easily completed the two-hour assessment
without registering any verbal or physical symptoms suggesting
discomfort” (id. (citing Tr. 446));
6) “that [consultative] report also indicates that [Plaintiff]
has a very long history of headaches, dating back to between the
ages of 10 and 14, . . . [but] she was able to work for many years
in skilled positions despite her headaches” (id.);
18
7) Plaintiff “frequently complained of blurred vision, but
treatment notes from her ophthalmologist show her visual acuity is
20/40 in each eye . . . [and the above-referenced consultative
report] made no mention of any vision problems during the testing
portion of the evaluation” (id. at 21-22 (citing Tr. 441-47, 509));
8)
“treatment
notes
from
[Plaintiff’s]
doctors
show
her
headaches are no more than ‘moderate’ and occur primarily in the
mornings” (id. at 22); and
9) “[Plaintiff] is able to perform her activities of daily
living
.
.
.
[which]
suggest[s]
that
her
pain
does
not
significantly impair her ability to concentrate” (id. at 23; see
also id. (“[Plaintiff] testified at the hearing that she goes to
the store with her mother and she washes dishes.
[The Function
Report from Plaintiff’s mother] indicates that [Plaintiff] prepares
simple meals, shops for 35 to 45 minutes every other week, and
attends church when able.
[the
consultative
She is able to handle her finances and
psychological
report]
shows
she
watches
television in the afternoons and evenings (with the volume low) and
she enjoys cooking.” (citing Tr. 275-82, 442)).
For reasons detailed below, at least six of the nine abovequoted observations by the ALJ suffer from serious defects that
preclude the Court (at least on the present record) from treating
them as viable justifications for the discrediting of Plaintiff’s
symptom reporting.
As a result, the Court should remand.
19
For example, via items one, three, and eight above, the ALJ
stated or suggested that the record uniformly shows that Plaintiff
did not suffer severe headaches or, at most, endured significant
headaches only in the early morning.
In fact, Plaintiff’s medical
documentation reflects that, from shortly before her alleged onset
date
forward,
she
repeatedly
reported
severe
headaches,
not
restricted to the start of the day (but instead only marginally
less severe later in the day).
(See Tr. 301 (“Follow-up Note” by
Plaintiff’s primary care physician dictated May 31, 2011:
having
bad
headaches.”
(emphasis
added)),
321
“Still
(letter
from
Plaintiff’s neurologist to her primary care physician dated May 4,
2011:
“[Plaintiff] also has had significant headaches. . . .
She
describes a throbbing headache at least 3 or 4 times a week.”
(emphasis
added)),
355
(consultation
neurosurgeon dictated June 24, 2011:
report
by
Plaintiff’s
“[Plaintiff] states her
headaches are worse in the morning and get somewhat better as day
progresses.”
(emphasis
added)),
364
(examination
Plaintiff’s neurologist dictated June 16, 2011:
report
from
“[Plaintiff]
clearly has worse headaches in the morning and they get somewhat
better as the day goes on.” (emphasis added)), 453 (“Follow-up
note” by Plaintiff’s primary care physician dictated March 14,
2012:
“Still has what [Plaintiff] rates as 10/10 headache.”
(emphasis added)), 454 (“Follow-up note” by Plaintiff’s primary
care physician dictated March 1, 2012:
20
“[Plaintiff] is still
having bad headaches, she has [PTC]. . . .
She does have a lot of
headache pain.” (emphasis added)), 471-73 (emergency room records
for
visit
description
by
of
Plaintiff
“severe”
on
April
headache),
7,
2012,
519
documenting
(“Office
Plaintiff’s neurosurgeon dated March 21, 2012:
Note”
her
from
“[Plaintiff] says
some days her headaches are consistent all day.” (emphasis added)),
533 (“Office Note” from Plaintiff’s neurologist dated August 8,
2012: “[Plaintiff’s] headaches are severe and they are highpressure headaches, being quite severe in morning when she gets up
and better as the day goes on.” (emphasis added)).)
Similarly,
in
item
two
above,
the
ALJ implied
that the
implementation of a shunt relieved Plaintiff’s PTC-caused headaches
beginning in the summer of 2011, but the record demonstrates that
her shunt did not prove a lasting solution.
(See, e.g., Tr. 453
(“Follow-up note” by Plaintiff’s primary care physician dictated
March 14, 2012:
“[Plaintiff] is still having a lot of headaches.
History of [PTC] has not responded well to shunt placement.”), 527
(“Follow-up note” by Plaintiff’s primary care physician dictated
April 18, 2012:
“Recently [Plaintiff] has been having a lot of
difficulties with headaches due to [PTC] and unable to get the
pressure right.
Since I saw her a month ago, she has had her shunt
adjusted 3 times.”).
The record also flatly contradicts the ALJ’s
assertion (in item four above) that Plaintiff “never mentioned
urinary incontinence to any of her doctors” (Tr. 21 (emphasis
21
added)). See Tr. 305 (“Follow-up note” by Plaintiff’s primary care
physician dictated January 18, 2011:
“[Plaintiff] has a lot of
pressure type headaches, her vision has been blurred. . . .
also has some incontinence.”).)
She
Finally, although Plaintiff did
work despite a history of headaches dating to her early adolescence
(as the ALJ stated in item six above), the record indicates that
her PTC headaches emerged later in her life and differed from her
earlier headaches.
(See, e.g., Tr. 364 (“[Plaintiff] knows that
she has the past history of migraine headaches, but she realizes
this is a different type of headache, superimposed.”).)
Given these considerations, the Court should vacate the ALJ’s
finding
that
Plaintiff’s
statements
about
the
extent
of
her
headaches lack credibility and should remand for reassessment of
that subject based on a proper review of the record.
CONCLUSION
Plaintiff has established error(s) warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated, that Defendant’s Motion for
Judgment on
the
Pleadings
(Docket
Entry
12)
be
denied,
that
Plaintiff’s Motion for Judgment on the Pleadings (Docket Entry 10)
be granted in part and denied in part, in that the Court should
vacate the denial of benefits and should remand the case for
administrative
reassessment
of
22
the
medical
record
and
the
credibility of Plaintiff’s symptom reporting regarding her PTC. In
particular, the Court should require:
1) resolution of the conflict between the ALJ’s step two
finding that,
as
headaches
to
due
of March
PTC
and
29,
2013,
the
ALJ’s
Plaintiff
RFC-stage
suffered from
finding
that
Plaintiff’s PTC resolved as of December 2012;
2)
a
determination
of
whether,
even
if
Plaintiff’s
PTC
resolved by December 2012, she nonetheless qualified for a closed
period of benefits during the time between her alleged onset date
of June 14, 2011, and December 2012;
3) reconsideration (based on a proper review of the record) of
whether Plaintiff’s PTC actually resolved by December 2012; and
4) reassessment (based on a proper review of the record) of
the credibility of Plaintiff’s symptom reporting regarding her PTC.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 22, 2015
23
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