MORRISEY v. BERRYHILL
Filing
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MEMORANDUM OPINION AND ORDER signed by JUDGE N. C. TILLEY, JR on 4/1/2019; that Commissioner's Motion for Judgment on the Pleadings [Doc. # 11 ] is GRANTED, and Plaintiff's Motion for Judgment Reversing the Commissioner [Doc. # 9 ] is DENIED. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
YUVAYA DE’ASHAHTE MORRISEY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
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1:17CV234
MEMORANDUM OPINION AND ORDER
Plaintiff Yuvaya D. Morrisey (“Plaintiff”) brought this action to obtain review
of a final decision of the Commissioner of Social Security (“Commissioner”)
denying her claim for supplemental security income. The Court has before it the
certified administrative record and cross-motions for judgment. For the reasons
stated below, Commissioner’s Motion for Judgment on the Pleadings [Doc. #11] is
GRANTED, and Plaintiff’s Motion for Judgment Reversing the Commissioner [Doc.
#9] is DENIED.
I.
Plaintiff filed an application for child supplemental security income in
December of 2012, alleging a disability onset date as of August 1, 2010.
(Administrative Record (“AR”) at 154-59.) The application was denied initially and
upon reconsideration. (Id. at 135-138, 134.) After a hearing, at which Plaintiff
moved to amend the onset date to December 7, 2012, the ALJ determined on
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December 16, 2015, that Plaintiff was not disabled under the Act as either a child
or an adult. (Id. at 10-32, 55, 50-108.) The Appeals Council denied a request for
review, making the ALJ’s decision the final decision for purposes of review. (Id. at
1-3.)
The scope of judicial review of the Commissioner’s final decision is specific
and narrow. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). Review is
limited to determining if there is substantial evidence in the record to support the
Commissioner’s decision. 42 U.S.C. § 405(g); Hunter v. Sullivan, 993 F.2d 31, 34
(4th Cir. 1992). In reviewing for substantial evidence, the Court does not “reweigh conflicting evidence, make credibility determinations, or substitute its
judgment for that of the Secretary.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996). The issue before the Court is not whether Plaintiff is disabled but whether
the finding that she is not disabled is supported by substantial evidence and based
upon a correct application of the relevant law. Id.
The ALJ analyzed Plaintiff’s claim both as a minor and as an adult. First, the
ALJ followed the three-step process to determine whether an individual under the
age of eighteen is disabled. See 20 C.F.R. § 416.924. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since the date of
application. (AR at 14.) At step two, the ALJ found that prior to turning eighteen,
Plaintiff had the following severe impairments: epilepsy, learning disorder, and
mood disorder. (Id. at 15.) At step three, the ALJ found that prior to turning
eighteen, Plaintiff did not have an impairment or combination of impairments that
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functionally equaled the listing. (Id. at 15-16.) In evaluating whether Plaintiff’s
impairments functionally equaled a listing, the ALJ found marked limitations in
acquiring and using information and less than marked limitations in the remaining
categories. (Id. at 21-26.) As such, the ALJ concluded that Plaintiff was not
disabled prior to turning eighteen. (Id. at 26.)
Second, the ALJ determined whether the claimant was disabled as an adult,
as set forth in 20 C.F.R. § 416.920. The ALJ found that Plaintiff had not
developed any new impairment or impairments since turning eighteen. (AR. at 26.)
The ALJ next determined that since turning eighteen, Plaintiff did not have an
impairment or combination of impairments listed in, or medically equal to, one
listed in Appendix 1. (Id.) The ALJ then found that since turning eighteen, Plaintiff
had the residual functional capacity (“RFC”) to perform medium work
except that [she] would never climb ladders, ropes, or scaffolds;
would have no exposure to extreme heat, humidity, and wetness,
dust, odors, fumes and pulmonary irritants, unprotected heights,
hazardous machinery, or moving mechanical parts; [she] would never
drive an automobile; would be limited to perform simple, routine and
repetitive tasks but not at a production rate pace, would make only
simple work-related decisions and would have only occasional
interaction with supervisors, co-workers, and the public.
(Id. at 28.) At the fourth step, the ALJ determined that Plaintiff had no past
relevant work. (Id. at 30.) At step five, the ALJ found that since turning eighteen,
there were jobs which Plaintiff could perform consistent with her RFC, age,
education, and work experience. (Id. at 30.) Consequently, the ALJ determined
that Plaintiff was not disabled under the Act. (Id. at 31.)
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II.
In this appeal, Plaintiff does not challenge the ALJ’s finding that she was not
disabled under the child’s standard prior to turning eighteen. Instead, her
arguments relate only to the ALJ’s analysis under the adult standard. More
specifically, Plaintiff raises three issues. First, Plaintiff contends that the ALJ
materially erred in assessing her mental RFC. (Pl.’s Brief in Supp. of Mot. for J.
Reversing or Modifying the Decision of Comm’r of Soc. Sec. (“Pl.’s Br.”) at 2-7
[Doc. #10].) Second, Plaintiff argues that the ALJ erred in relying on testimony
from a vocational expert that did not accurately take into consideration all her
limitations. (Id. at 8-9.) Third, Plaintiff contends that the ALJ failed to adequately
take into consideration her history of migraines in his step three analysis. (Id. at 911.) As explained below, none of these objections have merit.
A.
Plaintiff first objects that the ALJ materially erred in assessing her mental
RFC. (Id. at 2-7.) In support of this objection, Plaintiff makes several subarguments. First, Plaintiff argues that the ALJ failed “to complete a proper
assessment of her social functioning limitations.” (Id. at 4.) Second, Plaintiff
argues the ALJ failed to address how her social functioning limitations affect her
ability to get along with her co-workers or the general public. (Id. at 4-6.) Third
and finally, Plaintiff argues the ALJ failed to consider if she could perform workrelated functions for a full workday. (Id. at 6-7.) Each argument is addressed in
turn.
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1.
Plaintiff’s first argument in support of her first objection focuses on the
requirements of SSR 96-8p. (Id. at 4.) Plaintiff argues that SSR 96-8p required the
ALJ to analyze her “ability to perform ‘[w]ork-related mental activities generally
required by competitive, remunerative work (including) the abilities to: understand,
carry out, and remember instructions; use judgment in making work-related
decisions; respond appropriately to supervision, co-workers and work situations;
and deal with changes in a routine work setting’.” (Id.) Plaintiff argues the ALJ
violated this mandate when he “failed to discuss what effect, if any Morrisey’s
difficulties with activities of daily living, when combined with her other
impairments, have on her ability to engage in work activity on a sustained basis.”
(Id.)
The operative precedent interpreting SSR 96-8p in the Fourth Circuit is
Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015), which held, in part, that an
ALJ should explain why moderate limitations in concentration, persistence, or pace
do not translate into a limitation in the RFC, and if he or she does not, remand is
warranted. (emphasis added). Many district courts within the Fourth Circuit “have
extended the holding in Mascio to require an ALJ to either include restrictions in
the RFC arising out of mild limitations in the broad areas of functioning or justify
the omission of such restrictions.” Jackson v. Berryhill, No. 1:16CV1162, 2017
WL 3278903, at *8 (M.D.N.C. Aug. 1, 2017) (emphasis in original) (citing
Ashcraft v. Colvin, No. 3:13CV00417RLVDCK, 2015 WL 9304561, at *9
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(W.D.N.C. Dec. 21, 2015) & Reinhardt v. Colvin, No. 3:14-CV-00488-MOC, 2015
WL 1756480, at *3 (W.D.N.C. Apr. 17, 2015)), adopted by unpublished judgment
(Aug. 24, 2017).
Assuming this is the correct approach, and Mascio does in fact apply to mild
limitations of functioning, the ALJ complied with this requirement1. The ALJ
concluded that Plaintiff had mild limitations in her activities of daily living because
of her need for “seizure precautions.” (AR at 27.) The ALJ noted that Plaintiff
“can bathe and dress herself, she attends school daily, she can do light cleaning,
and she provides care for her baby,”2 (id. at 27, 63, 79, 84-85, 92), and
concluded that Plaintiff’s “impairments are controlled with medication such that
she has been able to continue her daily activities, hobbies and responsibilities,” (id.
at 30). The ALJ then included seizure precautions in the RFC, restricting Plaintiff
to no driving, no climbing of ladders, ropes, or scaffolds, and no exposure to
environmental hazards. (Id. at 28.)
Furthermore, Plaintiff does not argue the evidence justifies more than a mild
limitation, nor does she explain what additional limitation is needed. (See generally
Pl.’s Br.) See also, Jackson, 2017 WL 3278903 at *8 (“Plaintiff neither disputes
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If Mascio does not apply to mild limitations, then the ALJ still has not committed
error, because Mascio applies a higher burden to the ALJ, and thus complying with
it would necessarily guarantee exceeding the lower standard that would otherwise
be applied.
2
Both Plaintiff and her godmother reported that her seizure-related activity had
become relatively infrequent in the prior eight months. (See AR 27 , 30, 89-90,
69-71, 97-98.)
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the ALJ’s finding of mild limitation in daily activities . . . nor makes any attempt to
show how a mild limitation in daily activities should have further impacted the
ALJ’s RFC.”) Therefore, the ALJ did appropriately include restrictions arising out
of her mild limitations in daily activities, and thus complied with Mascio. The
objection therefore has no merit.
2.
Courts have extended similar reasoning as that used in the analysis of daily
living to the analysis of social functioning. See Moore v. Berryhill, No. 1:17-CV00122-MR, 2018 WL 3543084, at *6 (W.D.N.C. July 23, 2018) (noting that in
relation to social functioning, the court’s “treatment of functional limitations arising
from minor, mild health restrictions need not be as extensive and detailed as the
treatment required regarding moderate restrictions. Mascio requires only that they
be addressed adequately.”) Thus, a similar analysis is used to determine if the ALJ
adequately addressed Plaintiff’s limitations.
In this case, the ALJ adequately addressed Plaintiff’s minor social
functioning limitations. The ALJ noted that after high school Plaintiff did not have
problems getting along with people, was able to attend community college and
make friends there, and communicated through Facebook and Twitter. (AR at 27.)
Additionally, although Plaintiff said she could be rude sometimes without meaning
to, and was nervous when people asked her questions, she was still able to relate
well to the examiners. (Id.) Furthermore, the ALJ mentioned that Plaintiff was
“able to ask for questions if she needed help” in community college, and noted
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that her godmother testified that she had matured since she had her baby and had
no issues with others after leaving high school. (Id. at 30, 74, 76-77, 99.)
Although Plaintiff does discuss evidence suggesting she had more than mild
issues in social functioning, the evidence she cites in support of this claim almost
entirely pre-dates her improvement in social functioning after leaving high school.
(Pl.’s Br. at 5-6.) Thus, the ALJ’s analysis is consistent with this evidence, and
therefore the ALJ adequately addressed Plaintiff’s social functioning limitations and
remand is not warranted.
3.
Plaintiff’s third sub-argument under her first objection is that the ALJ failed
to conduct the analysis required by Mascio after he determined she had a moderate
limitation in concentration, persistence and pace. (Pl.’s Br. at 6.) This argument
has no merit.
It is true that Mascio held that “an ALJ does not account for a claimant’s
limitations in concentration, persistence, and pace by restricting the hypothetical
question to simple, routine tasks or unskilled tasks.” Mascio, 7810 F.3d at 638.
However, courts in our district have clarified this holding concluding,
[T]he weight of authority in the circuits that rendered the rulings
undergirding the Fourth Circuit’s holding in Mascio supports the view
that the non-production restriction adopted in this case sufficiently
accounts for [the p]laintiff’s moderate limitation in CPP [concentration,
persistence, and pace]. Moreover, that approach makes sense. In
Mascio, the Fourth Circuit held only that, when an ALJ finds moderate
limitation in CPP, the ALJ must either adopt a restriction that
addresses the “staying on task” aspect of CPP-related deficits (which
a restriction to simple tasks does not, at least on its face) or explain
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why the CPP limitation of that particular claimant did not necessitate a
further restriction regarding “staying on task.” Where, as here, the
ALJ has included a specific restriction that facially addresses
“moderate” (not “marked” or “extreme,” see 20 C.F.R. §
416.920a(c)(4)) limitation in the claimant’s ability to stay on task, i.e.,
a restriction to “non-production oriented” work, Mascio does not
require further explanation by the ALJ, at least absent some
evidentiary showing by the claimant (not offered here) that he or she
cannot perform even non-production-type work because of his or her
particular CPP deficits.
Grant v. Colvin, No. 1:15CV515, 2016 WL 4007606, at *6 (M.D.N.C. July
26, 2016) (emphasis added), adopted by unpublished judgment (M.D.N.C.
Sept. 21, 2016).
The instant case illustrates the exact scenario the Grant court
contemplated. Here the ALJ found Plaintiff had a moderate restriction in
concentration, persistence, and pace, and thereby imposed a restriction of
“simple, routine and repetitive tasks, but not at a production rate pace.” (AR
at 27-28) (emphasis added.) Plaintiff has made no allegations that she
cannot perform this type of work, and therefore, Mascio requires no further
explanation by the ALJ. Thus, Plaintiff’s objection has no merit.
B.
Plaintiff’s second objection argues that the ALJ erred in relying on testimony
from a vocational expert that did not accurately take into consideration all her
limitations because the vocational expert was asked and responded to a question
that was less-restrictive than her actual RFC. (Pl.’s Br. at 8-9.) In posing the
hypothetical question to the vocational expert, the transcript reflects the ALJ used
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the phrase “only frequent interaction” instead of using the phrase used in the RFC
of “occasional interaction.” (Id. at 8; see also AR 102.) It is possible this is a
transcription error, because use of the word “infrequent” would be more consistent
with the ALJ’s use of the word “only” and with the RFC’s use of “occasionally”.
But even if the ALJ did say “frequent interaction,” it is not a mistake that warrants
remand.
Several courts within this circuit have considered this issue and persuasively
concluded that the ALJ’s incorrect use of the phrase “frequent interaction” instead
of “occasional interaction” in the hypothetical “did not change the outcome of the
decision and amounts to harmless error.” Fletcher v. Colvin, No.1:15CV166, 2016
WL 915196, at *10 (M.D.N.C. Mar. 4, 2016) (quoting Blackstone v. Astrue, No.
SKG-12-2776, 2014 WL 253538, at *3 (D. Md. Jan. 17, 2014)), adopted by
unpublished judgment (March 28, 2016); see also Bradley v. Colvin, No.
2:14CV23774, 2015 WL 5725832, at *3-5 (S.D.W. Va. Sept. 30, 2015).
For instance, in Fletcher, the ALJ used the phrase “frequent interaction” in
posing the hypothetical, even though the RFC used the phrase “occasional
interaction.” Id. at 9. The Fletcher court noted that despite this, both of the
compatible jobs identified by the vocational expert in response to the hypothetical
contained the number eight in their DOT codes, which indicates the job requires
the “lowest possible level of human interaction that exists in the labor force.” Id. at
10. Additionally, the DOT entries for both jobs “describe the amount of taking
instructions required as not significant.” Id. Therefore, the court concluded that
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the jobs identified would not require Plaintiff to exceed his RFC of “occasional
interaction” and thus the error was harmless. Id.
Regardless of whatever phrase the ALJ actually used, Fletcher is instructive
because like in Fletcher, the vocational expert identified three jobs satisfying the
hypothetical: Marker, Linen Room Attendant, and Coffee Marker, all of which
contained the number eight in their DOT codes, indicating the lowest level of
human interaction possible, and which all describe the amount of “taking
instructions” as “not significant.” DOT, 369.687-026, 1991 WL 673074 (marker);
DOT, 222.387-030, 1991 WL 672098 (linen room attendant); DOT, 317.684010, 1991 WL 672750 (coffee maker). Therefore, even if the ALJ did err,
because all the jobs provided by the vocational expert meet the stricter limitations
posed by the RFC, the error by the ALJ was harmless, and does not warrant
remand.
C.
In her third and final objection, Plaintiff argues two points: first, that the ALJ
should have determined if her impairments, specifically her migraine headaches,
functionally equaled Listing 11.03, (Pl.’s Br. at 10), and second, that the ALJ’s
failure to consider her migraine headaches in making the RFC justify remand, (id.).
Neither of these arguments warrant remand.
1.
Plaintiff first argues that the ALJ committed reversible error by failing to
consider if her migraine headaches functionally equaled Listing 11.03. (Id.) Before
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an ALJ is required to consider if a plaintiff’s impairments meet a listing, there must
first be a threshold showing of severe impairments. Tanner v. Comm’r of Soc.
Sec., 602 F. App’x 95, 100 (4th Cir. 2015). In this case, Plaintiff met this
threshold showing, because the ALJ determined she had several severe
impairments. (AR at 26.) However, the ALJ did not determine that one of
Plaintiff’s severe impairments was her migraines. (Id.) In fact, the ALJ made no
mention of her migraines at Step Two. (Id.)
Despite this, the ALJ was still required to consider what effect Plaintiff’s
migraines had, if any, when determining if Plaintiff’s impairments functionally equal
a Listing. “Congress explicitly requires that the combined effect of all the
individual’s impairments be considered, without regard to whether such impairment
if considered separately would be sufficiently severe.” Snelgrove v. Colvin, No.
8:15-cv-04440-JMC-JDA, 2015 WL 13229265, at *9 (D.S.C. Nov. 8, 2015)
(internal quotations omitted) (quoting Walker v. Bowen, 889 F.2d 47, 49-50 (4th
Cir. 1989)); see also, Tanner, 602 F. App’x at 100 (“Moreover, because Ms.
Tanner made the threshold showing of severe impairments, the ALJ was required
to continue the sequential evaluation and consider all of her impairments, both
severe and non-severe, that significantly affect her ability to work.”).
In this case, the ALJ considered Plaintiff’s migraines and headaches, but
only in analyzing whether she was disabled before reaching age eighteen. (See AR
at 16, 18, 20.) Even if the ALJ did not think that Plaintiff’s migraines as an adult
would satisfy a Listing or would not satisfy a Listing when considered in
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combination with any of her other impairments, he likely should have considered
her migraines.
However, the failure to do so in this case constitutes harmless error,
because there is minimal evidence in the administrative record regarding Plaintiff’s
migraines, and thus even if it had been considered, it would not have affected the
outcome of the ALJ’s decision that Plaintiff did not satisfy the requirements of the
Listing.
Plaintiff argues that the ALJ should have considered Plaintiff’s migraines
when he evaluated if Plaintiff’s impairments functionally equaled Listing 11.03.
(Pl.’s Br. at 10.) Listing 11.03 is no longer in effect, but at the time of the ALJ’s
decision, it related to nonconvulsive epilepsy:
11.03 Epilepsy – nonconvulsive epilepsy (petit mal, psychomotor, or
focal), documented by detailed description of a typical seizure pattern,
including all associated phenomena; occurring more frequently than
once weekly in spite of at least 3 months of prescribed treatment.
With alteration of awareness or loss of consciousness and transient
postictal manifestations of unconventional behavior or significant
interference with activity during the day.
Eden v. Berryhill, No. 2:16-cv-03703, 2017 WL 104380, at *15 (S.D.W. Va.
Mar. 28, 2017) (“In January 2017, Section 11.00 was substantially revised . . .
reserving Listing 11.03.”). Despite the fact 11.03 concerns epilepsy, the Social
Security Administration Program Operations Manual Systems (“POMS”) DI
24505.015(B)(7)(B), entitled “Finding Disability Based on the Listing of
Impairments,” identifies it as “the most closely analogous listed impairment” for
considering migraines. In line with this recommendation, courts have evaluated
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ALJ decisions concerning migraines under this Listing. Eden, 2017 WL 1404380 at
*16; see Worley v. Berryhill, No. 7:18-CV-16-FL, 2019 WL 1272540, at *3
(E.D.N.C. Feb. 4, 2019) (“For claims arising before Sept. 29, 2016, courts
generally consider Listing 11.03 (Nonconvulsive Epilepsy) the appropriate listing for
determining medical equivalence of a claimant’s migraine headache impairment.”).
To determine if a plaintiff’s migraines are functionally equivalent to Listing
11.03, many courts have considered an alternate Listing definition created by
Mesecher v. Berryhill, No. 4:15-CV-859-BL, 2017 WL 998373 (N.D. Tex. Mar. 15,
2017). See e.g. Worley, 2019 WL 1272540 at *4; Eden, 2017 WL 1404380 at
*16. The Court in Mesecher determined that Listing 11.03, when applied to
migraines, should state:
11.03 Migraine Headaches, documented by detailed description of a
typical headache event pattern, including all associated phenomena,
e.g. premonitory symptoms, aura, duration, intensity, accompanying
symptoms, and treatment; occurring more frequently than once
weekly, counting characteristic headache events. With (1) alteration
of awareness, which means a condition of being inattentive, or not
cognizant of one’s surroundings and external phenomena as well as
one’s personal state or (2) significant interference with activity during
the day that may result from, e.g., a need for a darkened, quiet room;
lying down without moving; or a sleep disturbance that impacts on
daytime activities.
Mesecher, 2017 WL 998373 at *4.
Using this modified Listing from Mesecher, in this case, there is not enough
evidence in the administrative record to support a finding that Plaintiff’s migraines
could medically equal the criteria of Listing 11.03. Both the criteria of Listing
11.03 and the alternate definition created by Mesecher require that migraines
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occur at least once a week, but the administrative record in this case does not
show that Plaintiff suffered from weekly migraine headaches. When Plaintiff was a
child, she did suffer from weekly migraines which were treated with a prescription
drug, Maxalt, and which were well documented3. (See e.g. AR 115, 345, 371,
374, 378, 380, 382, 384, 386, 388.) But, as Plaintiff entered adulthood, she
improved, as evidenced by her testimony that she no longer took any prescription
medications for her migraines, and instead relied solely on ibuprofen, (AR at 84),
and the administrative record which reflects that there was only one incident
where Plaintiff sought treatment from migraines after her eighteenth birthday, (AR
at 643.) (See also AR at 1121 (showing her prescription medication list as of April
2, 2015 does not contain a prescription for treatment of migraine headaches).)
Furthermore, when migraines are mentioned in Plaintiff’s treatment records
after her eighteenth birthday, save for the one occasion on which she sought
treatment for a migraine, they are exclusively discussed in terms of past medical
history. (See AR at 364, 396, 620, 712, 739, 753, 759, 864, 886, 1012, 1121,
1147.)
Thus, given Plaintiff’s testimony and the evidence in the Administrative
Record, Plaintiff’s migraines do not occur weekly, and therefore Plaintiff would not
have satisfied the Listing even if the ALJ had considered her migraines.
3
Plaintiff raises no objections concerning how the ALJ evaluated her migraines
when determining if she was disabled as a child, and so it is not considered by the
Court.
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Accordingly, the ALJ’s failure to do so was in effect harmless error, and therefore
remand is not warranted.
2.
Plaintiff’s second argument related to her third and final objection is that the
ALJ’s failure to consider her migraine headaches in making the RFC justifies
remand. “[A]lthough some consideration of every impairment, separately and in
combination with others, is required to ascertain a claimant’s RFC, an ALJ need
not incorporate restrictions in the RFC to reflect a claimant’s non-severe
impairments when the ALJ reasonably determines such impairments do not
actually result in work-related functional limitations.” Blevins v. Colvin, No. 5:15cv-14240, 2016 WL 6987169, at *15 (S.D.W. Va. Sept. 16, 2016). Given the
lack of evidence regarding Plaintiff’s migraines in the administrative record, the
ALJ did not need to discuss Plaintiff’s migraines, nor include an accommodation
for them, because there was no evidence in the administrative record to suggest
that Plaintiff’s migraines would result in work-related functional limitations. Thus,
remand is not required.
III.
For the reasons stated herein, IT IS HEREBY ORDERED that Commissioner’s
Motion for Judgment on the Pleadings [Doc. #11] is GRANTED, and Plaintiff’s
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Motion for Judgment Reversing the Commissioner [Doc. #9] is DENIED.
This the 1st day of April, 2019.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge
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