Reeves v. Commission of Social Security

Filing 17

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, we conclude Plaintiffs appeal is properly granted. This matter is remanded to the Acting Commissioner for further consideration consistent with this opinion. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 7/30/15. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KIMBERLY ANN REEVES,

:
:CIVIL ACTION NO. 3:15-CV-444
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN W. COLVIN, Acting
:
Commissioner of the Social
:
Security Administration,
:
:
Defendant.
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s appeal from the Commissioner’s
denial of Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (“Act”), 42 U.S.C. §§ 401-433.

(Doc. 1.)

Plaintiff originally alleged disability due to fibromyalgia, PTSD,
depression, migraines, TBI, hypertrophic cardiomyopathy, carpal
tunnel bilateral, plantar fasciitis, shortness of breath and
insomnia.

(R. 176.)

In her application, Plaintiff said she

stopped working because of her conditions on September 28, 2012.
(Id.)

The Administrative Law Judge (“ALJ”) who evaluated the claim

concluded that Plaintiff’s severe impairments of fibromyalgia,
carpal tunnel syndrome, obesity, migraine headaches, post-traumatic
stress disorder (“PTSD”), panic disorder, anxiety disorder, and
major depressive disorder/depression did not alone or in
combination meet or equal the listings.

(R. 13-15.)

The ALJ found

that Plaintiff had the residual function capacity (“RFC”) for light

work with certain nonexertional limitations and that she was
capable of performing jobs that existed in significant numbers in
the national economy.

(R. 15-27.)

The ALJ therefore found

Plaintiff was not disabled under the Act from September 28, 2012,
through the date of the decision, October 14, 2014.

(R. 27-28.)

With this action, Plaintiff asserts that the case should be
remanded for further administrative proceedings based on the
following errors: 1) the ALJ’s discussion of Plaintiff’s Veterans
Administration disability rating was insufficient; 2) the ALJ did
not address the work-related limitations caused by Plaintiff’s
migraine headaches; 3) the ALJ did not properly evaluate the
medical opinion of the Agency’s examining consultant, Alfred
Hardaway, M.D.; 4) the ALJ erred when he failed to assess
Plaintiff’s credibility in light of her work history; and 5)
because the RFC does not accurately set out all of Plaintiff’s
individual impairments and limitations, the ALJ did not meet her
step five burden of showing that Plaintiff can perform other work.
(Doc. 14 at 2, 15.)
After careful consideration of the administrative record and
the parties’ filings, we conclude Plaintiff’s appeal is properly
granted.
I. Background
A.

Procedural Background
On April 29, 2014, Plaintiff protectively filed an application

2

for DIB.

(R. 11.)

As noted above, she alleges disability

beginning on September 28, 2012, due to

fibromyalgia, PTSD,

depression, migraines, TBI, hypertrophic cardiomyopathy, carpal
tunnel bilateral, plantar fasciitis, shortness of breath and
insomnia.
2014.

(R. 176.)

(R. 11.)

The claim was initially denied on June 19,

Plaintiff filed a request for a review before an

ALJ on June 24, 2014.

(Id.)

On September 23, 2014, ALJ Michelle

Wolfe held a video hearing at which Plaintiff and Vocational Expert
Patricia Chilleri testified.

(Id.)

At the hearing, Plaintiff was

represented by Andrew Youngman, a non-attorney representative.
(Id.)

The ALJ issued her unfavorable decision on October 14, 2014,

finding that Plaintiff was not disabled under the Social Security
Act during the relevant time period.

(R. 28.)

On December 5, 2014, Plaintiff filed a Request for Review with
the Appeals Council.

(R. 6-7.)

The Appeals Council denied

Plaintiff’s request for review of the ALJ’s decision on January 7,
2015.

(R. 1-5.)

In doing so, the ALJ’s decision became the

decision of the Acting Commissioner.

(R. 1.)

On March 3, 2015, Plaintiff filed her action in this Court
appealing the Acting Commissioner’s decision.

(Doc. 1.)

Defendant

filed her answer and the Social Security Administration transcript
on May 7, 2015.

(Docs. 12, 13.)

Plaintiff filed her supporting

brief on June 22, 2015.

(Doc. 14.)

Defendant filed her opposition

brief on July 14, 2015.

(Doc. 15.)

Plaintiff filed a reply brief

3

on July 28, 2015.

(Doc. 16.)

Therefore, this matter is fully

briefed and ripe for disposition.
B.

Factual Background
Plaintiff was born on September 9, 1971, and was forty-one

years old on the alleged disability onset date.

(R. 26.)

Plaintiff testified that she has an associates degree in criminal
justice.

(R. 60.)

Plaintiff has past relevant work as a claims

processor, security guard, front desk clerk, housekeeper,
correctional officer at a state hospital, and a chemical operations
specialist.

(Id.)

Plaintiff served in the United States Army from

1989 to 2004 and is an Iraq War veteran.
1.

(R. 550; Doc. 14 at 3.)

Impairment Evidence
Because Plaintiff’s claimed errors relate to certain physical

impairments and specific opinions, our review will focus on
evidence related to the alleged errors.
a.

Migraine Headaches
The following evidence charts the history of Plaintiff’s

migraine headache impairment.

We include related evidence to

provide context.
A November 4, 2009, Neurology Resident Note from the Hunter
Holme McGuire VA Medical Center states that Plaintiff was seen for
follow up because of headache for which she was seen in the
emergency department on October 21, 2009.

(R. 656.)

Plaintiff was

prescribed Topamax and Imitrex and she reported the Imitrex had a
4

mild effect on her headache. (Id.)

Because Plaintiff also

complained of eye redness at the emergency department, she was sent
to the eye clinic where some problems were noted and a lumbar
puncture was offered which Plaintiff refused.

(Id.)

Plaintiff

continued to report blurry vision at the November 4th visit.

(Id.)

It was noted that a lumbar puncture was necessary for a proper
diagnosis.

(R. 658-59.)

The pain assessment conducted at the time

indicates that the headaches were accompanied by nausea and an
inability to concentrate but did not affect Plaintiff’s sleep,
mood, or activities of daily living.

(R. 559-60.)

Plaintiff

reported that the pain was sharp and unbearable, and she had the
headache constantly for days.
at the time.

(Id.)

Her pain was eight out of ten

(R. 660.)

Plaintiff was scheduled to have a lumbar puncture on November
5, 2009, but did not show up for her appointment.

(R. 648.)

The

procedure was rescheduled for November 9, 2009, but Plaintiff, who
arrived at the appointment with her husband, was anxious and
refused to continue with the procedure.
rescheduled for November 12, 2009.

(Id.)

The procedure was

(Id.)

A Primary Care Walk-in Patient Note of November 9, 2009,
authored by Cynthia Kosuda, a licensed practical nurse,

indicates

that Plaintiff came in requesting a letter from her primary care
provider “stating why she can’t work.”

(R. 651.)

The note also

provides the following information: “She states that he has

5

difficulty falling and staying asleep and is drowsy during the day,
feels as though she has difficulty breathing at night, snores and
suffers with headaches daily.
this time.”

(Id.)

She voices no complaint of pain at

Ms. Kosuda discussed Plaintiff’s request with

Wayne Ham, M.D., and Dr. Ham did not write the note but ordered a
sleep study.

(R. 652.)

Because Plaintiff was being seen by the

ENT and neurology clinics, Ms. Kosuda advised her to speak with the
clinics about the requested note.

(Id.)

On November 17, 2009, VA CWT/SE Treatment Plan Note addresses
Plaintiff’s unemployed status and notes her strengths, abilities,
job needs and preferences, vocational goals, and barriers to
employment.
be barriers.

(R. 638-39.)

Medical difficulties were not noted to

(R. 639.)

On November 24, 2009, Plaintiff again presented to the
neurology clinic requesting medication for headache and stating the
neurologist had told her there was other medication she could take
but he did not order it.

(R. 621.)

Plaintiff rated her discomfort

at three out of ten and reported daily headaches with blurred
vision but denied nausea, vomiting, photophobia or phonophobia.
(Id.)

Plaintiff was informed that the neurologist’s previous note

stated that a different medication would be considered depending on
the results of the lumbar puncture.

(R. 622.)

A November 29,

2009, Addendum to the note by the attending neurologist stated that
it was imperative to perform a lumbar puncture to properly diagnose

6

Plaintiff and she would be given Lorazapam to help reduce her
anxiety for the procedure.

(R. 622-23.)

A December 1, 2009, VA Progress Note indicates that Plaintiff
presented with a chief complaint of migraine headaches.

(R. 600.)

The following history was recorded:
38 u/o WF with pmh of exposure to two
bomb blasts in 2003 and new onset headache
10/2009. She was seen in the ER 10/28/09 and
found to have a swollen optic nerve, referred
to opthamologist where she was dx with
pseudotumor cerebi and referred to Neurology.
Upon her visit to the Neurology clinic
11/4/09 a lumbar puncture procedure was
attempted but the patient could not tolerate
it. The plan was to administer Diamox
depending on the opening pressure. She has
been taking Topamax and Imitrex, Naproxen
with very minimal relief it decreases from
7/10 ->3/10.
Today she presents to the Neurology
clinic complaining of new onset dizziness,
blackouts and blurry vision. She reports
that she blacked out while sitting watching
television lasting only a few minutes which
was witness [sic] by her husband. Prior to
the blackout, patient experienced dizziness
and lightheadedness. She describes her
headaches as being frontal and occipital with
worse pain in the latter. She also has
photophobia and phonophobia. She also c/o
decreased sensation in her right hand and leg
since 11/04/09.
(R. 600.)

The Assessment was “pseudotumor cerebri and migraine

headaches with little relief from meds.”

(R. 603.)

Plaintiff was

scheduled for another lumbar puncture and was to follow up in the
Neurology clinic one week thereafter.

(Id.)

Plaintiff had the lumbar puncture on December 3, 2009.
7

(R.

589-94.)
On December 7, 2009, Plaintiff presented to the Emergency
Department complaining of headache, nausea and dizziness since the
December 3rd lumbar puncture.

(R. 586.)

Plaintiff was given

morphine for pain and a neurology consult was ordered.

(Id.)

Assessment included the observation that “[h]eadaches could be
secondary to tension headaches vs migrane [sic] headaches vs tumor
vs sinus venous thrombosis vs aneurysm (non leaking aneurysm).
Post LP pressure headache may be contributing to pts headaches.”
(Id.)

The plan included further diagnostic studies and changes to

her medical regimen.

(Id.)

Plaintiff was seen in the neurology resident clinic on
December 15, 2009, for follow up.

(R. 566.)

Plaintiff reported

that the neurologist she saw on December 7th “discontinued the
topiramate and started her on amitriptyline to titrate to 100 mg at
bedtime.”

(Id.)

Plaintiff reported that she was taking 75 mg. and

was doing well and she got significant relief from Imitrex (R. 564,
566.)

She also reported that she continued to have daily headaches

but they were not as intense and did not last as long.

(R. 566.)

The plan was to titrate Elavil to 100 mg. and if the headaches were
not sufficiently controlled with Elavil, to restart Topamax at a
low dose.

(R. 565.)

A VA psychology note from December 30, 2009, indicates that
Plaintiff reported that she did not feel her physical and mental

8

health allowed her to work at the time.

(R. 549.)

The note

provides the following background information:
Upon returning from Iraq, Ms. Reeves
returned to her home in Pennsylvania, but
changed jobs - she had previously worked for
9 years doing insurance claims for Tri-Care
while in the reserves but changed to work as
a police officer at a school. . . . She
worked for 2.5 years, but decided to leave
and move to Virginia to help care for her
mother when she became ill. She said she has
since regretted moving as she has not found
work she enjoyed and has been “very
stressed.” She added that she remains in
pain every day, has been very depressed, and
some symptoms of PTSD. She reported she has
attempted to work three jobs, most recently
leaving her job working as a housekeeping
manager for a hotel after being treated in a
negative way by her manager at the hotel.
She currently is remaining at home and caring
for her three children ages 10, 9, and 2.
She has a fourth child from a prior marriage
who has recently joined the Marines.
(R. 548-49.)
At a January 14, 2010, kinesiotherapy initial assessment,
Plaintiff’s problem list included migraine headaches for which she
was on medication.

(R. 544.)

It was noted that Plaintiff was

unemployed and was going to school for her associates degree in
criminal justice but was thinking of changing her major to
respiratory therapy.

(R. 545.)

A January 14, 2010, psychology note indicates Plaintiff
reported feeling better since she got more medication for her
headaches and her mood had improved.

(R. 546.)

Plaintiff also

reported that she wanted to return to work and was hoping to return
9

to school to develop skills as a respiration therapist or x-ray
technician–-she no longer wanted to work in law enforcement due to
physical and mental stresses.

(Id.)

On January 21, 2010, it was noted that Plaintiff’s goal was
“to get back to normal,” and she was seeing neurology for headaches
and was working on medication management.

(R. 538.)

A January 27, 2010, recreational therapy note stated that
Plaintiff appeared more motivated and felt her medication was
helping.

(R. 522.)

She planned to enroll her children in a summer

camp and volunteer at the camp herself.

(Id.)

A February 3, 2010, treatment note indicated Plaintiff
continued to complain of headaches and was being followed by
neurology.

(R. 516-18.)

Interdisciplinary treatment goals

included the following: “Client will obtain suitable employment.
GOAL NOT MET –- MODIFY AND CONTINUE –- Client will verbalize plan
for future employment or education.”

(R. 518.)

Plaintiff’s

“Current Vocational Status” was listed as unemployed: she had
recently quit a job in the hotel industry and had several (5)
interviews but was not working.

(R. 519.)

A February 9, 2010, psychology note states that Plaintiff’s
issues were focused on PTSD and she seemed more engaged in making
life choices.

(R. 513.)

She said her husband told her she needed

to work because she was less irritable when working and Plaintiff
agreed with the assessment–-noting that she had done “adequately”

10

at her previous job until she had interpersonal issues with her
boss.

(Id.) Additionally, Plaintiff reported that
she is currently waiting on VA and social
security claims to see if she qualifies and
if she does she is hopeful she can afford
daycare and return to college for her
bachelor’s degree to switch careers. She has
continued to apply for some positions, but
has not found anything yet. In the meantime,
she is planning to fly to Portland, Oregon,
to visit family and is hoping this respite
from childcare will be helpful.

(Id.)
A sleep study was performed on March 20, 2010.

(R. 480.)

The

Impression stated that the “recording does not suggest sleep
disordered breathing . . . .
indication of cause.

Sleep is fragmented without

(Medications, esp antidepressants, may

contribute but other causes are certainly possible.)”

(Id.)

As Defendant notes, from March 2010 until January 2013 there
are no medical records concerning Plaintiff’s physical treatment.
(Doc. 15 at 6.)
On January 19, 2013, consultative examiner Kimberly Jones,
D.O., noted that Plaintiff presented for evaluation of her chief
complaints, i.e., depression, PTSD, fibromyalgia, migraine
headaches, dextroscoliosis, plantar fasciitis, and carpal tunnel
syndrome with PTSD and fibromyalgia noted as her biggest problems.
(R. 280.)

Regarding headaches, Dr. Jones noted they were believed

to come from the concussion she experienced while in Irag.
281.)

(R.

Plaintiff reported that she gets two migraines per week of
11

variable severity and she takes Imitrex for them.

(Id.)

Plaintiff

added that she gets nausea and vomiting with the headaches, has
passed out from them in the past and is unable to tolerate light
when she has a headache.

(Id.)

Plaintiff was having a migraine at

the time of her visit which Dr. Jones stated caused her moderate
distress.

(R. 283.)

Dr. Jones recorded that Plaintiff stopped

working as a correctional officer in September 2012 because of her
claustrophobia, PTSD, and being unable to tolerate going up and
down the stairs.

(Id.)

Plaintiff reported that she was doing all

household chores but had difficulty with stairs and did not mow the
grass.

(R. 281-82.)

headache.

(R. 285.)

Dr. Jones’ Impressions included migraine
Dr. Jones found no objective functional

limitations but stated that Plaintiff had a blunted affect which
appeared to correlate with her reported history of PTSD and
depression.

(Id.)

Plaintiff was seen on December 6, 2013, for primary care
follow up by CRNP Kathryn Wilt.

(R. 304.)

Plaintiff reported that

headaches occurred two or three times per week and she gets good
relief with Imitrex.

(R. 305.)

On June 16, 2014, Plaintiff was seen by Alfred Hardaway, M.D.,
for a consultative examination.

(R. 334.)

Plaintiff’s chief

complaints were similar to those expressed to Dr. Jones in January
2013.

(See R. 334.)

Plaintiff reported at least two headaches per

week with no visual field defects.

12

(Id.)

Plaintiff continued to

take Imitrex for the headaches.
included migraine headaches.

(Id.)

Dr. Hardaway’s diagnosis

(R. 337.)

Plaintiff saw Amit Mehta, M.D., a family practitioner at
Geisinger Lock Haven in June and July of 2014, with the chief
complaint of right knee pain.

(R. 356-63.)

On July 8, 2014, it

was noted that Plaintiff also had complaints of lower backache and
some stiffness/discomfort in her shoulders and rotation was tender.
(R. 356.)

It was also noted that Plaintiff had a history of

fibromyalgia.

(Id.)

Migraine headaches are not mentioned.

(See

R. 356-63.)
b.

Hardaway Opinion
Dr. Hardaway completed a Medical Source Statement of Ability

To Do Work Related Activities on June 16, 2014.

(R. 339-44.)

He

noted certain lifting and carrying limitations due to fibromyalgia.
(R. 339.)

Though Dr. Hardaway found some sitting, standing and

walking limitations, the total time for sitting standing and
walking equaled eight hours.

(R. 340.)

Dr. Hardaway also found

Plaintiff had some postural limitations due to back pain and
certain environmental limitations due to Plaintiff’s claims that
she had fibromyalgia pain in certain conditions.

(R. 342-43.)

In

answer to the question of whether Plaintiff could travel without a
companion for assistance, Dr. Hardaway checked “no” and noted that
this assessment was based on Plaintiff’s PTSD and fibromyalgia
pain.

(R. 344.)

13

c.

Veterans Disability
A letter from the Department of Veterans Affairs dated May 12,

2014, states the following: Plaintiff’s “combined service-connected
evaluation” is 70%; the effective date of the last change to her
service award was December 1, 2013; Plaintiff was being paid at the
100% rate because she was “unemployable” due to her serviceconnected disabilities; and Plaintiff was considered to be totally
and permanently disabled due to her service-connected disabilities.
(R. 144.)

The correspondence indicated that it had been determined

that the increase in percentage was granted because Plaintiff’s
PTSD and fibromyalgia had worsened: effective May 27, 2011, the
PTSD percentage went from 30% to 50% and the fibromyalgia
percentage from 10% to 40%.

(R. 145.)

The effective date for

Plaintiff’s individual unemployability was identified as May 27,
2011.
3.

Hearing Testimony
Plaintiff testified that she stopped working as a corrections

officer for the GEO Group in September 2012 because her pain had
gotten worse and she was missing a lot of days and she believed her
options were to quit or be fired so she decided to quit so she
would not have a termination on her record.
worked there for about five months.

(R. 70.)

(R. 61, 63.)

She had

She stated that she

tried to look for work after she left GEO but medications had been
added which made her nauseous and sleepy so she felt she could not

14

go back to work full time.

(R. 64.)

Plaintiff also said her

fibromyalgia had gotten worse since 2012, she was being tested for
another muscle disease, and she still had migraines once or twice a
week which require her to be in bed with light blacked out and no
noise.

(Id.)

Before GEO, Plaintiff worked from June 2010 to January 2011 at
a state hospital with a job function similar to that of a
corrections officer.

(R. 72-73.)

Plaintiff was terminated for

missing two weeks of work, an absence she attributed to pressure
and bleeding in her eyes.

(R. 73.)

Plaintiff testified that she

left her previous job as a hotel housekeeping manager when she had
“interpersonal issues” with the manager after she returned from an
absence due to chest pain and a heart attack.

(R. 74.)

worked at the hotel for approximately six months.

She had

(Id.)

Plaintiff testified that she at one time had migraines five
days a week but, with medication, the frequency was reduced to one
or two days a week.

(R. 64, 77-78.)

She testified that when she

has a migraine she goes to bed with the lights blacked out and no
noise and the headache can last from four to twenty-four hours.
(R. 64, 78.)

She said the Imitrex works for the milder headaches

but the more severe ones she just has to “wait them out.”

(R. 78.)

The Vocational Expert (“VE”) was asked to consider a
hypothetical individual with the same age, education and work
history as Plaintiff who had the RFC to perform work at the light

15

exertional level but subject to limitations.

(R. 89-90.)

The individual would have the ability . . .
[to] occasional[ly] balance, stoop, crouch,
crawl, kneel, as well as climb but never on
ladders, ropes or scaffolds. The individual
will need frequent pushing and pulling with
the upper extremities and lower extremities
and frequent gross and fine manipulation.
The individual would need to avoid
concentrated exposure to temperature extremes
of cold and heat, wetness, humidity, fumes,
odors, dust, gases and poor ventilation as
well as vibrations and would need to avoid
moderate exposure to excessive loud noise
such as traffic or jackhammer noise . . . and
hazards such as moving machinery and
unprotected heights. The individual can do
simple, routine tasks but no complex tasks
and should work in a low stress environment
defined as occasional decision making and
occasional changes in the work setting. The
individual further would need to have
occasional interaction with co-workers and
supervisors and no interaction with the
public.
(R. 90.)

The VE testified that such an individual could not

perform any of Plaintiff’s past work.

(Id.)

The VE further

testified that other jobs existed in significant numbers in the
national economy that the hypothetical individual could perform,
identifying “weighers, checkers and measures,” administrative
support worker, and production helper by way of example.

(R. 91.)

When asked by Plaintiff’s representative if the hypothetical
individual were to consistently miss two days per month whether
there would be jobs that individual could perform, the VE responded
that there would not be.

(R. 100-01.)

16

4.

ALJ Decision
By decision of April 25, 2014, ALJ Wolfe determined that

Plaintiff was not disabled as defined in the Social Security Act
from September 28, 2012, through October 14, 2014, the date of the
decision.

(R. 27-28.)

She made the following findings of fact and

conclusions of law:
1.

The claimant meets the insured status
requirements of the Social Security Act
through December 31, 2018.

2.

The claimant has not engaged in
substantial gainful activity since
September 28, 2012, the alleged onset
date (20 CFR 404.1571 et seq).

3.

The claimant has the following severe
impairments: fibromyalgia, carpal tunnel
syndrome, obesity, migraine headaches,
post-traumatic stress disorder (PTSD),
panic disorder, anxiety disorder, an
major depressive disorder/depression (20
CFR 404.1520(c)).

4.

The claimant does not have an impairment
or combination of impairments that meets
or medically equals the severity of one
of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform light
work as defined in 20 CFR 404.1567(b)
except she can occasionally balance,
stoop, crouch, crawl, kneel, and climb,
but she can never climb on ladders,
ropes, and scaffolding. The claimant
can frequently push/pull with the upper
extremities and lower extremities. She
17

can frequently perform gross and fine
manipulation. The claimant must avoid
concentrated exposure to temperature
extremes of cold/heat, wetness,
humidity, fumes, odors, dust, gases,
poor ventilation, vibrations, and avoid
moderate exposure to excessive loud
noise such as traffic or jackhammer
noise and hazards including moving
machinery and unprotected heights. She
can do simple, routine tasks, but no
complex tasks and she should work in a
low stress environment defined as
occasional decision-making and
occasional changes in the work setting.
The claimant can have occasional
interaction with co-workers and
supervisors and no interaction with the
public.
6.

The claimant is unable to perform any
past relevant work (20 CFR 404.1565).

7.

The claimant was born on September 9,
1971 and was 41 years old, which is
defined as a younger individual age 1849, on the alleged disability onset date
(20 CFR 404.1563).

8.

The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564).

9.

Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports
a finding that the claimant is “not
disabled,” whether or not the claimant
has transferable job skills (see SSR 8241 and 20 CFR Part 404, Subpart P,
Appendix 2).

10.

Considering the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
18

perform (20 CFR 404.1569 and
404.1569(a)).
11.

(R. 13-27.)

The claimant has not been under a
disability, as defined in the Social
Security Act, from September 28, 2012,
through the date of this decision (20
CFR 404.1520(g)).

ALJ Wolfe thoroughly reviewed the medical evidence (R.

16-22) and noted that there did not appear to be any medical
treatment from about March 2010 to January 2013 or, in the
alternative, no records were submitted for this period of time.
(R. 17.)

The ALJ’s review began with pre-alleged onset date

records beginning in November 2009.

(R. 16.)

After extensively reviewing Plaintiff’s statements about her
activities and the limiting effects of her impairments, the ALJ
determined that Plaintiff was not entirely credible, finding the
objective medical evidence did not support the degree of limitation
alleged and citing specific bases for the credibility
determination.

(R. 22-25.)

The ALJ reviewed opinion evidence including the Veterans
Administration disability rating, the Third Party Function Report
completed by Plaintiff’s husband and the opinions of Doctors Jones,
Cole and Hardaway.

(R. 26-27.)

The ALJ gave some weight to the VA

opinion contained in correspondence dated May 12, 2014, which
indicated that Plaintiff had a seventy percent disability rating
and got one hundred percent benefits, noting that as of May 2011
Plaintiff had fifty percent disability due to PTSD and forty
19

percent due to fibromyalgia but she continued to work after May
2011, i.e., until September 2012.

(R. 25.)

The ALJ also noted

that Social Security and VA disability standards differ.

(Id.)

She gave little weight to Plaintiff’s husband’s opinion because of
the relationship and because he is not an acceptable medical
source.

(Id.)

ALJ Wolfe gave little weight to Dr. Jones’ opinion

because she did not find any objective functional limitations and
there was not evidence for the lack of limitations related to
standing, sitting and walking given Plaintiff’s history of
fibromyalgia.

(R. 25.)

For the most part the ALJ gave great

weight to Dr. Andrew Cole’s opinion based on his psychiatric
evaluation of Plaintiff on June 13, 2014.

(Id.)

The ALJ gave some

weight to Dr. Hardaway’s RFC findings but noted that Plaintiff was
more limited in her ability to climb ladders, ropes, and scaffolds
given her history of fibromyalgia and his opinion was generally
supported by rather benign findings in his own examination.
26.)

(R.

ALJ Wolfe also considered the January 10, 2013, GAF score of

51 assigned by VA Licensed Social Worker Frances Yohannan,
concluding it showed no more than moderate limitations in
Plaintiff’s overall functioning but it is a subjective score based
on Plaintiff’s subjective complaints.

(Id.)

The ALJ noted that she took into account Plaintiff’s credibly
established limitations in determining her RFC.

(R. 16.)

Consistent with the testimony of the VE, the ALJ found

20

Plaintiff could not perform her past relevant work.

(R. 26.)

With

the assistance of the VE, the ALJ concluded that Plaintiff was able
to perform other jobs which exist in the national economy.

(R. 26-

27.)
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.1

It is necessary for the

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment

1

“Disability” is defined 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 that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work
experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
21

together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found that Plaintiff was
capable of performing work that existed in significant numbers in
the national economy.

(R. 26-27.)
III. Standard of Review

This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to

22

support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.

Substantial evidence

It 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); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative exhibits,

23

“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp v.

“There is no requirement

that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).

Hur v. Barnhart, 94 F. App’x 130, 133 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

24

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

See, e.g., Albury v.

Commissioner of Social Security, 116 F. App’x 328, 330 (3d Cir.
2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d
112 (3d Cir. 2000) (“[O]ur primary concern has always been the
ability to conduct meaningful judicial review.”).

An ALJ’s

decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).

It is the

ALJ’s responsibility to explicitly provide reasons for his decision
and analysis later provided by the defendant cannot make up for
analysis lacking in the ALJ’s decision.

Fargnoli v. Massanari, 247

F.3d 34, 42, 44 n.7 (3d Cir. 2001); Dobrowolsky, 606 F.2d at 40607.

Neither the reviewing court nor the defendant “may create or

25

adopt post-hoc rationalizations to support the ALJ’s decision that
are not apparent from the ALJ’s decision itself.”

Hague v. Astrue,

482 F.3d 1205, 1207-08 (10th Cir. 2007); see also Motor Vehicle
Mfrs. Ass’n of U.S. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,
50 (1983) (citations omitted) (“It is well-established that an
agency’s action must be upheld, if at all, on the basis articulated
by the agency itself.”)
IV. Discussion
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.

See Dobrowolsky,

Social Security proceedings are not strictly

adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.

Id.

“These

proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
II, of the Social Security Act.”

Hess v. Secretary of Health,

Education and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974).

As such,

the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence.
F.2d at 406.

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases
26

demonstrate that, consistent with the legislative purpose, courts
have mandated that leniency be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it be
strictly construed.”
B.

Id.

Plaintiff’s Alleged Errors
As set out above, Plaintiff asserts that the case should be

remanded for further administrative proceedings based on the
following errors: 1) the ALJ’s discussion of Plaintiff’s Veterans
Administration disability rating was insufficient; 2) the ALJ did
not address the work-related limitations caused by Plaintiff’s
migraine headaches; 3) the ALJ did not properly evaluate the
medical opinion of the Agency’s examining consultant Alfred
Hardaway, M.D.; 4) the ALJ erred when he failed to assess
Plaintiff’s credibility in light of her work history; and 5)
because the RFC does not accurately set out all of Plaintiff’s
individual impairments and limitations, the ALJ did not meet her
step five burden of showing that Plaintiff can perform other work.
(Doc. 14 at 2, 15.)
1.

Veterans Administration Disability Rating
Plaintiff asserts that the ALJ improperly discounted the VA

disability rating because she cited only the 2011 lower disability
rating without discussing the May 2014 notice which increased
benefits to 100% and the other reasons provided by the ALJ are
without merit.

(Doc. 14 at 4-6.)

27

We disagree.

In Kane v. Heckler, 776 F.3d 1130 (3d Cir. 1985), the Third
Circuit Court of Appeals stated that the ALJ should have considered
the importance of a Veterans Administration determination that the
plaintiff was disabled because “[s]uch a determination by another
government agency is entitled to substantial weight.”

Id. at 1135

(citing Lewis v. Califano, 616 F.2d 73, 76 (3d Cir. 1980)).

20

C.F.R. § 404.1504 addresses disability determinations by other
organizations or agencies:
A decision by any nongovernmental agency or
any other governmental agency about whether
you are disabled or blind is based on its
rules and is not our decision about whether
you are disabled or blind. We must make a
disability or blindness determination based
on social security law. Therefore, a
determination made by another agency . . . is
not binding on us.
Id.

Pursuant to SSR 06-03p, the ALJ is “required to evaluate all

the evidence in the case record that may have a bearing on [her]
determination or decision of disability, including decisions by
other governmental and nongovernmental agencies.”

SSR 06-03p, 2006

WL 2329939, at *6 (S.S.A.).
Here the ALJ considered the VA’s disability determination and
cited reasons why she afforded it only “some weight.”

(R. 25.)

Contrary to Plaintiff’s assertion, the ALJ did not cite only an
earlier lower disability rating.

(See Doc. 14 at 4.)

Rather, the

ALJ cited to the May 12, 2014, Department of Veterans Affairs
correspondence in which Plaintiff was found to a 70% disability

28

rating and was being paid at the 100% rate.
(R. 143-45)).)

(R. 25 (citing Ex. 2D

Plaintiff takes issue with the ALJ’s notation that

Plaintiff worked until September 2012 though she was found in May
2011 to be 50% disabled due to PTSD and 40% disabled due to
fibromyalgia.
this basis.

(See Doc. 14 at 5.)

We find no reversible error on

The ALJ’s decision clearly states that she considered

the VA’s 100% benefits award.

(See R. 25.)

It is also true that

the VA found that Plaintiff’s fibromyalgia and PTSD were found to
have worsened effective May 27, 2011, and this was the basis for
the award of a higher percentage.

(R. 145.)

Thus the ALJ did not

improperly note that Plaintiff worked past the date when these
conditions were found to have worsened.

Finally, Plaintiff

recognizes her argument in her supporting brief that “individual
unemployability” in the VA consideration and SSA disability as
“identical” was not an accurate portrayal of the standards.
16 at 3.)

(Doc.

For all of these reasons, we find Plaintiff’s first

claimed error does not provide a basis for remand.
2.

Migraine Headaches
Plaintiff next claims error based on the ALJ’s consideration

of her migraine headaches because no related limitations are
addressed in the her RFC finding.

(Doc. 14 at 6.)

We conclude

that the ALJ’s consideration of Plaintiff’s migraine headache
impairment is cause for remand.
The ALJ found Plaintiff’s migraine headaches to be a severe

29

impairment during the relevant time period, i.e, from September
2012 to October 2014.

(R. 13.)

Plaintiff described her headaches

to Dr. Jones and Dr. Hardaway in January 2013 and June 2014 stating
that she gets two migraines a week of variable severity.
334.)

(R. 281.

She testified about their severity and limiting effects at

the ALJ hearing on September 23, 2014, including the fact that they
are not always helped by medication and can be incapacitating.
64, 77-78.)

(R.

The ALJ acknowledged that Plaintiff testified that

even with medication she continued to get headaches one to two days
a week and when she has a migraine she goes to bed with light
blacked out and no noise.

(R. 23.)

In providing the reasons for

discounting Plaintiff’s credibility, the ALJ noted that Plaintiff
“complained of significant headaches in 2009-2010, but the
complaints decreased significantly once she was prescribed
Imitrex.”

(R. 25.)

Other than acknowledging Plaintiff’s testimony

in her review of evidence, the ALJ does not discuss any evidence
related to Plaintiff’s headaches during the relevant time period,
nor does she provide a reason for not doing so.

Thus, the ALJ does

not provide a reason for discounting the limiting effects asserted
by Plaintiff–-effects which if credited may preclude Plaintiff from
competitive employment as per the VE’s testimony.

(See R. 100-01.)

While there may be many bases to discount the effects of
Plaintiff’s headaches on her ability to work (some of which are
suggested by Defendant (Doc. 15 at 22)), none of these are

30

addressed by the ALJ in a generally very thorough decision.

We

hesitate to remand on this basis but find it necessary to do so
because neither Defendant nor the Court can do what the ALJ should
have done–-we cannot provide post hoc reasons for supporting the
ALJ’s decision.

It is the ALJ’s responsibility to explicitly

provide reasons for her decision and the analysis later provided by
Defendant cannot make up for the analysis lacking in the ALJ’s
decision.
07.

Fargnoli, 247 F.3d at 42; Dobrowolsky, 606 F.2d at 406-

Therefore, upon remand the ALJ must more thoroughly articulate

her consideration of Plaintiff’s migraine headaches and the effects
the symptoms may have on her ability to work.
3.

Evaluation of Hardaway Opinion
Plaintiff asserts the ALJ improperly evaluated Dr. Hardaway’s

opinion in that she did not address Dr. Hardaway’s limitation that
Plaintiff should not travel without a companion for assistance.
(Doc. 14 at 9-10.)

While this claimed error would not be cause for

remand on its own, because we have determined remand is required,
the ALJ is requested to address the omission of Dr. Hardaway’s
finding regarding travel.
4.

Plaintiff’s Credibility
Plaintiff next claims the ALJ erred when she did not assess

Plaintiff’s credibility in light of her military service and work
history.

(Doc. 14 at 12.)

We disagree.

As noted by both parties, an ALJ’s credibility findings are

31

due great deference.

(Doc. 12 at 14; Doc. 15 at 23-24.)

Plaintiff

cites SSR 96-8p for the proposition that an adjudicator must
consider a claimant’s strong work history when evaluating
credibility and the ALJ fails to discuss Plaintiff’s “stellar work
history” prior to her disability onset.

(Doc. 14 at 12.)

Plaintiff also cites Dobrowolsky, 606 F.2d 403, for the proposition
that “a long and continuous past work record with no evidence of
malingering is a factor supporting credibility of assertions of
disabling impairments.”

(Doc. 14 at 13.)

We do not discount the authority relied upon by Plaintiff and
do not minimize Plaintiff’s military service and work history.
However, in the circumstances of this case, certain evidence
offsets what Plaintiff describes as her “stellar work history.”

As

noted by the ALJ, Plaintiff wanted a note from her doctor that she
could not work in 2009, but he would not give her one.

(R. 25.)

Plaintiff’s request occurred at a time when Plaintiff was
unemployed but devising employment strategies with a VA caseworker,
was applying for jobs, and was expressing a desire to go back to
work and/or school.2

(R. 513, 518, 519, 546, 638-39, 647.)

ALJ also noted that Plaintiff continued to work until 2012.
25.)

The
(R.

Thus, in the circumstances of this case, the cited authority

2

Significantly, as Defendant notes, from September 2006
until September 2012, Plaintiff worked four jobs but for no more
than eight months at a time and with significant gaps between
positions. (Doc. 15 at 24 (citing R. 162).)
32

does not suggest the ALJ should have discussed Plaintiff’s work
history.
5.

Step Five Determination
Finally, Plaintiff asserts the ALJ did not meet her step five

burden of showing that Plaintiff can perform other work.
at 14.)

(Doc. 14

Because we have found that this matter must be remanded

for further consideration of Plaintiff’s migraine headache
impairment, and because such consideration will involve and/or
clarify the ALJ’s step five finding, further discussion of this
issue is not warranted.
V. Conclusion
For the reasons discussed above, we conclude Plaintiff’s
appeal is properly granted.

This matter is remanded to the Acting

Commissioner for further consideration consistent with this
opinion.

An appropriate Order is filed simultaneously with this

Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: July 30, 2015

33