Sykes v. Commissioner of Social Security et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes the ALJs credibility and RFC findings are not supported by substantial evidence. Therefore, Plaintiffs appeal of the Acting Commissioners decis ion is properly granted and 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 3/2/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DON WILLIAM SYKES,

:
:CIVIL ACTION NO. 3:16-CV-1400
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,1
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act and Social Security
Income (“SSI”) under Title XVI.

(Doc. 1.)

disability beginning on March 2, 2004.

He originally alleged

(R. 12.)

The

Administrative Law Judge (“ALJ”) who evaluated the claim, Michelle
Wolfe, concluded in her October 7, 2014, decision that Plaintiff’s
severe impairments of headaches/migraines status postconcussion/post-concussion syndrome, cervicalgia, and, as of June

1

Nancy A. Berryhill is now the Acting Commissioner of Social
Security. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure which addresses the substitution of parties when a public
officer is replaced, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this
suit. Fed. R. Civ. P. 25(d). No further action needs to be taken
to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. § 405(g), which states
that “[a]ny action instituted in accordance with this subsection
shall survive notwithstanding any change in the person occupying
the office of Commissioner of Social Security or any vacancy in
such office.”

2014, seizure disorder did not alone or in combination meet or
equal a listed impairment.

(R. 15-17.)

She also found that

Plaintiff had the residual functional capacity (“RFC”) to perform
light work with certain nonexertional limitations and that he was
capable of performing jobs that existed in significant numbers in
the national economy.

(R. 18-26.)

ALJ Wolfe therefore found

Plaintiff was not disabled during the relevant time period.

(R.

26.)
With this action, Plaintiff asserts that the Acting
Commissioner’s decision should be reversed for the following
reasons: 1) the ALJ erred in assessing Plaintiff’s RFC; and 2) the
ALJ erred in failing to give proper weight to Plaintiff’s
testimony.

(Doc. 11 at 3.)

After careful review of the record and

the parties’ filings, the Court concludes this appeal is properly
granted.
I. Background
A.

Procedural Background
Plaintiff protectively filed for DIB and SSI on April 26,

2013.

(R. 12.)

The claims were initially denied on August 13,

2013, and Plaintiff filed a request for a hearing before an ALJ on
September 17, 2013.

(Id.)

Following the hearing, the ALJ issued

her unfavorable decision on October 7, 2014, finding that Plaintiff
was not disabled under the Social Security Act during the relevant

2

time period.2

(R. 26.)

On May 10, 2016, the Appeals Council

denied Plaintiff’s request for review of the ALJ’s decision.
1-6.)

(R.

In doing so, the ALJ’s decision became the decision of the

Acting Commissioner.

(R. 1.)

In the denial, the Appeals Council

noted that it had reviewed new information submitted but the new
evidence did not provide a basis for changing the ALJ’s decision.3
(R. 2.)

Plaintiff was advised that if she wanted consideration of

whether she was disabled after May 23, 2014, she would need to
submit a new application for benefits.

(R. 2.)

On July 7, 2016, Plaintiff filed his action in this Court
appealing the Acting Commissioner’s decision.

(Doc. 1.)

Defendant

filed her answer and the Social Security Administration transcript
on September 6, 2016.

(Docs. 9, 10.)

supporting brief on October 21, 2016.
her brief on April 18, 2016.

Plaintiff filed his
(Doc. 11.)

(Doc. 12.)

Defendant filed

Plaintiff did not file a

reply brief and the time for doing so has passed.

Therefore, this

2

ALJ Wolfe explained that res judicata barred consideration
of the period of time through October 24, 2008, based on the
unfavorable decision of the ALJ regarding Plaintiff’s previously
filed applications. (R. 12.) She also explained that, although
Plaintiff’s attorney amended the onset date to March 2009 at the
hearing and alleged that Plaintiff was disabled prior to his date
last insured of March 31, 2009, no exact date was presented for an
amended onset date to consider, so the decision considered the
original onset date of March 2004 to the date of the decision. (R.
12.)
3

The Appeals Council Exhibit List indicates that medical
evidence dated November 4, 2014, from William Mattiace, M.D.,
consisting of one page, was submitted. (R. 4; see R. 591.)
3

matter is fully briefed and ripe for disposition.
B.

Factual Background
Plaintiff was born on January 2, 1965, and has a GED.

176; Doc. 11 at 2.)

He has past relevant work as a furniture mover

and furniture refinisher/refurbisher.
1.

(R. 25,

(R. 25.)

Impairment Evidence
In his Statement of the Case, Plaintiff provides a general

reference to the records of William Mattiace, M.D., stating that
the cited records “well document the problems with respect to
migraine headaches.”
and 13F).)

(Doc. 11 at 2 (citing Exhibits 6F, 11F, 12F

Plaintiff adds that Dr. Mattiace “confirms the

inability to work when having a headache that Plaintiff testified
to at the hearing.

See Exhibit 13F wherein Dr. Mattiace states:

‘he gets daily severe migraine headaches when in the throes of such
a headache has is incapable of sedentary work.’” (Id. (quoting
Exhibit 13F [R. 591]).)
(Id.)

This record is dated November 4, 2014.

Plaintiff’s arguments do not contain any citation to the

record.

(See Doc. 11 at 3-6.)

ALJ Wolfe provides an extensive review of evidence in her
Decision.

(R. 19-24.)

Defendant adopts the facts stated in the

ALJ’s Decision and highlights certain evidence in her brief (Doc.
12 at 5, 9-12).

In the absence of any summary of evidence from

Plaintiff, the Court will repeat excerpts from Defendant’s
recitation relevant to Plaintiff’s alleged errors and provide
4

additional background evidence related to Plaintiff’s headache
impairment.
Records indicate that Plaintiff suffered from migraine
headaches from the time he was a child.

(R. 495.)

He had

headaches a few times a week after an automobile accident in 2004,
but by April 2009 he reported chronic daily migraine headaches.
(R. 495, 499.)

He was regularly followed by his primary care

provider and at the Geisinger Neurology Clinic where his headaches
were reported to be occurring on a daily basis in November 2011.
(R. 369.)
As noted by Defendant,
Plaintiff reported that the medication Relpax
effectively managed his pain (Tr. 368, 388,
473, 528, 537); that cervical Botox provided
20% pain relief for six months (Tr. 452,
528); and that using a “cold pack” over his
forehead helped his symptoms (Tr. 528).
During a May 2009 medical appointment (a
preoperative visit for laparascopic surgery
to remove a renal mass), Plaintiff reported
that he was feeling “good;” he denied acute
health concerns; he identified his typical
daily activity as walking daily for 30-60
minutes; and he said he could walk up two
flights of stairs or climb a steep hill
without becoming short of breath (Tr. 19,
206).
Despite his ongoing migraine headache
complaints, Plaintiff routinely exhibited
normal physical examination findings (Tr. 1920). . . .
Records from the Interventional Pain
Center also revealed normal examination
findings (Tr. 20).
5

(Doc. 12 at 9-10.)
More specifically, Plaintiff was followed regularly by William
J. Mattiace, M.D., his primary care doctor, and also by Geisinger
Neurology Department providers, including John P. Carlson, M.D.

At

his August 2008 visit with Dr. Mattiace, Plaintiff reported that he
usually got a headache if he missed a dose of Relpax.

(R. 487.)

On August 11, 2011, Plaintiff reported to Dr. Mattiace that he was
taking one or two Relpax per day for his migraines.

(R. 480.)

On

August 30, 2011, Plaintiff reported to Geisinger PA Michelle Yasick
that he rarely took only one Relpax for relief of migraine and
stated that he could not function without it because his headaches
become so severe that he could not work or resume activities of
daily living.

(R. 360.)

Ms. Yasick recorded “[h]e reports

‘migraines have ruined my life and my job.’

He states that he is

self employed but because of the renal CA and migraines he cannot
work full time.”

(Id.)

On September 12, 2011, Plaintiff told Dr.

Mattiace that his insurance reimbursement ran out and Dr. Mattiace
noted “they are going to stop paying for his Relpax.
Unfortunately, he has needed to take either one or two Relpax on a
daily basis.

He has been doing that for years.”

(R. 479.)

Dr.

Mattiace further noted that Geisinger was going to write a letter
to Medical Assistance to try to get the Relpax covered and Dr.
Mattiace said he was willing to send a letter also, noting that
“all other remedies have been tried and failed.”

6

(R. 479.)

The

need for Relpax and lack of coverage for an adequate amount was
repeated in October 31, 2011, office notes–-Dr. Mattiace noted that
Relpax was “[t]he only thing that seems to keep life livable for
him.”

(R. 478.)

On November 29, 2011, Dr. Carlson noted that Plaintiff
reported having a headache every day, Relpax was the only thing
that worked for him and his insurance company would only pay for
six tablets where he needed as many as thirty-six tablets per
month.

(R. 369-70.)

He opined that Plaintiff was “totally,

permanently, and completely disabled from work.”

(R. 369.)

In a

letter to Plaintiff which was intended to be forwarded to the
insurance company, Dr. Carlson noted that thirty-six tablets a
month “would give you good headache control and function more
normally.”

(R. 370.)

Requests for additional Relpax do not appear

to have been successful in that September 2012 records indicate
Plaintiff’s insurance was providing six Relpax per month.
474.)

(R.

Records also indicate that Dr. Carlson, and later Dr.

Mattiace, provided an additional thirty-six Relpax every six
months.

(R. 537.)

Geisinger Interventional Pain Center records from July 2012
indicate that Plaintiff reported to CRNP Nichole Harmon that he got
a headache/migraine daily; the pain seemed to take over his entire
head; he had neck pain with the migraine; the pain was throbbing,
stabbing, and pounding; the pain ranged from 1/10 to 10/10 in

7

severity and it waxed and waned; the migraines were unpredictable
though he had made multiple attempts to localize triggers; and the
pain was associated with nausea/vomiting and light sensitivity.
(R. 388.)

Jolly L. Ombao, M.D., assessed Plaintiff to have

“[c]hronic migraines which have not responded to previous
medications.”

(R. 387.)

He administered botox injections as a

diagnostic and therapeutic intervention.

(Id.)

At his visit with

Dr. Ombao on March 5, 2013, Plaintiff reported that his headaches
were in the fronto-temporal region and they occurred daily with
auras at times.

(R. 453.)

Dr. Ombao noted that the July 2012

botox injections gave six months of twenty percent pain relief but
Plaintiff still had daily migraines after the botox.

(Id.)

His

assesment was “[c]hronic intractable migraines which have not
responded to previous medications or botox.”

(Id.)

He added a

medication to Plaintiff’s regimen and encouraged Plaintiff to
pursue cognitive behavioral therapy and relaxation methods.

(Id.)

On March 13, 2013, Dr. Mattiace noted “[b]etween the Relpax
and the hydrocodone, his life is tolerable.”

(R. 473.)

Irfan A. Jafree, M.D., assessed “[h]eadaches medically
refractory migraines” at a January 8, 2014, Geisinger Neurology
consultation.

(R. 556.)

He noted that Plaintiff’s typical

headaches were “center of head, throbbing, photophobia,
phonophobia, nausea.
any time of day.”

Wakes up with them at times and could happen

(R. 554.)

He also noted that Plaintiff had

8

tried “multiple medication including botox and the results were
sub-satisfactory.”
medication regimen.

(Id.)

Dr. Jafree planned a different

(R. 556.)

In March 2014, Dr. Mattiace noted that Plaintiff’s migraines
were about the same and “overall” he was “doing reasonably well.”
(R. 534.)

Dr. Mattiace further commented that “things have been

fairly stable for a number of years now.”

(R. 534.)

In July 2014,

Dr. Mattiace noted that Plaintiff’s headaches had been “about the
same” and he would continue to manage them with Relpax and PRN
hydrocodone.

(R. 536.)

In August 2014, Dr. Mattiace recorded that

Plaintiff was using six Relpax per month, Dr. Carlson had given him
thirty-six at a time to last six months, that worked out
“reasonably well,” Dr. Mattiace planned to continue to provide the
Relpax as Dr. Carlson had, and Plaintiff would continue to follow
up with the Geisinger neurologist.
2.

(R. 537.)

Hearing Testimony4
At the September 23, 2014, hearing, Plaintiff testified that

before his 2004 auto accident, he got migraines three to four times
a week but after the accident he got them daily.

(R. 38.)

He said

he was usually home because of the migraines and engaged in almost
no activities in part because of them.

(R. 35, 41-42.)

Plaintiff

stated that he had not worked anywhere since the 2004 accident and,

4

Because the claimed errors relate to the ALJ’s consideration
of Plaintiff’s migraine headaches, the Court focuses on testimony
regarding Plaintiff’s headache pain.
9

when he was self-employed as a licensed private detective, there
were lots of periods where he was unable to work because of the
migraines.

(R. 42, 46-47.)

Plaintiff testified that he was taking Relpax for his
migraines and he needed to take two “to get rid of it for a number
of hours.”

(R. 44-45.)

He also said his insurance would only pay

for six pills a month so the medication only covered three
migraines a month.

(R. 45.)

When the ALJ asked what he did for

the rest of the month, Plaintiff responded that he stayed in bed
and just had to wait for the migraine to subside.

(Id.)

He

testified that he continued to see Dr. Mattiase regularly and was
seeing a new neurologist and hoped to find medications that would
work better.
3.

(Id.)

ALJ Decision
In her October 7, 2014, Decision, ALJ Wolfe set out the

following Findings of Fact and Conclusions of Law:
1.

The claimant meets the insured status
requirements of the Social Security Act
through March 31, 2009.

2.

The claimant has not engaged in
substantial gainful activity since March
2, 2004, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe
impairments: as of July 6, 2008 his
severe impairments are
headaches/migraines status postconcussion/post-concussion syndrome,
cervicalgia; as of June 2014 seizure
disorder (20 CFR 404.1520(c) and
10

416.920(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, 404.1526,
416.920(d), 416.925 and 416.926).

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)
and 416.967(b). The claimant can
occasionally balance, stoop, crouch,
crawl, kneel and climb but never on
ladders, ropes or scaffolds. He must
avoid concentrated exposure to
temperature extremes of cold/heat,
humidity, excessive loud noise such as
jackhammer and traffic noise,
vibrations, fumes, odors, dusts, gases
and poor ventilation. He must avoid
moderate exposure to hazards such as
moving machinery and unprotected
heights.

6.

The claimant is unable to perform any
past relevant work (20 CFR 404.1565 and
416.965).

7.

The claimant was born on January 2, 1965
and was 39 years old, which is defined
as a younger individual age 18-49, on
the alleged disability onset date (20
CFR 404.1563 and 416.963).

8.

The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

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
11

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
perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).

11.

The claimant has not been under a
disability, as defined in the Social
Security Act, from March 2, 2004,
through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).

(R. 15-26.)
Other relevant portions of the Decision will be referenced in
the Discussion section of this Memorandum.
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.5

It is necessary for the

5

“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 than 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
12

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
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

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).
13

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 step
five of the sequential evaluation process when the ALJ found that
Plaintiff could perform jobs which existed in significant numbers
in the national economy.

(R. 25-26.)

III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
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
14

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.
Kent, 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,
“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
15

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. Comm’f of

Soc. Sec., 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.

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.

Albury v. Comm’r of Soc.

Sec., 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
16

meaningful judicial review.”); see also Rutherford v. Barnhart, 399
F.3d 546, 553 (3d Cir. 2005) (a remand is not required where it
would not affect the outcome of the case.).

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).
IV. Discussion
Plaintiff asserts that the Acting Commissioner’s decision
should be reversed for the following reasons: 1) the ALJ erred in
assessing Plaintiff’s RFC; and 2) the ALJ erred in failing to give
proper weight to Plaintiff’s testimony.

(Doc. 11 at 3.)

Despite

the inadequate development of these arguments in Plaintiff’s brief,
the Court will review the issues raised given the remedial nature
of the Social Security Act, Dobrowolsky, 606 F.2d at 406.

Because

the claimed error regarding Plaintiff’s testimony relates to the
ALJ’s RFC assessment, the Court will address the specific error
before turning to the general RFC issue.
A.

Subjective Complaints
Plaintiff contends the ALJ erred in not crediting his

subjective complaints and limitations, specifically his testimony
that he has daily migraine headaches.

(Doc. 11 at 4.)

Defendant

responds “the ALJ comprehensively discussed Plaintiff’s
longitudinal treatment history, his benign examination and
diagnostic findings, his favorable response to headache medication,
17

and the various medical opinions in the record stating he retained
work-related abilities.”

(Doc. 12 at 17 (citing R. 18-24).)

The

Court concludes the ALJ did not properly consider evidence of
record regarding Plaintiff’s pain related to his migraine
headaches.

Because the Court cannot conclude that this error is

harmless, remand for further consideration is warranted.
The Third Circuit Court of Appeals has stated that “[w]e
‘ordinarily defer to an ALJ’s credibility determination because he
or she has the opportunity at a hearing to assess a witness’s
demeanor.’”

Coleman v. Commissioner of Social Security, 440 F.

App’x 252, 253 (3d Cir. 2012) (not precedential) (quoting Reefer v.
Barnhart, 326 F.3d 376, 380 (3d Cir. 2003)).

“Credibility

determinations are the province of the ALJ and should only be
disturbed on review if not supported by substantial evidence.”
Pysher v. Apfel, Civ. A. No. 00-1309, 2001 WL 793305, at *3 (E.D.
Pa. July 11, 2001) (citing Van Horn v. Schwieker, 717 F.2d 871, 873
(3d Cir. 1983)).
The Social Security Regulations provide a framework within
which a claimant’s subjective complaints are to be considered.
C.F.R. §§ 404.1529, 416.929.

20

First, symptoms such as pain,

shortness of breath, and fatigue will only be considered to affect
a claimant’s ability to perform work activities if such symptoms
result from an underlying physical or mental impairment that has
been demonstrated to exist by medical signs or laboratory findings.

18

20 C.F.R. §§ 404.1529(b), 416.929(b).

Once a medically

determinable impairment which results in such symptoms is found to
exist, the Commissioner must evaluate the intensity and persistence
of such symptoms to determine their impact on the claimant’s
ability to work.

Id.

In so doing, the medical evidence of record

is considered along with the claimant’s statements.

Id.

At the time of the ALJ Decision in this case, Social Security
Ruling 96-7p provided guidance regarding the evaluation of a
claimant’s statements about his or her symptoms:6

6

SSR 96-7p was superseded by SSR 16-3p effective March 16,
2016. SSR 16-3p, 2016 WL 1119029, at *1 (S.S.A.). SSR 16-3p
eliminates the word “credibility” from the sub-regulatory policy
because the regulations do not use the term. Id. The Seventh
Circuit explained the change in Cole v. Colvin, 831 F.3d 411, 412
(7th Cir. 2016):
Recently the Social Security Administration
announced that it would no longer assess the
“credibility” of an applicant’s statements,
but would instead focus on determining the
“intensity and persistence of [the
applicant’s] symptoms.” . . . The change in
wording is meant to clarify that
administrative law judges aren’t in the
business of impeaching claimants’ character;
obviously administrative law judges will
continue to assess the credibility of pain
assertions by applicants, especially as such
assertions often cannot be either credited or
rejected on the basis of medical evidence.
Id. Substantively, SSR 16-3p’s guidance concerning the evaluation
of subjective symptoms in disability claims is largely consistent
with the policies set out in SSR 96-7p regarding the assessment of
the credibility of an individual’s statements. See, e.g.,
Sponheimer v. Comm’r of Soc. Sec., Civ. No. 15-4180, 2016 WL
4743630, at *6 n.2 (D.N.J. Sept. 8, 2016). In this case, ALJ Wolfe
issued her Decision prior to the effective date of SSR 16-3p so her
19

In general, the extent to which an
individual's statements about symptoms can be
relied upon as probative evidence in
determining whether the individual is
disabled depends on the credibility of the
statements. In basic terms, the credibility
of an individual's statements about pain or
other symptoms and their functional effects
is the degree to which the statements can be
believed and accepted as true. When
evaluating the credibility of an individual's
statements, the adjudicator must consider the
entire case record and give specific reasons
for the weight given to the individual's
statements.
SSR 96-7p, 1996 WL 374186, at *4 (S.S.A.).

The ruling adds that

“[o]ne strong indication of the credibility of an individual’s
statements is their consistency, both internally and with other
information in the case record.”

SSR 96-7p, 1996 WL 374186, at *5.

The Third Circuit has explained:
An ALJ must give serious consideration
to a claimant’s subjective complaints of
pain, even where those complaints are not
supported by objective evidence. Ferguson v.
Schweiker, 765 F.2d 31, 37 (3d Cir. 1985).
“While there must be objective evidence of
some condition that could reasonably produce
pain, there need not be objective evidence of
the pain itself.” Green [v. Schweiker, 749
F.2d 1066, 1071 (3d Cir. 1984)]. Where
medical evidence does support a claimant’s
complaints of pain, the complaints should
then be given “great weight” and may not be
disregarded unless there exists contradictory
medical evidence. Carter [v. Railroad
Retirement Bd., 834 F.2d 62, 65 (3d Cir.
1987)]; Ferguson, 765 F.2d at 37.

obligation was to follow the guidance set out in SSR 96-7p.
Therefore, the Court references the standards set out in SSR 96-7p
in this Memorandum.
20

Mason v. Shalala, 994 F.2d 1058, 1067-68 (3d Cir. 1993).
The regulations and relevant rulings set out factors which are
considered relevant to symptoms such as pain: 1) activities of
daily living; 2) the location, duration, frequency and intensity of
the pain or other symptoms; 3) precipitating and aggravating
factors; 4) the type, dosage, effectiveness and side effects of
medications taken to alleviate symptoms; 5) treatment received
other than medication intended to relieve pain or other symptoms;
6) other measures used for pain/symptom relief; and 7) other
factors concerning functional limitations and restrictions due to
pain or other symptoms.

20 C.F.R. §§ 404.1529(c)(3)(i-vii),

416.929(c)(3)(i-vii); SSR 96-7, 1996 WL 374186, at *3; SSR 16-3p,
2016 WL 1119029, at *7.
Here, the ALJ found that Plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged
symptoms but “the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained in this decision.”

(R. 18-19.)

The Court’s review of the record does not find such an explanation.
(See R. 18-24.)
Regarding the headache pain at issue in this action, the ALJ
recognized that Plaintiff had the severe impairment of
headaches/migraine status post-concussion/post-concussion syndrome.
(R. 15)

Her extensive review of evidence referenced Plaintiff’s

21

complaints of headache pain numerous times, including: complaints
to his neurologist, John P. Carlson, M.D.; he was being followed
for his migraines by William J. Mattiace, M.D.; he received botox
injections to treat his headaches at the Inteventional Pain Center;
he had seen another neurologist, Irfan A. Jafree, M.D., for
complaints of headache; and a 2009 MRI of the brain conducted in
part due to complaints of worsening headaches and to rule out an
intracranial mass was normal.

(R. 19-22.)

ALJ Wolfe’s only discussion of the pain associated with
Plaintiff’s headaches is found in her consideration of Dr.
Carlson’s opinion that Plaintiff was “totally, permanently, and
completely disabled from work.”
369]).)

(R. 24 (citing Exhibit B5F/96 [R.

ALJ Wolfe gave the opinion little weight because it was

“based primarily on the claimant’s subjective complaints” and the
opinion was
purely conclusory, without any supporting
explanation or rationale. The claimant [sic]
EEG in September 2013 was normal (Exhibit
B12F/37 [R. 575]). The neurological
examination by Dr. Jafree in January 2014 was
within normal limits (Exhibit B12F/17 [R.
555]). There is nothing in the record to
substantiate Dr. Carlson’s opinion other than
the claimant’s subjective complaints.
Furthermore, Dr. Carlson noted in a letter to
send to the claimant’s insurance company for
approval of medication that the medication
“controls” his headaches and he would be able
to function normally with the medication
(Exhibit B15F/97 [R. 370]). These statements
are inconsistent with Dr. Carlson’s opinion
that the claimant is disabled.

22

(R. 24.)

The quoted analysis shows that ALJ Wolfe inferentially

made a finding that Plaintiff’s statements regarding his headache
pain were not entirely credible and the record shows she does so
without the required explanation.
Relevant guidance regarding the ALJ’s obligation to make a
specific credibility finding is quite detailed:
The finding on the credibility of the
individual’s statements cannot be based on an
intangible or intuitive notion about an
individual’s credibility. The reasons for
the credibility finding must be grounded in
the evidence and articulated in the
determination or decision. It is not
sufficient to make a conclusory statement
that “the individual’s allegations have been
considered” or that “the allegations are (or
are not) credible.” It is also not enough
for the adjudicator simply to recite the
factors that are described in the regulations
for evaluating symptoms. The determination
or decision must contain specific reasons for
the finding on credibility, supported by the
evidence in the case record, and must be
sufficiently specific to make clear to the
individual and to any subsequent reviewers
the weight the adjudicator gave the
individual’s statements and the reasons for
that weight. The documentation is necessary
in order to give the individual a full and
fair review of his or her claim, and in order
to ensure a well-reasoned determination or
decision.
SSR 96-7p, 1996 WL 374186, at *4.
ALJ Wolfe’s conclusory statement regarding Plaintiff’s
credibility (R. 19) clearly does not satisfy the obligation
explained in SSR 96-7p.

Importantly, the ALJ did not mention

Plaintiff’s extensive testimony about limitations related to
23

migraine headache pain--subjective complaints which were to be
given serious consideration.7

Mason, 994 F.2d at 1067.

The ALJ

did not discuss any of the factors which are to be considered
relevant to symptoms such as pain except for the effectiveness of
medications taken to alleviate pain.
404.1529(c)(3).

See, e.g., 20 C.F.R. §

ALJ Wolfe’s mention of the effectiveness of pain

medication does not suffice as an explanation for a credibility
determination for several reasons.

First, the factor is not

considered in the context of the required explanation–-the
effectiveness of the medication is considered only in the context
of the ALJ’s assessment of Dr. Carlson’s opinion.

(R. 24.)

Second, medication effectiveness is the only factor mentioned.8
(Id.)

Third, ALJ Wolfe misconstrued the evidence relied upon--her

notation that “medication ‘controls’ his headaches and he would be
able to function normally with the medication,” (R. 24 [quoting R.
379]), is not an accurate assessment of Dr. Carlson’s statement.
In a letter to Plaintiff which was intended to be forwarded to
Plaintiff’s insurance company, Dr. Carlson briefly set out the
history of Plaintiff’s headaches (including their progression from
occurring a few times a week to daily) and stated that the “only

7

See supra pp. 9-10.

8

While there is no absolute requirement that an ALJ discuss
all regulatory factors, an ALJ should analyze “as many of these
factors as is applicable in order to provide sufficient findings
for judicial review.” Centano v. Comm’r of Soc. Sec., Civ. No. 096023, 2010 WL 5068141, at *8 (D.N.J. Dec. 6, 2010).
24

medication” which gave him relief was Relpax.

(R. 369.)

He then

said
[y]ou are struggling to control your
headaches because you only get 6 tablets a
month through your insurance company.
I would forward this letter to your
insurance company to ask them if there could
be an exception for you so that you get as
many as 36 tablets a month which would give
you good headache control and function more
normally.
(R. 369-70.)
The problem with the ALJ’s interpretation of Dr. Carlson’s
statement is twofold.

A discrepancy exists between an ability to

“function more normally” with adequate medication (R. 370) and the
ability “to function normally with his medication” (R. 24)–-Dr.
Carlson’s description of Plaintiff’s ability in relative terms
should not be construed to equate with normal functioning as ALJ
Wolfe did in her assessment.

Moreover, Dr. Carlson’s letter

indicates that Relpax would give Plaintiff good headache control if
a sufficient quantity were available.

That quantity was not

available at the time Dr. Carlson wrote the letter on November 29,
2011, and it was not available as of August 6, 2014, when Dr.
Mattiace noted that Plaintiff was using six per month and was being
given thirty-six at a time by Dr. Carlson, a practice Dr. Mattiace
intended to continue.

(R. 369-70, 537.)

Thus, although Relpax

provided a potential for good headache control, the record does not
support a conclusion that the potential was realized.
25

In addition

to evidence that Plaintiff did not have access to a sufficient
quantity of Relpax, a conclusion that Plaintiff’s headaches were
consistently controlled with medication is contradicted by Dr.
Jafree’s January 8, 2014, assessment of “[h]eadaches medically
refractory migraines” (R. 556) and similar diagnoses of record
(see, e.g., R. 453).9
Finally, the ALJ’s inference that Plaintiff’s subjective
complaints regarding his headaches were not entirely credible
because of normal test results--including a September 2013 normal
EEG and Dr. Jafree’s January 2014 normal neurological examination
(R. 24)--is also problematic.

First, it is noteworthy that Dr.

Jafree diagnosed “medically refractory migraines” at the same
office visit where his neurological exam was normal.

(R. 555-56.)

More importantly, normal examination and diagnostic testing do not
undermine a migraine diagnosis and/or subjective complaints.
Numerous courts have recognized that
migraine headaches “cannot be detected by
imaging techniques, laboratory tests, or
physical examination.” Abbruzzese v. Astrue,
2010 WL 5140615 at *7 (W.D. Pa. 2010);
Parsley v. Astrue, 2009 WWL 1940365 at *4
(W.D. Pa. 2009) (noting that migraine
headaches “do not stem from a physical or
chemical abnormality which can be detected by
imaging techniques or laboratory tests”),
citing Diaz v. Barnhart, 2002 WL 3234945 at

9

“Refractory migraine,” also called “intractable migraine,”
and/or “status migraoinosus,” is a term used to describe “a
persistent migraine that is either 1) difficult to treat or b)
fails respond to standard and/or aggressive treatments.”
https://migraine.com/blog/the-ins-and-outs-of-intractable.
26

*6 (E.D. Pa. 2002) (same); Strickland v.
Barnhart, 107 F. App’x 685, 689 (7th Cir.
2004) (noting that “nothing in the record
suggests neurological tests can either
confirm the existence of migraines or there
[sic] likely severity” and the treating
physician’s conclusion that the claimant
suffered from severe migraines “even in the
face of normal test results shows that there
are not diagnostic tests that work
particularly well for migraines.”); Federman
v. Chater, 1996 WL 107291 at *2 (S.D.N.Y.
1996) (noting that because there is no test
for migraine headaches, when presented with
documented allegations of symptoms which are
entirely consistent with the symptomatology
for evaluating the claimed disorder, the
Secretary cannot rely on the ALJ’s rejection
of the claimant’s testimony based on the mere
absence of objective evidence.”) (citations
omitted). “Doctors diagnose migraines when
symptoms are typical and results of physical
examination (which includes a neurologic
examination) are normal. No procedure can
confirm the diagnosis.” Abbruzzese, 2010 WL
5140615 at *7 (quoting
www.merckmanuals.com/home).
Salberg v. Astrue, Civ. A. No. 11-175, 2012 WL 4478310, at *13
(W.D. Pa. Sept. 27, 2012).
Because of the lack of objective verification, “[a]n ALJ must
be particularly diligent in making credibility determinations with
regard to migraines.”

Thomas v. Colvin, No. 1:14-CV-00274-TFM,

2015 WL 4067147, at *5 (W.D. Pa. July 2, 2015) (internal citation
omitted).

Courts look at a number of factors in determining

whether a claimant's complaints of migraines are credible,
including:
whether the claimant has been diagnosed with
migraines; whether the claimant has received
27

treatment and medication; the length of the
history of complaints and treatment relating
to migraines; the alleged severity and
frequency; the symptoms the claimant alleges
the migraines cause; and whether the record
contains any statements from doctors
questioning the alleged frequency or
severity.
Kulbacki v. Colvin, 2016 WL 2609984, at *6 (W.D. Pa. May 6, 2016)
(citing Thomas, 2015 WL 4067147, at *5-7).

Relevant to

consideration of the functional limitations caused by episodic
symptoms, Abbruzzese noted that “headaches are episodic, thus
affecting [the] ability to work on a regular, sustained basis,”
2010 WL 5140615, at *8, and the Seventh Circuit Court of Appeals
explained that “full-time work does not allow for the flexibility
to work around periods of incapacitation,” Moore v. Colvin, 743
F.3d 1118, 1126 (7th Cir. 2014).
Not only do these observations and principles provide a
framework for the proper consideration of Plaintiff’s migraine
headache complaints, they also point to error in ALJ Wolfe’s
conclusion that Dr. Carlson’s opinion was entitled to little weight
on the basis that “[t]here is nothing in the record to substantiate
Dr. Carlson’s opinion other than the claimant’s subjective
complaints.”

(R. 24.)

Thus, upon remand, a much more thorough and

legally appropriate analysis of Plaintiff’s headache impairment
must be conducted.
Additional consideration should be conducted in accord with
the instruction found in SSR 97-6p that “[w]hen additional
28

information is needed to assess the credibility of the individual's
statements about symptoms and their effects, the adjudicator must
make every reasonable effort to obtain available information that
could shed light on the credibility of the individual's
statements.”

1996 WL 374186, at *3.

In this case, further

evidence is likely required regarding Plaintiff’s ongoing problems
securing effective medication (see, e.g., R. 370, 479, 538, 554)
and clarification of the relative terms used by his primary care
doctor to describe his status (e.g., doing “reasonably well” (R.
480, 536, 537), “his life is tolerable” (R. 473), “things have been
fairly stable” (R. 534)).10
B.

Residual Functional Capacity
Plaintiff asserts that there is no evidence of record that he

retained the RFC assessed by ALJ Wolfe.

(Doc. 11 at 3.)

responds that substantial evidence supports the ALJ’s RFC.

Defendant

12 at 7.)

(Doc.

Because the Court has concluded that remand is required

for the reasons set out above, reevaluation of Plaintiff’s RFC is

10

Additional evidence may include consideration of, and
further information regarding, Dr. Mattiace’s November 4, 2014,
opinion that Plaintiff experienced severe migraine headaches daily
and he was incapable of sedentary work when he was in the throes of
a migraine headache. (R. 591.) This evidence was not before the
ALJ and was rejected by the Appeals Council (R. 2), but it is
relevant to ongoing migraine pain control difficulties. See Szubak
v. Sec’y of Health & Hum. Servs., 745 F.2d 831, 833 (3d Cir. 1984).
29

required.11
V. Conclusion
For the reasons discussed above, the Court concludes the ALJ’s
credibility and RFC findings are not supported by substantial
evidence.

Therefore, Plaintiff’s appeal of the Acting

Commissioner’s decision is properly granted and 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: March 3, 2017

11

The regulations explain that “symptoms, such as pain, may
cause physical and mental limitations that affect what you can do
in a work setting. Your residual functional capacity is the most
you can do despite your limitations. We will assess your residual
functional capacity based on all the relevant evidence in your case
record.” 20 C.F.R. 404. 1545(a)(1), 416.945(a)(1).
30