Reeves v. Commissioner of Social Security et al

Filing 19

MEMORANDUM (Order to follow as separate docket entry). In the alternative, the Agency may certainly elect to award DIB benefits inasmuch as there is certainly substantial evidence of record to support that result. An Order to reflect the conclusions reached in this Memorandum will be issued contemporaneously.(See Memorandum)Signed by Honorable Richard P. Conaboy on 8/10/17. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Kimberly Ann Reeves

:

Plaintiff,

: Civil Action No. 3:16-CV-2510

v.

: (Judge Richard P. Conaboy)

NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security

:
:

Defendant.
:
___________________________________________________________________
Memorandum
I.

Background.
We consider here Plaintiff’s appeal from an adverse decision

of the Social Security Administration (“SSA” or “Agency”) on her
application for disability insurance benefits (“DIB).

Plaintiff

appeals from a “final decision” of the Agency’s Appeals Counsel
dated October 31, 2016.

(R.680-686.

This Court has jurisdiction

over this appeal pursuant to 42 U.S.C. Section 405(g).2

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. section 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.”
2

We note that this Court had previously considered a final decision of the SSA in this matter
and concluded that a remand was necessary for the SSA to give further consideration to several
points raised in this Court’s Memorandum and Order (Docs. 17 and 18 dated July 30, 2015; M.D. Pa.
3:15-CV-444). The current matter arises from the Agency’s decision in the wake of that remand.
1

The Administrative Law Judge (“ALJ”) who considered this claim
found that Plaintiff had numerous “severe” impairments that
include: fibromyalgia, carpal tunnel syndrome, obesity, migraine
headaches, bipolar disorder, post-traumatic stress disorder (PTSD),
anxiety disorder, and major depressive disorder/depression.
(R.699).

Despite the presence of these multiple severe

impairments, the AlJ concluded that Plaintiff had the residual
functional capacity (“RFC”) to perform sedentary work with various
(R.702).3

additional limitations.

that is the focus of this appeal.

It is this RFC determination
The issues have been fully

briefed by the parties(Docs. 16, 17 and 18) and this case is now
ripe for disposition.
II.

Testimony Before the ALJ.
A.

Hearing Conducted September 23, 2014.

Plaintiff’s testimony before the ALJ on September 23, 2014 may
be summarized as follows.

Plaintiff is a resident of Lock Haven,

Pennsylvania and lives with her husband and three children aged 6,
14, and 15.

She stated that she was unable to work after her

alleged onset date, September 28, 2012.

Plaintiff was two weeks

short of her 43rd birthday on the date of the hearing.

She is

right-handed, five feet two inches tall, and weighs approximately

3

The ALJ’s RFC determination in the previous phase of this case had limited Plaintiff to
“light” work with the same additional limitations identified here. These additional limitations will
be discussed in more detail below.
2

190 pounds.

She does have a driver’s license but seldom drives.

Her husband normally drives when they go anywhere.

She

occasionally drives to the grocery store (a distance of six miles)
and to her doctor’s office (a distance of 38 miles) accompanied by
her husband.

Her PTSD impairs her driving significantly because

she has a fear of going under bridges and being in heavy traffic.
She completed high school and has an associate’s degree in criminal
justice.

She did military service from 1989 through 2004 and

receives benefits from the Veterans Administration.

(R.59-61).

She last worked in September of 2012 when she was employed by
the GEO Group.

She stopped working because an exacerbation of her

illnesses was causing her to miss work too often.

She quit because

she was afraid she would be fired for missing so much time and she
did not want a termination on her work record.

She did work

sporadically as a merchandiser setting up jewelry display in 2013.
She worked only 5-6 days per month and lifted no more than ten
pounds in the course of her employment as a merchandiser.

Her last

full-time employment for the GEO Group was as a corrections
officer.

This work was modified to accommodate her disabilities

and her duties were flexible according to the way she felt on a
given day.

When she was feeling poorly she would be assigned to a

control room where her job entailed pushing buttons to open and
close doors in the facility.

(R.62-63).

Plaintiff did look for other work after leaving the GEO Group

3

but her medications made her so nauseous and sleepy that she could
not maintain full-time employment.

At some unspecified time in

2012 her fibromyalgia intensified and her migraines became more
frequent- - occurring up to five times weekly.

She stated that as

of her hearing date she was still experiencing one or two migraines
each week.

These migraines are of sufficient severity that she has

to go to bed in a dark room with no noise when they occur.

(R.63-

64).
Plaintiff receives most of her medical treatment through the
Veterans Administration.

Her last hospital admission was in 2010

after she suffered a heart attack.

Since then she has visited the

emergency room several times for symptoms of PTSD and anxiety.

At

the time of the hearing, Plaintiff was taking the following
medications: Tramodol, Imitrex, paraffin wax for carpal tunnel
syndrome, Albuterol, Gemfibrozil, Ibuprofen 800 for fibromyalgia
and inflammation, Loratadine for allergies, Omeprazole for gastric
reflex, Duloxative for fibromyalgia, and Vitamin D.

The combined

effect of these medications produces sleepiness, nausea, and
irritability (R.65-66).
In describing her daily activities Plaintiff stated that she
rises at 6:30 a.m. to get her youngest child ready for the bus.
She loads the dishwasher in the morning and then rests for a while.
If she is having a good day she sometimes runs the vacuum or makes
dinner in a crock pot.

She generally watches from TV from 6:00 to

4

8:00 in the evening and reads with her son.

She uses a computer

for approximately 15 minutes each day to check emails and monitor
medical appointments.

Her use of the computer is limited because

of symptoms of her carpal tunnel syndrome.

Also, prolonged viewing

of the computer screen aggravates her photosensitivity and can
bring on migraine headaches.

(R.66-67).

Plaintiff does some of the grocery shopping for her family but
she tries to do this early in the day because she feels
uncomfortable around large groups of people.

She belongs to the

American Legion, The Veterans of Foreign Wars, and The Disabled
American Veterans but does not attend any functions of those groups
because she finds discussion of her military experiences in Iraq
upsets her.

She has never smoked and has not gone to dinner and a

movie in four years.

Her husband attends the various functions at

her children’s schools.

She generally does not go to these

functions but did go to one parent/teacher conference with her
daughter’s kindergarten teacher.

(R.68-69).

She estimates that she can walk no more than 25 feet without
her inhaler and testified to difficulty standing in place because
of heel spurs and her fibromyalgia.

She estimated that she can

stand for 15-30 minutes before needing to sit down to rest.

She

also must change positions frequently when sitting because of
scoliosis in her lumbar spine and joint stiffness.

She can lift

items as heavy as a gallon of tea or a bag of sugar but must be

5

careful because she has a tendency to drop things due to
paresthesia in her left hand.

She is treating for paresthesia with

a rheumatologist.

Upon questioning by her attorney,

(R.69-70).

Plaintiff told how she was accommodated while working for the GEO
Group for five months in 2012.

She was required to walk around

every 30 minutes but would be sitting 65% of the time observing
inmates from the control booth.

Even with these accommodations she

was unable to complete her shift on some days and she used up all
her vacation and sick time within five months.

She stated that she

missed three to five days each month in her time working for the
GEO Group.

(R.70-72).

Plaintiff also discussed her tenure at a state hospital for
the criminally insane where she worked from June of 2010 to January
of 2011.

She was terminated from that job after missing two weeks

of work due to vision problems.

This job had duties similar to the

job she performed for the GEO group.

Prior to the job at the

hospital for the criminally insane, Plaintiff worked as a desk
clerk/housekeeping manager for a hotel.

She missed much time at

this job as well and she quit after coming back from her heart
attack due to interpersonal problems with her supervisor.

(R.72-

74).
Plaintiff described numerous physical difficulties including:
numbness and tingling in her left (dominant) hand; weakness in her
right hand as a residual effect of a brain injury she suffered

6

while serving in Iraq; swelling in her feet with “fibro flares”
that are typically worse in the morning and evening; difficulty
walking due to paresthesia in her right knee; migraine headaches
that occur one to two days each week and last four to twenty-four
hours depending upon how quickly her prescription Imitrex works;
and loss of sleep due to PTSD, anxiety, and panic attacks. (R.7579).4
Plaintiff explained that she is rated by the Veterans
Administration as 50% impaired due to PTSD and 40% due to
fibromyalgia.

These ratings in combination result in a VA

determination that she is 100% disabled according to Veterans
Administration criteria.

Plaintiff continues to see a

rheumatologist for her fibromyalgia and a psychiatrist for her PTSD
and anxiety.

(R.80-82)....

Also testifying was Patricia Chilleri, a vocational expert
(“VE”).

The VE testified that she had reviewed Plaintiff’s

employment history and that she was familiar with the Dictionary of
Occupational Titles and the ratings it establishes for various
jobs.

The VE was asked to respond to a hypothetical question

regarding an individual the same age as Plaintiff with a similar
educational and work history who has the residual functional
capacity (“RFC”) to work at a light exertional level with
4

Plaintiff related that while she was on duty in Iraq she was physically assaulted and injurred
by an Iraqi national. The record indicates that she was in the military from 1989 through 2004.
(R.78).
7

additional limitations including: only occasional balancing,
stooping, crawling and kneeling; an inability to climb ladders or
scaffolds; the need to avoid concentrated exposure to temperature
extremes, moisture, fumes, dust, poor ventilation and excessive
vibration or loud noises; the need to avoid moving machinery and
unprotected heights; and a capability to perform only occupations
that involve simple-routine tasks performed in a low stress
environment involving only occasional interaction with co-workers
and supervisors and no interaction with the general public.

When

asked whether an individual who fit this profile would be able to
perform any of Plaintiff’s past military or civilian occupations,
the VE stated that such a person could not perform any of
Plaintiff’s past relevant work.

(R.83-90).

The VE then stated

that the hypothetical individual would be capable of performing
jobs of the unskilled variety under the following occupational
classifications:

“weighers, checkers, and measurers”;

“administrative support workers”; and “production helper not
elsewhere classified”.
B.

(R.83-91).

Hearing Conducted March 21, 2016.

The hearing of March 21, 2016 focused on Plaintiff’s physical
and mental condition in the period after the previous hearing
conducted September 23, 2014.

Much redundant information was

obtained which will not be repeated here.
Plaintiff testified that in the interim period between her

8

hearings she had driven about four or five times each month.

She

stated that her migraines have intensified and that she now suffers
from them up to four days each week.

The Plaintiff’s medicines

have been changed in an effort to curb her migraines.

She also

testified that she continues to suffer symptoms of fibromyalgia,
has been diagnosed with spondylosis in addition to scoliosis, and
that both her PTSD and anxiety disorder have gotten worse.

Her

psychiatrist has prescribed different medications to help with her
PTSD and anxiety problems (R.744-745).
Tramodol and Trazodene combined make Plaintiff sleepy.
also make her sick to her stomach.

They

Her level of activity is

somewhat less than that she had described at her previous hearing
due to an exacerbation of her back problems.

Plaintiff’s husband

and children have taken over all household chores as of October or
November of 2015.

The doctor who diagnosed her spondylosis

prescribed a back brace for her and she was awaiting the scheduling
of an MRI.

(R.746-748).

Plaintiff testified that about four months preceding her
second hearing (in approximately November or December of 2015) she
was taken to the emergency room during a particularly bad migraine.
The Veterans Administration doctor who attended her then prescribed
a new medication to take in combination with the previously
prescribed Imitrex.

Plaintiff also reiterated her need to

frequently rotate from sitting to standing positions because of

9

pain in her back and numbness running down her right leg.

(R.748-

750).
Upon questioning by her attorney, Plaintiff stated that for
the four months preceding her hearing she had been experiencing two
to four migraine headaches per week.
helpful, but not always.

The Imitrex is sometimes

When she is experiencing a migraine she

must lie down in a dark place.

On one occasion she was transported

to the emergency room and was given “an IV migraine cocktail” for
three hours because the Imitrex did not work.

Bright lights, noisy

environments and certain smells can trigger her migraines.

She

stated that she had missed four medical appointments in the last
month due to the effects of her migraines and fibromyalgia.
Plaintiff also stated that in recent months her PTSD, panic attacks
and depression had been less problematic due to new medications and
therapy she had received.

(R.750-754).

Vocational Expert Patricia Chilleri once again summarized
Plaintiff’s past work history and reiterated her testimony in the
previous hearing to the effect that, given the RFC proposed by the
ALJ, the Plaintiff was incapable of performing any of her past
relevant work.

(R.758-762).

Even when the RFC was changed to one

describing sedentary work as opposed to light work with the same
additional limitations previously noted, the VE continued to
maintain that Plaintiff would be unable to perform her past
relevant work of any kind.

As the VE had concluded at Plaintiff’s

10

previous hearing in 2014, Ms. Chilleri stated that, even limited to
sedentary occupations with the additional limitations imposed by
the ALJ’s RFC determination, Plaintiff could perform several jobs
under the occupational classification of “sorters, handlers,
testers, and inspectors”.

Upon cross-examination by Plaintiff’s

attorney, Ms. Chilleri did acknowledge that should Plaintiff be off
task more than 20% of the workday or should she be incapable of
working two days or more each month, she would be completely
unemployable.

(R.763-772).

III. Impairment Evidence Re: 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
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

11

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
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

12

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
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.
The following history was recorded:

13

(R. 600.)

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.

14

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.

(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

15

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
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.

16

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
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

17

“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”
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

18

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

19

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

(R.

Plaintiff reported that she gets two migraines per week of

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

20

2013.

(See R. 334.)

Plaintiff reported at least two headaches per

week with no visual field defects.
take Imitrex for the headaches.
included migraine headaches.

(Id.)

(Id.)

Plaintiff continued to

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.
R. 356-63.)

(Id.)

Migraine headaches are not mentioned.

(See

At a subsequent examination on July 30, 2015 Dr. Mehta

diagnosed Plaintiff with “intractable migraine with aura without
status migrainous.”
IV.

(R.2190-91).

ALJ Decision.
The AlJ’s decision (Doc. 13-12 at 696-729) was unfavorable to

the Plaintiff.

It included the following findings of facts and

conclusions of law:
1.

The claimant meets the insured’s status requirements of
the Social Security Act through December 31, 2019.

2.

The claimant has not engaged in substantial gainful
activity since September 28, 2012, the alleged onset
date.

3.

The claimant has the following severe impairments:
21

fibromyalgia, carpal tunnel syndrome, obesity, migraine
headaches, bipolar disorder, post-traumatic stress
disorder (PTSD), anxiety disorder, and major depressive
disorder/depression.
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(b), 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 sedentary work as defined
in 20 CFR 404.1567(a) 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 and/or pull with the upper
extremities and lower extremities.
perform gross and fine manipulation.

She can frequently
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 jack hammering
noise and hazards including moving machinery and
unprotected heights.

She can do simple, routine tasks,

22

but no complex tasks and she can 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.

7.

The claimant was born on September 9, 1971 and was 41
years old, which is defined as a younger individual age
18-44 on the alleged disability onset date.

8.

The claimant has at least a high school education and is
able to communicate in English.

9.

Transferability of job skills is not material to the
determination of disability because using the Medical
Vocational Rules as a framework supports a finding that
the claimant is “not disabled,” whether or not the
claimant has transferable job skills.

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 Plaintiff can perform.

11.

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.

V.

Disability Determination Process.

23

The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.5

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

20 CFR §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
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

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 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).
24

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 there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R.at 725).
VI. 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.
25

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,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the

26

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.

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
27

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).
VII. 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
28

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

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.”
VIII.

Id.

Plaintiff’s Allegations of Error.

Plaintiff alleges two errors that in her estimation should
require that this matter once again be remanded for further
consideration.
1.

We shall consider them in turn.

Whether the ALJ Rejected Uncontradicted Vocational
Evidence Supporting an Award of Benefits?

Plaintiff contends that a post-hearing submission from Paula
Santagati, a Vocational Rehabilitation Counselor, should require
remand of this case.

Ms. Santagati opined that, given the ALJ’s

limitation of Plaintiff to “occasional interaction with co-workers
29

and supervisors”, the Plaintiff would be unable to perform any of
the jobs identified as within her RFC determination because each of
these jobs requires a training period requiring more social
interaction than the ALJ found she could tolerate.

(Doc. 16 at 4).

Plaintiff characterized Ms. Santagati’s opinion as
“uncontradicted”.

This characterization is not accurate.

Vocational Expert Patricia Chilleri testified at both hearings
in Plaintiff’s case.

In each of these hearings she attested that

she was familiar with the Dictionary of Occupational Titles, other
manuals and treatises habitually relied upon by vocational
counselors, and the jobs she discussed, both in terms of their
descriptions and in the way the jobs are actually performed.

From

this reservoir of knowledge she was properly characterized as an
expert by the AlJ and no objection to the contrary was made by
Plaintiff’s attorney at the hearings.

Vocational expert Chilleri

testified unequivocally that an individual with Plaintiff’s
residual functional capacity could perform the sedentary jobs she
identified as limited by additional restrictions imposed by her
RFC.

For that reason, Plaintiff’s characterization of Ms.

Santagati’s opinion as “uncontradicted” cannot be credited.
Still, Plaintiff’s argument seeks to fault the ALJ for not
providing an adequate explanation of why she preferred VE
Chilleri’s opinion to that of Ms. Santagati.

Our review of the

ALJ’s decision persuades the Court that the ALJ’s protracted

30

explanation for why she relied upon VE Chilleri’s opinion (R.72628) was more than adequate to support that reliance.

The ALJ noted

Ms. Chilleri’s educational background, her extensive professional
experience including more than 30 years as a vocational expert
appearing before the Social Security Administration, and her
numerous certifications in vocational rehabilitation, disability
management, and rehabilitation counseling.

The ALJ also noted that

Ms. Chilleri’s use of the Occubrowse program to buttress her
opinion on the nature of the jobs the Plaintiff could perform, a
use to which Plaintiff had specifically objected, was permissible
because 20 CFR 404.1566 explicitly permits the Agency to “take the
administrative notice of reliable job information available from
various governmental and other publications.”

The ALJ noted too

that vocational experts generally cross-reference the Dictionary of
Occupational Titles to other publications (such as Occubrowse) to
arrive at estimates of the number of jobs available in a given
catgegory.

Thus, the Court finds that the ALJ’s rationale for

accepting Ms. Chilleri’s testimony regarding the number and type of
jobs available within the AlJ’s RFC determination for the Plaintiff
was logical and sufficient.

Accordingly, Plaintiff’s assignment of

error on this point will be denied.
2.

Whether the AlJ Properly Evaluated the Limiting Effect of
Plaintiff’s Migraine Headaches?

In our previous Memorandum and Order (Docs. 17 & 18 dated July

31

30, 2015; M.D. Pa. 3:15-CV-444) concerning Plaintiff’s application
for DIB the Court found that, while the AlJ had acknowledged
Plaintiff’s migraine headaches to constitute a “severe impairment”,
her RFC determination did not provide for any limitations related
to Plaintiff’s migraines.

The Court stated:

Other than acknowledging Plaintiff’s testimony in her
review of the 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.
(Docket item 17 at 30, M.D.Pa 3:15-CV-444).
The ALJ’s decision of May 31, 2016 (Doc. 13-12) simply
continues to manifest the deficiences this Court had identified
previously.

The record in this case is redolent of the Plaintiff’s

lengthy history of severe migraine headaches.

Plaintiff correctly

notes in her brief (Doc. 16 at 11-12) that many progress notes by
no fewer than eight medical providers document the chronic nature
and intensity of these headaches.

As the ALJ herself noted

(R.714), one physician, Dr. Mehta, diagnosed Plaintiff with
classical and intractable migraine headaches.

32

Plaintiff has

testified consistently at two hearings that these headaches have
occurred over a period of more than four years and that they have
occurred at least once per week and as often as 3-4 times weekly
throughout that time frame.

She has also testified that when these

headaches occur she becomes non-functional for anywhere from four
to twenty-four hours.

Linked as they are to a diagnosis that might

be expected to produce the type and level of pain that Plaintiff
alleges, Plaintiff’s complaints of pain are entitled to great
weight unless they are somehow undermined by contrary medical
evidence.

Ferguson v. Schweiker, 765 F.2d 31, 37 (3d. Cir. 1985).

The ALJ points to no such contrary medical evidence anywhere in
this record.
The ALJ’s rationale for discounting the effects of Plaintiff’s
migraine headaches is, once again, inadequate.

The ALJ notes,

without citation to the record, that: “It seems when her
medications wear off or when she has periods of significant stress
related to family issues, she complained of headaches.

She had

significant pain relief with her medications and the records do not
document her complaints of spending nearly every day in bed.”

This

statement by the ALJ grossly mischaracterizes the records and
Plaintiff’s testimony.

As noted earlier, her complaints of

migraines were consistent over a period of more than four years and
documented by several physicians.

Also, she testified to spending

1-4 days each week incapacitated from four to twenty-four hours due

33

to migraines.

“Significant pain relif” as characterized by the ALJ

is meaningless without context.6
The ALJ’s only other reference to the effects of Plaintiff’s
migraines is her comment:
Little weight is further given to the statement (by Dr.
Magurno) that “marked scheduled disruptions due to
migraines”.

This opinion is not based on the claimant’s

objective examination but rather more so from subjective
complaints.

The records show she has been treated for

her migraines and as noted above fail to show that these
are as debilitating on routine basis as alleged by the
claimant at the hearings.

She was taking care of her

neighbors’ children in 2014, she watches television and
reads.

The CT scans of the brain were unremarkable

(Exhibits 9F and 17F) and the MRI was negative (Exhibit
11F, P. 276).

She had reported good relief with Imitrex

in 2013, and had noted improvement with Inderal in 2015.
There is no continual treatment with a neurologist for
this conditon.
R. at 724).
This explanation has several components, each of them
insubstantial.

First, at least three treating physicians, two

6

The record indicates that Plaintiff has been taking Imitrex, later supplemented by Inderal,
over a period of years to try, without success, to control her migraine headaches.
34

neurologists, and a consulting physician have documented the
existence and persistent nature of Plaintiff’s headaches.
Second, there is no medical opinion in this record to
substantiate the need for CT scans or MRI’s to document
migraine headaches.7 Third, the fact that Plaintiff
acknowledged watching a neighbor’s children on a sporadic
basis in 2014 and that she watches television and reads to
some extent most days in no way refutes her assertions
regarding the frequency and severity of her migraines.
Fourth, the fact that she had good (but completely
unquantified) relief with Imitrex in 2013 and noted
improvement (again unquantified) with Inderal in 2015 does not
contradict the severity or frequency of her symptoms.

Fifth,

there is no requirement that Plaintiff, who is treating with
her family physican and has consulted with a neurologist for
her migraines, be under the continual care of a neurologist.
What we are left with is a situation where the ALJ has
accepted the fact that Plaintiff’s migraines are a severe
impairment”.

“Severe impairments” by definition cause

significant limitation of a claimant’s ability to work.
20 CFR 404.1521(a).

See

Yet, in this Court’s estimation, the

7

In fact, migraine headaches are normally diagnosed by resort to a patient’s medical history,
symptoms, and a physical and neurological examination. CT scans and MRI’s are used only to rule
out other causes for the symptoms a patient may be experiencing. www.mayoclinic.org/diseasesconditions/migraine-headache.
35

ALJ’s RFC determination in this case includes no provision
that reasonably relates to Plaintiff’s symptoms from her welldocumented chronic migraine headaches.8

Thus, this case must

once again be remanded for the Agency to explain what evidence
suggests that the Agency’s RFC determination in this case
gives adequate consideration to the limiting effects of
Plaintiff’s chronic migraine headaches.

In the alternative,

the Agency may certainly elect to award DIB benefits inasmuch
as there is certainly substantial evidence of record to
support that result.

An Order to reflect the conclusions

reached in this Memorandum will be issued contemporaneously.

BY THE COURT

S/Richard P. Conaboy
Honorable Richard P. Conaboy
United States District Court

Dated: August 10, 2017

8

It should be noted that Vocational Expert Chilleri, who was relied upon by the ALJ, has
testified that if Plaintiff were to miss even two days each month due to the effects of her migraines
she would be unable to maintain any employment. (R.771-72).
36

37