NEWCOMER v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
OPINION and ORDER denying 9 Motion for Summary Judgment; granting 11 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 4/20/2015. (sps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MELLONY LEE NEWCOMER,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Civil Action No. 14-161J
AMBROSE, Senior District Judge
OPINION
and
ORDER OF COURT
SYNOPSIS
Pending before the Court are Cross-Motions for Summary Judgment. (Docket Nos. 9
and 11). Both parties have filed Briefs in Support of their Motions. (Docket Nos. 10 and 12).
Plaintiff also filed a Reply Brief. (Docket No. 15). After careful consideration of the submissions
of the parties, and based on my Opinion set forth below, I am granting Defendant’s Motion for
Summary Judgment (Docket No. 11) and denying Plaintiff’s Motion for Summary Judgment
(Docket No. 9).
I. BACKGROUND
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”) and for Supplemental Security Income (“SSI”) under
Title XVI of the Act. On or about August 9, 2011, Plaintiff applied for DIB, and, on or about
August 16, 2011, she applied for SSI. (R. 106-116, 225-237). In both applications, she alleged
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that since February 28, 2011, she had been disabled due to bipolar disorder, ADHD, depression,
hemiplegic migraines, and anxiety. (R. 124, 138, 321-322). Her last date insured is December
31, 2016.
(R. 14).
The state agency denied her claims initially, and she requested an
administrative hearing. (R. 156-166). Administrative Law Judge (“ALJ”) Marty Pillion held a
hearing on January 15, 2013, at which Plaintiff was represented by counsel. (R. 48-85). Plaintiff
appeared at the hearing and testified on her own behalf. Id. A vocational expert also was
present at the hearing and testified. (R. 75-83). In a decision dated April 9, 2013, the ALJ found
that jobs existed in significant numbers in the national economy that Plaintiff could perform and,
therefore, that Plaintiff was not disabled under the Act. (R. 14-41). Plaintiff requested review of
the ALJ’s determination by the Appeals Council, and, on December 31, 2013, the Appeals
Council denied Plaintiff’s request for review.
(R. 1-5).
Having exhausted all of her
administrative remedies, Plaintiff filed this action.
The parties have filed Cross-Motions for Summary Judgment. (Docket Nos. 9 and 11).
The issues are now ripe for my review.
II.
A.
LEGAL ANALYSIS
STANDARD OF REVIEW
The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner’s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.” Ventura v. Shalala, 55 F.3d
900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Additionally,
the Commissioner’s findings of fact, if supported by substantial evidence, are conclusive. 42
U.S.C. § 405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). A district court
cannot conduct a de novo review of the Commissioner’s decision or re-weigh the evidence of
record. Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's findings of
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fact are supported by substantial evidence, a court is bound by those findings, even if the court
would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999). To determine whether a finding is supported by substantial evidence, however, the district
court must review the record as a whole. See 5 U.S.C. § 706.
To be eligible for social security benefits, the plaintiff must demonstrate that she cannot
engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. § 1382(a)(3)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use when
evaluating the disabled status of each claimant. 20 C.F.R. §§ 404.1520, 416.920. The ALJ
must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if
not, whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,
whether it meets or equals the criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant’s impairments
prevent her from performing her past relevant work; and (5) if the claimant is incapable of
performing her past relevant work, whether she can perform any other work which exists in the
national economy, in light of her age, education, work experience and residual functional
capacity.
20 C.F.R. §§ 404.1520, 416.920.
The claimant carries the initial burden of
demonstrating by medical evidence that she is unable to return to her previous employment
(steps 1-4). Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of
proof shifts to the Commissioner to show that the claimant can engage in alternative substantial
gainful activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the decision
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with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745 F.2d 210,
221 (3d Cir. 1984).
B.
WHETHER THE ALJ ERRED BY FAILING TO EVALUATE THE EFFECTS OF
PLAINTIFF’S MIGRAINE HEADACHES ON HER ABILITY TO WORK ON A REGULAR
AND CONTINUING BASIS AND/OR ERRED IN HIS CREDIBILITY ANALYSIS
The ALJ found that Plaintiff had severe impairments, including cervicalgia, myofascial
pain syndrome, migraines, spasm of the muscle, insomnia, anxiety disorder, depression, asthma,
occipital neuralgia, bilateral hip pain, chronic sinusitis, neck strain, and left shoulder pain. (R.
17). He further found that Plaintiff had the residual functional capacity (“RFC”) to perform light
work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she could occasionally
balance, stoop, kneel, crawl and climb ramps and stairs but no climbing of ropes, ladders, or
scaffolds, and no crouching.
In addition, Plaintiff could occasionally reach overhead and
frequently reach in other directions; and could frequently handle, finger, and feel. There should
be no exposure to hazards such as heights or moving machinery. Plaintiff should have no
exposure to flashing lights or lights brighter than that typically found in an indoor work
environment such as an office setting or department store and no exposure to more than quiet
noise intensity level as that noise intensity level is defined in the DOT. There should be no
exposure to weather, extreme heat or cold, wetness, vibrations, or humidity; and no exposure to
atmospheric conditions such as smoke, fumes, odors, dusts, gases, or poor ventilation in excess
of that typically found in an indoor work environment such as an office setting or department store.
She was limited to simple, routine repetitive tasks and to making simple work related decisions.
She could not tolerate fast-paced production requirements as seen in assembly line type work.
She could tolerate infrequent changes in work setting defined as no more than two changes per
day. She would need to change positions during the work day, but this could be accommodated
by the normal morning, lunch, and afternoon breaks. Id. at 21.
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Plaintiff argues that this RFC finding is not supported by substantial evidence because,
despite finding her headaches to be a severe impairment, the ALJ failed to address the frequency,
unpredictability, and intensity of the headaches, including the resultant effect on her ability to work
on a regular and continuing basis, i.e., that she would be off-task or absent from work in excess of
what would be tolerated in competitive employment. See Pl.’s Br. [ECF No. 10] at 5-9. After
careful review of the record, including the documentary evidence, the ALJ’s opinion, and the
hearing testimony, I disagree.
An ALJ must base his RFC assessment on all of the relevant evidence of record. 20
C.F.R. §§ 404.1545(a), 416.945(a). In his opinion, the ALJ must provide sufficient explanation of
his final determination to provide the reviewing court with the benefit of the factual basis
underlying the ultimate disability finding. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
That is, the ALJ’s decision must allow the court to determine whether any rejection of potentially
pertinent, relevant evidence was proper. Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 203-04
(3d Cir. 2008); see also Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (the ALJ’s decision
should allow the reviewing court the ability to determine if “significant probative evidence was not
credited or simply ignored”).
Here, the ALJ found Plaintiff’s headaches to be a severe impairment, and spent over
twenty pages of his twenty-eight page Opinion discussing Plaintiff’s headache-related complaints
and associated record evidence.
(R. 16-41).
Contrary to Plaintiff’s argument, the ALJ’s
thorough discussion plainly recognized the episodic nature of her headaches, including their
alleged frequency, unpredictability, and intensity.
For example, in his Step 3 analysis, in
accordance with applicable guidance, the ALJ recognized Plaintiff’s migraines as an “episodic
disorder” analogous to nonconvulsive epilepsy for purposes of determining whether the
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headaches result in “significant interference with activity during the day.” Id. at 18.1 In so doing,
the ALJ represented that he had “carefully evaluated the documentary evidence for a detailed
description of the typical headache event pattern, including the premonitory symptoms, aura,
duration, intensity, accompanying symptoms, treatment, occurrence, and the effects on daily
activities.”
Id.
Citing record evidence, the ALJ concluded that Plaintiff “does experience
cervicalgia, myofascial pain syndrome, occipital neuralgia, and common migraine with intractable
features,” and that the record documented “her reports of hemiplegic symptoms.” Id. He found,
however, that “for reasons explained [elsewhere in his opinion],” the evidence did “not
demonstrate [that] the intensity, frequency, and severity of the migraines significantly interferes
with her activities of daily living.” Id. (citing Exs. 4E, 6E, 7E, 1F, 8F) (emphasis added).
The ALJ further noted Plaintiff’s testimony and documentation that she is largely
independent in activities of daily living if she is not suffering from a headache. Id. at 19, 22. He
also recounted her testimony regarding the alleged frequency and duration of her headaches and
her alleged limitations while suffering one.
Id. at 19-20, 22-25 (noting, inter alia, Plaintiff’s
testimony that she has headaches up to twice a week; that each headache can last for days to
weeks; and that she misses about 5 days of work per month).
The ALJ additionally recounted in
detail the medical evidence of record, including the statements Plaintiff made therein to various
medical providers regarding her headache symptoms. See id. at 25-39 (citing, inter alia, Exs.
1F, 2F, 3F, 4F, 5F, 6F, 7F, 8F, 9F, 10F). The ALJ likewise did not ignore the vocational expert’s
testimony that absences of one day a week, four times a month, would exceed an employer’s
tolerance for absences of one day a month, and that an individual who would be off task for 20%
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As support for this comparison, the ALJ cited National Question and Answer, Tracking No. 09-036, which
provides guidance regarding the evaluation of migraine headaches. The Q&A provides, inter alia, that
listing 11.03 (Epilepsy – nonconvulsive epilepsy) is the most analogous listing for considering medical
equivalence for migraine headaches at Step 3. A copy of this Q&A is attached to Plaintiff’s Reply Brief.
See ECF No. 15-1.
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of the workday in addition to normal breaks would not be able to maintain employment. (R. 41).
Rather, the ALJ expressly acknowledged that portion of the VE’s testimony, but concluded that,
“[a]s previously discussed, the substantial evidence does not support these additional limitations
to the claimant’s capacity to work.” Id.
In short, the ALJ did not fail to address Plaintiff’s testimony regarding the frequency,
duration, and severity of her migraine headaches.
Instead, the ALJ discussed Plaintiff’s
testimony and documentation on these points in detail, but concluded that such testimony was
only partially credible, and that the record did not support a finding of disabling limitations that
would preclude her from performing work on a full time basis within the parameters of his RFC
assessment. Accordingly, Plaintiff’s request that I order remand due to lack of discussion of
these issues is denied.
To the extent Plaintiff also challenges the ALJ’s credibility determination itself, her
arguments are similarly unpersuasive. It is well-established that the ALJ is charged with the
responsibility of determining a claimant’s credibility. See Baerga v. Richardson, 500 F.2d 309,
312 (3d Cir. 1974).
The ALJ’s 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 to the
individual’s statements and the reason for that weight.” S.S.R. 96-7p. Ordinarily, an ALJ's
credibility determination is entitled to great deference. See Zirnsak v. Colvin, 777 F.3d 607, 612
(3d Cir. 2014); Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.2003).
As the ALJ stated, he must follow a two-step process when assessing pain or other
symptoms: first, he must determine whether there is a medical impairment that could reasonably
be expected to produce the plaintiff’s pain or other symptoms; and, second, he must evaluate the
intensity, persistence, and limiting effects of the plaintiff’s symptoms to determine the extent to
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which they limit the plaintiff’s functioning. (R.21-22). Statements about pain alone, however, do
not establish a disability. 20 C.F.R. §§ 404.1529(a), 416.929(a). Allegations of pain must be
consistent with objective medical evidence and the ALJ must explain the reasons for rejecting
non-medical testimony. Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000).
In determining the limits on a claimant’s capacity for work, the ALJ will consider the entire
case record, including evidence from the treating, examining, and consulting physicians;
observations from agency employees; and other factors such as the claimant’s daily activities,
descriptions of pain, precipitating and aggravating factors, type, dosage, effectiveness and side
effects of medications, treatment other than medication, and other measures used to relieve the
pain.
20 C.F.R. §§ 404.1529(c), 416.929(c); S.S.R. 96-7p.
The ALJ also will look at
inconsistencies between the claimant’s statements and the evidence presented. 20 C.F.R. §§
404.1529(c)(4), 416.929(c)(4). Inconsistencies in a claimant's testimony or daily activities permit
an ALJ to conclude that some or all of the claimant's testimony about her limitations or symptoms
is less than fully credible. See Burns v. Barnhart, 312 F.3d 113, 129–30 (3d Cir. 2002).
After my own review of the record, I find that the ALJ followed the proper method to
determine Plaintiff’s credibility. As laid out in his decision, the ALJ considered the factors set
forth above and adequately explained the reasoning behind his credibility determinations. (R.
25-39).
Indeed, as previously discussed, the ALJ directly addressed Plaintiff’s testimony
regarding the frequency, duration, and intensity of her headache pain and did not reject her
allegations entirely. Rather, the ALJ found that Plaintiff’s statements regarding the intensity,
persistence, and limiting effects of her symptoms were partially credible and incorporated
numerous limitations related to Plaintiff’s headache-related complaints and triggers in his RFC
finding. See R. 21 (RFC finding containing limitations on, inter alia, climbing; reaching; handling;
fingering; feeling; exposure to heights, moving machinery, flashing or bright lights, exposure to
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more than quiet noise intensity level; and various stress-related limitations).2 Nevertheless, the
ALJ discussed the fact that Plaintiff’s statements concerning the severity and intensity of her
migraine symptoms and their impact on her ability to perform activities of daily living and to work
were more limiting than was established by the medical evidence, her reported daily activities,
and her contemporaneous statements to treating and examining sources. (R. 37). He also
noted that there were other inconsistent statements throughout the record that detracted from
Plaintiff’s credibility. Id.
The ALJ supported his credibility determination with substantial record evidence. For
example, the ALJ cited records from Plaintiff’s treating providers indicating that the medication
management prescribed by the pain specialists was effective in reducing the frequency and
severity of Plaintiff’s headaches and migraines. (R. 37-38, citing Exs. 4F, 8F). He also noted
medical records showing that increases in Plaintiff’s headaches corresponded with periods when
Plaintiff reduced or stopped taking her prescribed medications. (R. 38). The ALJ further cited
evidence that Plaintiff was not compliant with following the medical recommendations for treating
her migraine conditions except for the medication regimen. (R. 27, 38, citing Exs. 4F, 8F). Such
recommended treatment options included physical therapy, chiropractic therapy, injection
therapy, the use of omega 3 fatty acids, and activity modification. Id. Records from Plaintiff’s
mental health therapist similarly noted that Plaintiff “was not receptive to suggestions regarding
ways to cope with her difficulties,” and “seemed to have excuses as to why each suggestion
would not work.” (R. 465). See R. 33, 38, citing Exs. 9F, 10F. As the ALJ pointed out, the
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These limitations contradict Plaintiff’s argument that the only headache-related limitations contained in the
ALJ’s RFC finding were restrictions on exposure to flashing lights and noise levels. [ECF No. 10, at 8].
As the ALJ noted, his RFC finding also encompasses other triggers supported by the record evidence,
including activity, stress, and movement of Plaintiff’s upper extremities. See R. 21, 35 (noting that the RFC
addresses the identified aggravating pain factors of activity, work stress, and repetitive use of the upper
extremities).
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therapist would not complete disability benefits paperwork when requested by Plaintiff, and
referred Plaintiff to a psychiatrist regarding the same. (R. 38, Ex. 9F). Plaintiff never scheduled
an appointment with the psychiatrist and stopped her therapy sessions after that time. Id.
Other evidence included the functional assessment determinations of consultative examiner
Elizabeth Dunmore, M.D. (Ex. 7F), and the State agency medical consultant (Exs. 2A, 4A), both of
whom concluded that Plaintiff could perform the demands of light work despite her migraine
headaches.
(R. 31-32, 35). 3
As the ALJ explained, the record evidence also failed to
corroborate Plaintiff’s testimony that she presents to the emergency room approximately twice a
month for severe migraines. (R. 38). Instead, the only evidence of an ER visit during the
claimed disability period was a record of a visit in August 2012 for neck stiffness upon waking that
morning. (R. 38, citing Ex. 11F).
Regarding Plaintiff’s activities of daily living, the ALJ noted that, in addition to holding
down a part-time job even with untreated headaches (as well as a full-time job during much of the
period she was treated for headaches at the pain clinic), Plaintiff reported being able to perform
household chores, care for her dogs, drive, sit through a movie, mow the lawn, prepare meals,
shop, handle money, and socialize on Facebook.
(R. 24, 38).
The ALJ concluded that
Plaintiff’s testimony of her current capabilities and her reported activities of daily living also
substantiated his assessment that she retained the functional capacity for light work activity as
limited by his RFC finding. (R. 38-39). Plaintiff’s argument that the ALJ erroneously failed to
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None of Plaintiff’s treating providers opined that Plaintiff was unable to work due to her migraine
headaches. Indeed, more than one provider declined Plaintiff’s request to complete social security
disability paperwork. (R. 29, 32, 37 & Exs. 4F, 9F, 10F). The ALJ further noted that although Plaintiff’s
pain management specialists did not issue an opinion regarding Plaintiff’s capacity to work, the RFC was
consistent with their clinical findings and the medication treatment provided for her cervicalgia, myofascial
pain syndrome, occipital neuralgia, and migraines given that Plaintiff was working a full-time and part-time
job during the bulk of the treatment period and that the RFC accommodated Plaintiff’s identified headache
triggers. (R. 35 & Ex. 8F).
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take into account that she could not perform these daily activities when having a headache is
unpersuasive. As set forth above, the ALJ did not ignore Plaintiff’s testimony regarding the
frequency, severity, and intensity of her headaches and their impact on her ability to perform
activities of daily living. Rather, he acknowledged the testimony but found that it was more
limiting than and/or inconsistent with the medical records and other record evidence.
Plaintiff’s argument that the ALJ failed to favorably consider her long work history likewise
is not fatal to his credibility analysis. As an initial matter, contrary to Plaintiff’s assertions, the ALJ
did not impermissibly “hold her work history against her” by mentioning her part-time work as
indicative of an ability to work. A claimant’s ability to maintain part-time employment is a factor
relevant to whether she is disabled. See Miller v. Comm’r of Soc. Sec., 524 F. App’x 191, 194
(6th Cir. 2013) (citing applicable regulations). Further, the ALJ did not fail to account for Plaintiff’s
long work history. He acknowledged that history in his opinion and agreed Plaintiff could not
perform any past relevant work. (R. 23, 39). As set forth above, the ALJ did not discount
Plaintiff’s testimony regarding her pain and other symptoms in its entirety. Rather, the ALJ found
that testimony partially credible, and, in so doing, acknowledged that pain is subjective and that
Plaintiff experienced some pain and discomfort secondary to her migraines and associated
conditions. (R. 25, 37). Indeed, the ALJ’s RFC finding contained numerous restrictions to
accommodate Plaintiff’s subjective complaints of pain, headache symptoms, and other triggers.
(R. 21). To the extent Plaintiff alleged even greater limitations or symptoms, the ALJ properly
explained and supported why that testimony was not fully credible.
In short, this is not a case where the ALJ failed to discuss Plaintiff’s limitations or his
reasons for his RFC finding and credibility determinations, thus precluding meaningful review.
To the contrary, the ALJ thoroughly and thoughtfully addressed these issues, the associated
record evidence, and his conclusions regarding the same. As set forth herein, the ALJ’s findings
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are supported by substantial evidence. Plaintiff’s disagreement or dissatisfaction with these
findings is not cause for remand.
III. CONCLUSION
For all of the foregoing reasons, Defendant’s Motion for Summary Judgment is granted
and Plaintiff’s Motion for Summary Judgment is denied. An appropriate Order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MELLONY LEE NEWCOMER,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 14-161J
AMBROSE, Senior District Judge
ORDER OF COURT
AND NOW, this 20th day of April, 2015, after careful consideration of the submissions of
the parties and for the reasons set forth in the Opinion accompanying this Order, it is ordered that
it is ordered that Defendant’s Motion for Summary Judgment (Docket No. 11) is GRANTED, and
Plaintiff’s Motion for Summary Judgment (Docket No. 9) is DENIED.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
U.S. Senior District Judge
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