Stacy Butler Dawson v. Carolyn W. Colvin
Filing
18
MEMORANDUM DECISION AND ORDER plaintiffs motion to reverse and remand this case for further administrative proceedings is GRANTED, and this case is REVERSED andREMANDED. Signed by Judge Pamela A. Mathy. (rf)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
STACY BUTLER DAWSON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
5
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5 CIVIL NO. SA-15-CV-761-PM
5
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5
5
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MEMORANDUM DECISION AND ORDER
Pursuant to the consent of the parties in the above-styled and numbered cause of action to
trial by the undersigned United States Magistrate Judge,1 and consistent with the authority vested
in the United States Magistrate Judges under the provisions of 28 U.S.C. § 636(c)(1) and
Appendix C, Rule 1(i) of the Local Rules for the Assignment of Duties to United States
Magistrate Judges in the Western District of Texas, the following memorandum decision and
order is entered.
I. JURISDICTION
The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II. ADMINISTRATIVE PROCEEDINGS
This is an action to review a decision of the Commissioner of the Social Security
Administration under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Plaintiff Stacy
Butler Dawson initiated this action pursuant to 42 U.S.C. § 405(g) seeking review of the
determination of Carolyn W. Colvin, the acting Commissioner of the Social Security
1
Docket nos. 11, 14, 15.
Administration, that plaintiff is not disabled and not entitled to receive disability insurance
benefits (“DIB”).
Plaintiff filed an application for Title II DIB on October 14, 2014, alleging disability
since August 29, 2013.2 The Social Security Administration (“SSA”) denied DIB initially on
November 20, 2014, and upon reconsideration on January 8, 2015.3 On April 14, 2015,
Frederick Gatzke, an administrative law judge (“ALJ”), held a hearing and considered plaintiff’s
claims de novo.4 Plaintiff was represented by an attorney at the hearing, and the ALJ received
testimony from plaintiff as well as from vocational expert Robert Grant (“VE”).5 The ALJ issued
a written opinion on April 29, 2015, denying benefits and finding that plaintiff had not been
disabled from August 29, 2013 through the date of the decision.6 Plaintiff requested Appeals
Council review of the ALJ’s decision, and on July 6, 2015, the Council concluded that no basis
existed to grant review.7 Thus, the ALJ’s determination became the final decision of the
Commissioner. Plaintiff now appeals that determination.
2
Transcript (“TR”) at 157-160.
3
Id. at 84-88, 91-93.
4
Id. at 40-59.
5
Id. at 42-58.
6
Id. at 22-33.
7
Id. at 1-5.
2
III. ISSUES
1.
Whether substantial evidence supports the ALJ’s decision that plaintiff was not
disabled under the Social Security Act.
2.
Whether the decision comports with relevant legal standards.
IV. STANDARD OF REVIEW
In reviewing the Commissioner’s decision, the Court is limited to a determination of
whether the decision is supported by substantial evidence and whether the Commissioner applied
the proper legal standards in evaluating the evidence.8 Substantial evidence is more than a
scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.9 It must do more than create a suspicion of the
existence of the fact to be established, but “no substantial evidence” will be found only where
there is a conspicuous absence of credible choices or no contrary medical evidence.10
If the Commissioner’s findings are supported by substantial evidence, they are conclusive
and must be affirmed.11 “The court does not re-weigh the evidence in the record, try the issues de
novo, or substitute its judgment for the Commissioner’s, even if the evidence weighs against the
Commissioner’s decision.”12 Conflicts in the evidence are for the Commissioner to resolve.13
8
Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
9
Id.
10
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988).
11
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995).
12
Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000).
13
Id.
3
Four elements of proof are weighed in determining if substantial evidence supports the
Commissioner’s determination: (1) objective medical facts, (2) diagnoses and opinions of
treating and examining physicians, (3) the claimant’s subjective evidence of pain and disability,
and (4) the claimant’s age, education and work experience.14
V. ALJ’S FINDINGS AND PLAINTIFF’S CONTENTIONS
A.
Summary of the ALJ’s Decision
The ALJ stated the issue was whether plaintiff was disabled pursuant to sections 216(i)
and 223(d) of the Social Security Act.15 The ALJ defined disability as the inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment, or combination of impairments, that could be expected to result in death, or that has
lasted, or can be expected to last, for a continuous period of not less than twelve months.16 The
ALJ stated there was an additional issue with respect to plaintiff’s claim for a period of disability
– whether the insured status requirements of sections 216(i) and 223 were met.17 The ALJ found
plaintiff’s earnings record showed plaintiff had acquired sufficient quarters of coverage to remain
insured through December 31, 2018.18 Thus, according to the ALJ, plaintiff needed to establish
disability on or before that date to be entitled to a period of disability and DIB.19
14
Martinez, 64 F.3d at 174.
15
TR at 22.
16
Id.
17
Id.
18
Id.
19
Id.
4
The ALJ next explained the five-step sequential evaluation process for determining
whether an individual is disabled, and noted that the steps are to be followed in order.20 The ALJ
then analyzed whether plaintiff met the criteria for disability pursuant to these steps and made
findings of facts and conclusions of law.21
Step 1 findings. The ALJ determined plaintiff had not engaged in substantial gainful
activity since the alleged onset date of August 29, 2013.22 The ALJ stated “claimant’s earnings
record shows that she earned $13,716 in the first quarter of 2014; however, it appears these are
part of claimant’s distributions from her military retirement.”23
Step 2 findings. The ALJ found plaintiff had the severe impairments of cervical
degenerative joint disease, headaches, and an affective disorder with depression.24 The ALJ
stated “the evidence of record shows that claimant has hypertension that is controlled with
medications”25 and “since claimant’s hypertension did not significantly limit her physical ability
to perform work or related activities it was determined by the [ALJ], that hypertension was a
20
Id. at 23-24 (citing 20 C.F.R. §§ 404.1509, 404.1512(g), 404.1520(a)-(g), 404.1521,
404.1525, 404.1526, 404.1545, 404.1560(b) and (c), 404.1565, 404.1572(a) and (b), 404.1574,
404.1575 and Social Security Rulings (“SSR”) 85-28, 96-3p, 96-4p, 96-8p).
21
Id. at 24-33.
22
Id. at 17 (citing 20 C.F.R. § 404.1571, et seq.).
23
Id. at 24 (citing Ex. B3D2).
24
Id. (citing 20 C.F.R. § 404.1520(c)).
25
Id. (citing Ex. B8F31).
5
‘non-severe’ impairment”26 and the ALJ was “not addressing the impairments in [its] decision.”27
Step 3 findings. The ALJ found that plaintiff did not have an impairment or combination
of impairments that met or medically equaled any of the impairments listed in “20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).”28 The ALJ expressly
considered listing 1.02B, stating “there is no evidence of involvement of one major peripheral
joint in each upper extremity” “resulting in an inability to perform fine and gross movement
effective[ly], as defined in 1.00B2c.”29
The ALJ also stated “[t]here is no specific listing for migraine headaches, but the
claimant’s medical records do[] not document any neurological deficits related to the headaches”
and “her medical treatment notes indicate she is fully oriented to time, place, and person.”30 The
ALJ concluded, “[i]n short, the record does not document persisting impairments from the
migraine headaches that equals any listed impairment.”31
The ALJ found the “severity of the claimant’s mental impairment does not meet or
medically equal the criteria of listing 12.04.”32 The ALJ stated it “considered whether the
‘paragraph B’ criteria were satisfied,” and to “satisfy the ‘paragraph B’ criteria, the mental
26
Id. (citing 20 C.F.R. 416.921 and SSR 96-3p).
27
Id. at 24.
28
Id. at 25.
29
Id.
30
Id.
31
Id.
32
Id.
6
impairment must result in at least two of the following: marked restriction of activities of daily
living; marked difficulties in maintaining social functioning; marked difficulties in maintaining
concentration, persistence or pace; or repeated episodes of decompensation, each of extended
duration.”33 The ALJ determined “[i]n activities of daily living, the claimant has no restriction,”
“[i]n social functioning, the claimant has mild difficulties,” and “with regard to concentration,
persistence or pace, the claimant has mild difficulties.”34 The ALJ stated the “claimant has not
experienced any episode of decompensation, each of extended duration.”35 The ALJ found
“[b]ecause the claimant’s mental impairment does not cause at least two ‘marked’ limitations or
one ‘marked’ limitation and ‘repeated’ episodes of decompensation, each of extended duration,
the ‘paragraph B’ criteria are not satisfied.”36 The ALJ also found “the evidence fails to establish
the presence of the ‘paragraph C’ criteria.”37
The ALJ noted “the limitations identified in the ‘paragraph B’ criteria are not a residual
functional capacity assessment but are used to rate the severity of mental impairments at steps 2
and 3 of the sequential evaluation process” and “the mental residual functional capacity
assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed
assessment by itemizing various functions contained in the broad categories found in paragraph
33
Id.
34
Id. (emphasis in original).
35
Id.
36
Id.
37
Id. at 26.
7
B of the adult mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p).”38
The ALJ concluded “the following residual functional capacity assessment reflects the degree of
limitation the undersigned has found in the ‘paragraph B’ mental functional analysis.”39
Residual functional capacity finding. Having determined that plaintiff suffered from
severe impairments that did not meet or equal a listed impairment, and before considering step 4,
the ALJ proceeded to assess plaintiff’s RFC.40 The ALJ stated that he had considered all of
plaintiff’s symptoms and the extent to which her symptoms could “reasonably be accepted as
consistent with the objective medical evidence and other evidence, based on the requirements of
20 C.F.R. § 404.1529 and SSRs 96-4p and 96-7p.”41 The ALJ confirmed that he had considered
the opinion evidence, as required by 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 063p.42 The ALJ also indicated that he had used the two-step process applicable to RFC
determinations.43 Under that process, the ALJ must first determine “whether there is an
underlying medically determinable physical or mental impairment(s) . . . that could reasonably be
expected to produce the claimant’s pain or other symptoms.”44 Second, the ALJ “must evaluate
the intensity, persistence, and limiting effects of the claimant’s symptoms to determine the extent
38
Id.
39
Id.
40
Id. at 26-32.
41
Id. at 26.
42
Id.
43
Id.
44
Id.
8
to which they limit the claimant’s functioning.”45 The ALJ noted that “whenever statements
about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence,” the ALJ “must make a finding on the credibility of
the statements based on a consideration of the entire case record.”46
The ALJ assessed plaintiff with the following RFC:
[C]laimant has the [RFC] to lift and carry 20 pounds occasionally, and 10 pounds
frequently; stand and walk 6 hours in an 8-hour workday; sit briefly for a few
minutes (every 45 minutes to an hour); occasional stopping, crouching and
kneeling; and no more than frequent reaching and handling. Additionally,
claimant is limited to detailed, but not complex work (20 CFR § 404.1567(b)).47
In support of this assessment, the ALJ first considered plaintiff’s testimony that: “she is 49 years
old with some college hours;” “she last worked on January 16, 2015 as a Supply Sergeant for the
Army;” and “she stopped working due to neck pain, back pain, anxiety and depression related to
PTSD.”48 The ALJ next considered plaintiff’s testimony that she: “is supposed to start real estate
classes in June;” “is currently receiving unemployment benefits;” “started vocational rehab in
November;” “has been going to job fairs and has been applying for jobs as a contractor,
marketing, data entry and real estate;” and “would have taken a job if one had been offered to her
and she would have stayed in the Army if they had [not] boarded her out.”49 The ALJ also
considered plaintiff’s testimony that she: “has chronic pain in the neck and back and cannot sit or
45
Id. at 26-27.
46
Id. at 27.
47
Id. at 26.
48
Id. at 27.
49
Id.
9
stand for longer than 30 minutes;” “has had neck surgery and was recommended to have a lower
back fusion;” “has had injections with numbing for about three months and has tried different
medications;” “rated her pain at 7/10 to the lumbar area;” “has migraines about 3-4 times a
week,” during which “she stays in a darkened room and turns off any sounds;” “had right hip
surgery and she cannot walk for long distances;” and “has incontinence.”50 The ALJ considered
plaintiff’s testimony that she “stated she is not sure that she could maintain work.”51 The ALJ
concluded that “the claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible.”52
The ALJ’s decision includes detailed findings discussing claimant’s cervical degenerative
joint disease.53 These findings have not been challenged by plaintiff.54 The ALJ concluded
“[d]espite the relatively serious problems reported by the claimant, consulting physicians did not
observe any particular difficulties getting about or functioning during the examinations” and
“[t]he record does not contain any opinions from treating or examining physicians indicating that
the claimant is disabled or even has limitations greater than those determined in this decision.”55
Further, the ALJ determined “[g]iving the claimant the benefit of the doubt, the undersigned has
50
Id.
51
Id.
52
Id.
53
Id. at 27-30.
54
Docket no. 16.
55
TR at 30.
10
taken claimant’s complaints and has limited her to sitting briefly for a few minutes (every 45
minutes to an hour); occasional stooping, crouching and kneeling, and to no more than frequent
reaching and handling.”56
The ALJ’s decision includes detailed findings discussing claimant’s affective disorder
with depression.57 These findings have not been challenged by plaintiff.58 The ALJ concluded
“[c]laimant’s depression has also been considered and the undersigned has limited the claimant
to detailed, but not complex work.”59 The ALJ determined “the claimant has been prescribed and
has taken appropriate medications for depression, which weights in the claimant’s favor with the
medical records revealing that the medications have been relatively effective in controlling the
claimant’s symptoms.”60 The ALJ stated “[t]he record indicates no significant reactions or side
effects to the claimant’s prescriptive treatments” and “there is no indication the claimant has
required any emergency room treatment or inpatient hospitalization for any mental health
problem [or] any mental health counseling or therapy.”61
The ALJ’s decision includes the following findings regarding claimant’s headaches: (1)
claimant testified she “has migraines about 3-4 times a week; she stays in a darkened room and
56
Id.
57
Id. at 30-31.
58
Docket no. 16.
59
TR at 31.
60
Id. (citing Ex. 11F3, 8).
61
Id.
11
turns off any sounds;” and “she is not sure she could maintain work;”62 (2) claimant saw Vudhi
Slabisak, M.D. on September 24, 2013 and reported “[s]he had tenderness over the lumbar
vertebra and over the thoracic vertebra” and “the pain was causing headaches and was interfering
with her job duties;”63 and (3) claimant was seen by clinician David Ellis on September 17, 2014
“for headache, back pain, neck pain, hip pain, and foot pain,” and “was assessed with cervical
spondylosis and migraine headaches.”64
The ALJ considered that claimant was awarded disability through the VA: (1) 20%
disability “for degenerative arthritis of the cervical spine with cervical strain and herniated
cervical disc; status post ACDF of C4-C6 and cervical keloid;” (2) “10% disability for
gastroesophageal reflux disease with ulcers;” (3) “10% for left lower extremity radiculopathy
diagnosed as left lateral recess stenosis;” and (4) “10% disability for an adjustment disorder with
mixed anxiety and depressed mood.”65 The ALJ stated that “a determination made by another
agency that an individual is disabled is not binding on the Administration”66 and found “that the
medical evidence and other evidence do not support the claimant’s allegations as credible.”67
The ALJ also considered opinion evidence.68 The ALJ “accorded less weight to the
62
TR at 27.
63
Id. at 27-28.
64
Id. at 30.
65
Id. at 31 (citing Ex. B6F3).
66
Id.
67
Id. at 31-32.
68
Id. at 32.
12
residual functional assessment by Leigh McCary, M.D., who concluded the claimant’s affective
disorders were non-severe.”69 The ALJ determined the evidence at the hearing showed
claimant’s “impairments caused more than a minimal functional limitation.”70 The ALJ did give
“some weight to Dr. McCary[’s] assessment that claimant could perform light work; however the
undersigned has placed some limitations on claimant functioning.”71 The ALJ also considered
the opinion of state agency physician Brian Harper, M.D., who “also concluded that claimant
could perform light work.”72
Step 4 findings. The ALJ determined plaintiff “is unable to perform any past relevant
work (20 CFR 404.1565).”73 The VE testified plaintiff had past relevant work as a home health
aide, “classified by the Dictionary of Occupational Titles as a medium, Specific Vocational
Preparation (“SVP”) 3 job;” dining room attendant, classified as a medium, SVP 2 job; bus
driver, classified as a medium, SVP 4 job, and stock clerk, classified as a heavy, SVP 4 job.74
Step 5 findings. At step five, the ALJ stated that plaintiff was born on October 27, 1965,
and was 47 years old, which is defined as a younger individual age 18-49, on the alleged
disability onset date.75 He noted that plaintiff has “at least a high school education with some
69
Id.
70
Id.
71
Id. (citing Ex. B1A).
72
Id. (citing Ex. B3A).
73
Id. at 32.
74
Id.
75
Id. (citing 20 C.F.R. § 404.1563).
13
college hours,” and plaintiff is able to communicate in English.76 The ALJ stated that
transferability of job skills was “not material” because “applying the Medical-Vocational Rules
as a framework supports a finding of ‘not disabled,’ whether or not the claimant has transferable
job skills.”77 Considering plaintiff’s age, education, work experience, and RFC, the ALJ
determined “there are jobs that exist in significant numbers in the national economy that the
claimant can perform.”78
The ALJ noted that, in determining whether plaintiff could make a successful
adjustment to other work, he was required to consider plaintiff’s RFC, age, education, and work
experience “in conjunction with the Medical-Vocational Guidelines, 20 C.F.R. Part 404,
Appendix 2.”79 The ALJ further explained if the plaintiff had the RFC to perform the full range
of light work, “a finding of ‘not disabled’ would be directed by Medical -Vocational Rule
202.21.”80 But, the ALJ found “the claimant’s ability to perform all or substantially all of the
requirements of this level of work has been impeded by additional limitations.”81 The ALJ heard
testimony from the VE that claimant “would be able to perform the requirements of
representative occupations such as a parking lot attendant” and a garment tag stringer, jobs
76
Id. (citing 20 C.F.R. § 404.1564).
77
Id. (citing SSR 82-41; 20 C.F.R. Part 404, Subpart P, Appendix 2).
78
Id. (citing 20 C.F.R. §§ 404.1569, and 404.1569(a)).
79
Id. at 32.
80
Id. at 33.
81
Id.
14
“classified by the Dictionary of Occupational Titles as light, SVP 2 type jobs.”82 The ALJ
determined “[p]ursuant to SSR 00-4p, the undersigned has determined that the vocational
expert’s testimony is consistent with the information contained in the Dictionary of Occupational
Titles.”83 Accordingly, the ALJ found that plaintiff had not been under a disability, as defined by
the Social Security Act, from August 29, 2013, through the date of the decision,84 and was “not
disabled under sections 216(i) and 223(d) of the Social Security Act.”85
B.
Plaintiff’s Claim
On January 12, 2016, plaintiff filed a brief seeking review of the Commissioner’s
decision and asking the Court to reverse and remand to the Commissioner for further
proceedings.86 Plaintiff argues “[d]espite the finding that Plaintiff’s migraine headaches are a
‘severe impairment,’ the ALJ failed to consider any related medical listing at step 3, and included
no headache-related limitations in the RFC, in clear contravention of unambiguous Agency
policy.”87 On February 19, 2015, the Commissioner filed a responsive brief, arguing, in sum, that
the ALJ’s decision is supported by substantial evidence.88
82
Id.
83
Id.
84
Id. (citing 20 C.F.R. § 404.1520(g)).
85
Id.
86
Docket no. 16.
87
Id. at 8.
88
Docket no. 18.
15
VI. ARGUMENTS and CONCLUSIONS OF LAW
In this section the Court will discuss in greater detail the applicable legal standards before
applying those standards to plaintiff’s specific claims as raised in her brief.
A.
Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not attained
retirement age, has filed an application for benefits, and is under a disability is entitled to receive
disability insurance benefits.89 Each aged, blind or disabled individual who meets certain income
and resources limitations is entitled to receive supplemental security income.90 The term
“disabled” or “disability” means 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.91 A person shall be determined to be under a disability only if her physical or
mental impairment or impairments are of such severity that she is not only unable to do her
previous work but cannot, considering her age, education, and work experience, engage in any
other kind of substantial gainful work existing in significant numbers in the national economy,
regardless of whether such work exists in the immediate area in which she lives, or whether a
specific job vacancy exists for her, or whether she would be hired if she applied for work.92
89
42 U.S.C. § 423(a)(1).
90
Id. § 1382(a).
91
Id. § 1382c(a)(3)(A).
92
Id. § 1382c(a)(3)(B).
16
B.
Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be
evaluated according to a five-step process.93 A finding that a claimant is disabled or not disabled
at any point in the process is conclusive and terminates the Commissioner’s analysis.94 The first
step involves determining whether the claimant is currently engaged in substantial gainful
activity. If so, the claimant will be found not disabled regardless of her medical condition or her
age, education, and work experience. The second step involves determining whether the
claimant’s impairment is severe. If it is not severe, the claimant is deemed not disabled. In the
third step, the Commissioner compares the severe impairment with those on a list of specific
impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without
considering her age, education, and work experience. If the impairment does not meet or equal a
listed impairment, the Commissioner, in the fourth step, reviews the claimant’s RFC and the
demands of her past work. If she can still do this kind of work, she is not disabled. If she cannot
perform her past work, the Commissioner moves to the fifth and final step of evaluating the
claimant’s ability, given her residual capacities and her age, education, and work experience, to
do other work. If she cannot do other work, she will be found to be disabled. The claimant bears
the burden of proof at the first four steps of the sequential analysis.95 Once she has shown that
she is unable to perform her previous work, the burden shifts to the Commissioner to show that
93
20 C.F.R. §§ 404.1520 and 416.920.
94
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
95
Id.
17
there is other substantial gainful employment available that claimant is capable of performing.96
If the Commissioner adequately points to potential alternative employment, the burden then
shifts back to the claimant to prove that she is unable to perform the alternative work.97
C.
Plaintiff’s Claim in Appealing the ALJ’s Decision
Plaintiff argues “[d]espite finding that Plaintiff’s migraine headaches are a ‘severe
impairment,’ the ALJ failed to consider any related medical listing at step 3, and included no
headache-related limitations in the RFC, in clear contravention of unambiguous Agency
policy.”98 Specifically, plaintiff asserts the ALJ should have applied Listing 11.03, which “is
most analogous to the consideration of headaches because of its consideration of ‘alteration of
awareness or loss of consciousness’ and/or ‘significant interference with activity during the
day.’”99 In response, the Commissioner asserts that “the ALJ correctly determined that Plaintiff
did not satisfy all the specified criteria of any Listing” and even if “the ALJ should have
specifically cited Listing 11.03, any such omission cannot be harmful in light of the absence of
medical evidence that could satisfy Plaintiff’s burden to present evidence of disabling limitations
during the time period in question.”100
At step three, the regulatory test for disability is met if a claimant’s impairments fully
satisfy the severity criteria for an impairment listed in Appendix 1 to Subpart P of Part 404 of the
96
Anderson v. Sullivan, 887 F.2d 630, 632 (5th Cir. 1989).
97
Id. at 632-33.
98
Docket no. 16 at 8.
99
Id. at 10.
100
Docket no. 17 at 5.
18
regulations.101 If the claimant’s impairment or combination of impairments meets or equals a
listed impairment and meets the duration requirement, the disability inquiry ends, and the
claimant is entitled to benefits.102 If the claimant’s impairment is unlisted, to equal a listing, the
claimant’s unlisted impairment must be “at least equal in severity and duration to the criteria of
any listed impairment.”103 The claimant shows that her unlisted impairment is medically
“equivalent” to a listed impairment by presenting medical findings equal in severity to all the
criteria for the most analogous listed impairment.104
The ALJ is required to “discuss the evidence offered in support of [a claimant’s] claim
for disability and to explain why [the ALJ] found [the claimant] not be disabled at that step.”105
In Audler v. Astrue, the Fifth Circuit vacated and remanded an ALJ decision which failed to
explain why a claimant’s impairment did not meet or equal the criteria of a listed impairment at
step three.106 The ALJ’s step three finding was confined to one sentence:
The medical evidence indicates that the claimant has status post lumbar
laminectomy, cervical disc herniation, headaches and chronic neck and back pain,
101
20 C.F.R. § 404.1520(a)(4)(iii).
102
20 C.F.R. § 404.1520(d).
103
20 C.F.R. § 404.1526(a).
104
20 C.F.R. § 404.1526(b)(2) (“If you have an impairment(s) that is not described in
appendix 1, [The Social Security Administration] will compare [the claimant’s] findings with
those for closely analogous listed impairments. If the findings related to your impairment(s) are
at least of equal medical significance to those of a listed impairment, [The Social Security
Administration] will find that [the claimant’s] impairment(s) is medically equivalent to the
analogous listing”); Sullivan v. Zebley, 493 U.S. 521, 529–31, 110 S.Ct. 885 (1990).
105
Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (citing 42 U.S.C. § 405(b)(1)).
106
501 F.3d 446 (5th Cir. 2007).
19
impairments that are severe within the meaning of the Regulations but not severe
enough to meet or medically equal one of the impairments listed in Appendix 1,
Subpart P, Regulations No. 4.107
The Fifth Circuit stated “[t]he ALJ did not identify the listed impairment for which Audler’s
symptoms fail to qualify, nor did she provide any explanation as to how she reached the
conclusion that Audler’s symptoms are insufficiently sever to meet any listed impairment.”108
The Fifth Circuit found that such “a bare conclusion” was “beyond meaningful judicial review,”
and violated “the explicit provision of the Social Security Act requiring the ALJ to discuss the
evidence in support of a disability claim and explain the reasons for denial.”109
Here, the ALJ’s step three analysis was incomplete. The ALJ determined at step two that
claimant’s migraine headaches were a “severe impairment.”110 At step three, the ALJ was
required to determine if claimant’s migraine headaches met or equaled a listed impairment.111
The ALJ and plaintiff both state there is no specific listing for migraine headaches.112 Because
there is no listing for migraine headaches, the ALJ was required to compare his findings with
107
Id. at 448.
108
Id.
109
Id. (citing Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996); 42 U.S.C.
§ 405(b)(1)).
110
TR at 24.
111
20 C.F.R. § 404.1520(d).
112
TR at 25; Docket no. 16 at 9. Defendant does not explicitly state there is no specific
listing for migraines, but does not contest plaintiff’s representation there is no listing for
migraines, argument that when there is no listing, the ALJ must apply the most analogous listing,
or contention that Listing 11.03 is the most analogous listing. See docket no. 17 at 4.
20
those of a “closely analogous listed impairment[].”113 But, in discussing claimant’s headaches,
the ALJ failed to evaluate plaintiff’s headaches in relation to any specified listing.114 The ALJ
stated “[t]here is no specific listing for migraine headaches, but the claimant’s medical records
does not document any neurological deficits related to the headaches. Further, her medical
treatment notes indicate she is fully oriented to time, place, and person.”115 The ALJ then
concluded, “[i]n short, the record does not document persisting impairments from the migraine
headaches that equals any listed impairment.”116 As in Audler, the ALJ provided only a cursory
step three analysis of claimant’s headaches. The ALJ did not identify a listing for which
claimant’s symptoms failed to qualify, and thus, could not determine whether the impairment met
or medically equaled the severity of a listed impairment.117 Therefore, the ALJ’s statement that
“the record does not document persisting impairments from the migraine headaches that equals
any listed impairment” was conclusory.118 Consequently, as in Audler, the ALJ’s findings at step
three are too conclusory to be susceptible to meaningful review.119
Plaintiff contends claimant’s headaches should be analyzed pursuant to Listing 11.03, as
113
C.F.R. 20 § 404.1526(b)(2).
114
TR at 25. See Audler, 501 F.3d at 448.
115
TR at 25.
116
Id.
117
Audler, 501 F.3d at 448.
118
Id. See TR at 25.
119
See Audler, 501 F.3d at 448.
21
the most analogous listing.120 The Commissioner’s Program Operations Manual System
(“POMS”) identifies Listing 11.03 as being closely analogous to chronic migraine headaches.121
Under Listing 11.03, a person is disabled if he or she has:
nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented by
detailed description of a typical seizure pattern including all associated
phenomena, occurring more frequently than once weekly in spite of at least 3
months of prescribed treatment. With alteration of awareness or loss of
consciousness and transient postictal manifestations of unconventional behavior
or significant interference with activity during the day.122
Defendant appears to agree the ALJ never cited Listing 11.03, but argues “the ALJ correctly
determined that Plaintiff did not satisfy all the specified criteria of any Listing,” including Listing
11.03.123 Specifically, defendant argues:
The ALJ found that Plaintiff did not identify any medical documentation that she
experienced the disabling level of symptomatology described in this listing (Tr.
25). He further noted that her medical treatment notes shows that she was fully
oriented to time, place, and person (Tr. 25). Thus she did not experience
alteration of awareness or loss of consciousness as required by the Listing.124
120
Docket no. 16 at 10. Again, defendant does not argue Listing 11.03 is not the most
analogous, and applicable, listing or that claimant’s headaches should be analyzed pursuant to
any other specified listing. Docket no. 17.
121
POMS § DI 24505.015(B)(7)(b). Another Court in this division has discussed Listing
11.03 in connection with migraine headaches. See Peterson v. Astrue, No. SA 06 CA 0275 RF,
2007 WL 1093890, at *6 (W.D. Tex. Apr. 9, 2007). Additionally, plaintiff directs the Court to
SSA Q&A 09-036, which states “listing 11.03 (Epilepsy - nonconvulsive epilepsy) is still the
most analogous listing for considering medical equivalence.” Docket no. 16, exhibit 2. The
Commissioner does not present any argument or authority that the SSA Q&A 09-036 is inactive.
Docket no. 17. SSA Q&A 09-036 was also cited by the United States District Court for the
District of Colorado in Thomas v. Colvin, 69 F.Supp.3d 1174 (2014).
122
20 C.F.R. § 404, Subpart P, app. 1.
123
Docket no. 17 at 5.
124
Id.
22
Defendant’s conclusion that the ALJ must have applied Listing 11.03 based on the ALJ’s
minimal comments (specifically, plaintiff’s “medical records do[] not document any neurological
deficits related to the headaches” and plaintiff’s “medical treatment notes indicate she is fully
oriented to time, place, and person”125) is a fallacy. Although the comments may indicate the
ALJ considered Listing 11.03, the comments could also indicate the ALJ applied any number of
other Listings. For example, references to neurological deficits and orientation could be made by
an ALJ applying Listing 11.02—a listing defendant does not contend applies. Based on a review
of the entire record, the Court cannot conclude the ALJ analyzed plaintiff’s migraines in relation
to the correct listing. Therefore, the ALJ’s finding that plaintiff’s migraine headaches were not
medically equivalent to any listed impairment is not properly supported.126 Accordingly, the
Court is unable to determine that the ALJ’s decision is based on substantial evidence.127 In light
125
TR at 25.
126
Audler, 501 F.3d at 448.
127
Id. (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)). Defendant
“submits that substantial evidence” supports the ALJ’s decision, and argues “[e]ven if we assume
for the sake of argument that the ALJ should have specifically cited Listing 11.03, any such
omission cannot be harmful in light of the absence of any medical evidence that could satisfy
Plaintiff’s burden to present evidence of disabling limitations during the time period in
question.” Docket no. 17 at 5, 10. Defendant further asserts: “None of Plaintiff’s medical
sources found that she had debilitating headaches.” Id. at 6. Plaintiff presents a “summary of the
evidence” in support of her claims, which includes citations to her testimony and the record
regarding plaintiff’s migraines. Docket no. 16 at 2-7. The record also contains, for example, Dr.
Slabisak and clinician David Ellis’s notations regarding claimant’s headaches. TR at 28, 30.
Thus, the record does include some evidence of plaintiff’s migraines. It is the ALJ’s
responsibility to determine whether there is sufficient evidence of migraine headaches and
whether plaintiff’s impairment medically equals Listing 11.03. 20 C.F.R. § 404.1520. “The
court does not re-weigh the evidence in the record, try the issues de novo, or substitute its
judgment for the Commissioner’s, even if the evidence weighs against the Commissioner’s
decision.” Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). Conflicts in the evidence are for
the Commissioner to resolve. Id.
23
of this error, the case must be remanded so the Commissioner can evaluate claimant’s
impairments128 and make the necessary findings when determining whether the claimant is
disabled.129
VII. CONCLUSION
In sum, because the ALJ’s determination denying plaintiff disability benefits is
unsupported by substantial evidence, plaintiff’s motion to reverse and remand this case for
128
The record does not contain expert opinion evidence on the issue of medical
equivalence to an impairment in the Listings. Although “[t]he administrative law judge or
Appeals Council is responsible for deciding the ultimate legal question whether a listing is met or
equaled,” “longstanding policy requires that the judgment of a physician (or psychologist)
designated by the Commissioner on the issue of equivalence on the evidence before the
administrative law judge or the Appeals Council must be received into the record as expert
opinion evidence and given appropriate weight.” SSR 96-6p, 1996 WL 374180, at *3 (SSA July
2, 1996). “The signature of a State agency medical or psychological consultant on an SSA-831U5 (Disability Determination and Transmittal Form) or SSA-832-U5 or SSA-833-U5 (Cessation
or Continuance of Disability or Blindness) ensures that consideration by a physician (or
psychologist) designated by the Commissioner has been given to the question of medical
equivalence at the initial and reconsideration levels of administrative review.” Id. The Social
Security Administration website appears to indicate SSA-831-U5 is analogous to SSA-831-U3.
See DI 43520.070 Exhibits, Exhibit F–SSA-831-U5 “Disability Determination and Transmittal”
(available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0443520070) (last accessed Mar. 1,
2016). Form SSA-831-U3 is also titled “Disability Determination and Transmittal.” Id. The
record contains SSA-831-U3 forms completed by Leigh McCary, M.D. and Brian S. Harper,
M.D. TR 70, 83. However, neither form addresses plaintiff’s migraines or assesses whether
plaintiff’s complaints were medically equivalent to Listing 11.03, even though both Dr. McCary
and Dr. Harper reference claimant’s migraines and claimant’s use of migraine medication. TR at
67, 78. Thus, the record does not contain “the judgment of a physician (or psychologist)
designated by the Commissioner on the issue of equivalence.” SSR 96-6p, 1996 WL 374180, at
*3. See Thomas v. Colvin, 69 F.Supp.3d 1174, 1178-79 (2014).
129
Plaintiff also argues “the RFC finding fails to include related limitations which even
arguably account for work-related limitations caused by headaches.” Docket no. 16 at 8.
Because the Court has determined that remand is necessary, it will not address the issue. But, if
the ALJ reaches Step Four, the RFC findings should discuss any limitations relating to migraine
headaches. 20 C.F.R. § 1520(4)(iv); 20 C.F.R. § 1545.
24
further administrative proceedings130 is GRANTED, and this case is REVERSED and
REMANDED; the Clerk may enter judgment accordingly.
ORDERED, SIGNED and ENTERED this 1st day of March, 2016.
______________________________________
PAMELA A. MATHY
UNITED STATES MAGISTRATE JUDGE
130
Docket no. 16.
25
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