Troia v. Commissioner of Social Security

Filing 24

ORDER ADOPTING 23 REPORT AND RECOMMENDATION. Plaintiff's 15 Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. Defendant's 17 Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. This mailer is hereby REMANDED to the ALJ for further proceedings consistent with this opinion. Signed by District Judge John Preston Bailey on 5/8/24. (lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MELISSA L. TROIA,
Plaintiff,
v.

CIVIL ACTION NO.: 5:23-CV-308
Judge Bailey

ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before this Court is the Report and Recommendation (“the R&R”) [Doc.
23] entered by United States Magistrate Judge James P. Mazzone on April 19, 2024.
Therein, the magistrate judge concluded that Plaintiffs Motion for Summary Judgment
[Doc. 15] should be granted in part and denied in part, and Defendant’s Motion for
Summary Judgment [Doc. 17] should be granted in part and denied in part. Further, the
R&R advised the parties that any objections to the R&R were due within fourteen (14)
days after service. [Doc. 23 at 16—17]. No parties filed objections within the prescribed
timeframe. Accordingly, this matter is ripe for adjudication. For the reasons contained
herein, this Court will adopt the R&R in its entirety.
I.

Introduction
This action arises out of Plaintiffs application for Disability Insurance Benefits.

After considering the parties’ briefs, the administrative record, the applicable law, and the
Court file, the undersigned is satisfied that oral argument would not substantially aid in

the preparation of this Order. Accordingly, the undersigned would conclude that this
matter should be remanded as set forth more fully below.1
II.

FactuallProcedural History
Plaintiff filed an application for Disability Insurance Benefits on May 25, 2021,

alleging disability beginning on September 5, 2019. R. 223~234.2 Plaintiffs claim was
denied initially and upon reconsideration. R. 143-1 46; R. 147. An administrative hearing
was held on December 15, 2022. R. 40-86. On January 11, 2023, the AU (Administrative
Law Judge, Karen Kostol) issued an unfavorable decision. R. 7-26. The Appeals Council
denied Plaintiffs request for review, making the AU’s decision the final decision of the
Commissioner. R. 1-6. Plaintiff then filed the instant action. [Doc. 1].
III.

AU Decision
A. The Five-Step Evaluation Process
To be disabled under the Social Security Act, a claimant must meet the following

criteria:
An individual shall be determined to be under a disability 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.... ‘[W]ork which exists in the national economy’ means work which
exists in significant numbers either in the region where such individual lives
or in several regions of the country.

This court extends its gratitude to the magistrate judge for preparing an extensively sound R&R. Given
the detailed background and legal analysis often present in the applications for Disability Insurance Benefits
matters, this Court recognizes the extensive research and drafting undertaken by the magistrate judge in
his preliminary adjudication. Accordingly, this Court has largely plagiarized the R&R herein.
2 Plaintiff amended her alleged onset date to April 24, 2020, at the Administrative Hearing.
1

2

42 U.S.C.

§ 423(d)(2)(A). The Social Security Administration uses the following five-step

sequential evaluation process to determine if a claimant is disabled:
(i) At the first step, we consider your work activity, if any. If you are doing
substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your
impairment(s). If you do not have a severe medically determinable physical
or mental impairment that meets the duration requirement
or a
combination of impairments that is severe and meets the duration
requirement, we will find that you are not disabled.
.

.

.

(iii) At the third step, we also consider the medical severity of your
impairments(s). If you have an impairment(s) that meets or equals one of our
listings
and meets the duration requirement, we will find that you are
disabled.
.

.

.

[Before the fourth step, the residual functioning capacity of the claimant is
evaluated based “on all the relevant medical and other evidence in your case
record .“20 C.F.R. §~ 404.1520; 41 6.920.]
.

.

(iv) At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant
work, we will find that you are not disabled.
(v) At the fifth and last step, we consider our assessment of your residual
functional capacity and your age, education, and work experience to see if
you can make an adjustment to other work. If you can make an adjustment
to other work, we will find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.
20 c.F.R.

§~ 404.1520; 416.920.

In steps one through four, the burden is on the claimant

to prove that he or she is disabled and that, as a result of the disability, he or she is unable
to engage in any gainful employment. Richardson v. Califano, 574 F.2d 802, 804 (4th
Cir. 1978). The burden of proof shifts to the Commissioner at step five to demonstrate
that jobs exist in the national economy that the claimant is capable of performing. Hicks
v. Gardner, 393 F.2d 299, 301 (4th Cir. 1968). If the claimant is determined to be

3

“disabled” or “not disabled” at one of the five steps, the process does not proceed to the
next step. Id.
B. AU Findings
The AU determined that Plaintiff last met the insured status requirements of the
Social Security Act on September 30, 2022. R. 13. The AU further found that Plaintiff
did not engage in substantial gainful activity during the period from her amended alleged
onset date of April 24, 2020, through her date of last insured of September 30, 2022. Id.
Through the date of last insured, the AU found that Plaintiff had the following
severe impairments: cervical spondylosis, degenerative disc disease of the lumbar spine,
lumbar radiculopathy, major depressive disorder, generalized anxiety disorder, panic
disorder, borderline personality disorder, post-traumatic stress disorder (PTSD),
cardiomyopathy, hypertension, nicotine and cannabis use, mitral valve prolapse, history
of irritable bowel syndrome with chronic constipation, diabetes mellitus type II,
headaches, obesity, fibromyalgia, asthma/chronic obstructive pulmonary disease,
hypothyroidism, and trochanteric bursitis. Id. The AU found that, through the date of last
insured, Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1(20 CFR4O4.1520(d), 404.1525 and 404.1526). R. 14.
The AU

determined that, through the date of last insured, Plaintiff had the

following residual functional capacity:
[tb perform light work as defined in 20 CFR 404.1567(b) except the
[Plaintiff] can never climb ladders, ropes or scaffolds; can occasionally climb
ramps or stairs, balance, stoop, crouch, kneel, and crawl; is capable of
frequent reaching in any direction with the bilateral upper extremities; is
capable of frequent feeling, fingering, and handling with the bilateral upper
extremities; must avoid concentrated exposure to extreme cold, extreme
4

heat, excessive vibration and irritants such as fumes, odors[,] dust and
gases, poorly ventilated areas, and chemicals and must avoid all exposure
to any hazards such as dangerous moving machinery and unprotected
heights; requires no commercial driving; and is capable of simple, routine,
and repetitive tasks that entail only simple decisions, with no fast-paced
production requirements (such as fast paced assembly like work or high
volume piecemeal quotas) and with few workplace changes; is capable of
no interaction with the general public and occasional interaction with
coworkers and supervisors (such that the [Plaintiff] is capable of working
with things rather than with people); and must be afforded the opportunity
for brief I to 2 minute changes of position at intervals not to exceed 30
minutes without being off task.
Through the date of last insured, the AU determined that Plaintiff was unable to perform
any past relevant work. R. 24. The AU further determined that, through the date of last
insured and considering Plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs in significant numbers in the national economy that
Plaintiff could have performed. R. 25. Finally, the AU concluded that Plaintiff was not
under a disability, as defined in the Social Security Act, at any time from April 24, 2020,
Plaintiff’s amended alleged onset date, through September 30, 2022, the date of last
insured. R. 26.
IV.

Motion for Summary Judgment
Plaintiff filed a Motion for Summary Judgment and a brief in support thereof on

February 2, 2024. [Docs. 15 and 15-1]. Defendant filed a Motion for Summary Judgment
and Memorandum in Support on March 4, 2024. [Doc. 17]. Plaintiff filed a Reply brief on
April 17, 2024. [Doc. 22].
A.

Arguments of the Parties
1.

Plaintiffs Arguments

Plaintiff has set forth four assignments of error. Specifically, Plaintiff argues that
the AU

(1) improperly ignored Plaintiffs cane usage; (2) violated agency policy by
5

deviating from a persuasive medical opinion without explanation or supporting rationale
contrary to SSR 96-8p; (3) failed to account for Plaintiffs moderate limitations in
concentration, persistence, and pace; and (4) failed to adequately consider and evaluate
Plaintiffs headaches consistent with agency policy. Plaintiff requests that this maffer be
remanded for further proceedings. [Doc. 15-1].
2.

Defendant’s Arguments

Defendant argues that Plaintiff has not demonstrated that a cane was medically
required.

Defendant further argues that the AU

properly evaluated the prior

administrative medical findings. Defendant contends that the AU was not required to
adopt a specific limitation to account for Plaintiffs moderate limitation in concentration,
persistence, or maintaining pace. Defendant further argues that the RFC assessment
captured Plaintiffs credibly established limitations, including those related to migraine
headaches, is substantially supported by the evidence, and permits meaningful review.
Defendant requests that Plaintiffs Motion be denied, and the Commissioner’s decision
be affirmed. [Doc. 17].
C. The Standards
1.

Summary Judgment

“Summary Judgment is appropriate ‘if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Lawson v. Union County Clerk of Court, 828 F.3d 239, 247 (4th Cir. 2016) (quoting
Fed. R. Civ. P. 56(a)).

6

2.

Judicial Review

The Court’s review of the AU’s decision is limited to determining whether the AU
applied correct legal standards and whether the AU’s factual findings are supported by
substantial evidence. Rogers v. Kijakazi, 62 F.4th 872, 875 (4th Cir. 2023).
“Substantial evidence” is “more than a mere scintilla of evidence but may be
somewhat less than a preponderance.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). “Substantial evidence” is not a “large or considerable amount of evidence, but
rather, “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Pierce v~ Underwood, 487 U.S. 552, 564-65 (1988) (internal
citations and quotations omitted). “If there is evidence to justify a refusal to direct a verdict
were the case before a jury, then there is ‘substantial evidence.” Laws v. Celebrezze,
368 F.2d 640, 642 (4th Cir. 1966), overruled by implication on other grounds, The Black
and Decker Disability Plan v. Nord, 538 U.S. 822 (2003).
D.

Discussion

This Court will take each of Plaintiffs four points of alleged error in turn.
1.

Cane usage

Plaintiff argues that, while the AU acknowledged Plaintiffs claim that she required
a cane to ambulate, the AU made no further findings or analysis regarding Plaintiffs cane
usage. [Doc. 15-1 at p. 7]. Plaintiff maintains that this is reversible error which requires
remand because the need for a hand-held assistive device may preclude work, and
because the AU’s failure to analyze Plaintiffs cane usage precludes meaningful review
of the AU’s decision. [Id. at p. 7-8]. In response, Defendant argues that Plaintiff has not
demonstrated that a cane was “medically required,” as is necessary under Agency policy.
7

Thus, remand is not required. After considering the parties’ arguments and the applicable
law, and for the reasons that follow, this Court is not persuaded by Plaintiff’s argument.
Reference to Plaintiffs cane usage is contained within the evidence of record. See
e.g., R. 328, 331, 332, 345, 404, 724, 726, 731, 748, 870, 879, 926, and 931. Plaintiff
also testified during the administrative hearing that she uses a cane for balance. R. 6667. She explained that she would fall if she did not use a cane. Id. At R. 17, the AU
noted that Plaintiff “mentioned that she requires a cane to ambulate.” Notwithstanding,
the AU did not specifically analyze whether a cane is medically necessary. Plaintiff
claims this is an error that precludes meaningful review of the AU’s decision.

The

undersigned does not agree.
Pursuant to Social Security Ruling 96-9p, “[tb

find that a hand-held assistive

device is medically required, there must be medical documentation establishing the need
for a hand-held assistive device to aid in walking or standing, and describing the
circumstances for which it is needed (i.e., whether all of the time, periodically, or only in
certain situations: distance and terrain; and any other relevant information).” Debra Ann
H. v. K,jakazi, 2022 WL 796817, at

*

3 (D.S.C. Mar. 15, 2022) (Hendricks, J.) (quoting

SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996) (emphasis added)). Here, there is no
medical documentation establishing the need for a hand-held assistive device, such as a
cane. To the contrary, the evidence Plaintiff cites in support of her argument is self
reported evidence, or evidence that medical providers have observed the fact of her cane
usage (without commenting on its medical necessity). “[S]elf-reports and references in
the record from physicians stating only that a claimant presented with a cane are not
sufficient to establish medical necessity.” Debra Ann I-I., 2022 WL 796817, at
8

*

3

Because there is no medical documentation in the record establishing Plaintiffs need for
a cane, it was not error for the AU to exclude Plaintiff’s cane usage from her analysis.
Even if it was an error for the AU to exclUde Plaintiff’s cane usage from her
analysis, the undersigned is satisfied that this was harmless error because this omission
does not preclude meaningful review of the AU’s opinion. Additionally, there is no
medical documentation establishing Plaintiff’s need for a cane, so remand would prove
futile in this instance. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (“remand
would prove futile in cases where the AU does not discuss functions that are ‘irrelevant
or uncontested”).
2.

Persuasive Medical Opinion

Plaintiff next argues that the AU

—

SSR 96-8p

violated agency policy by deviating from a

persuasive medical opinion without explanation or supporting rationale contrary to SSR
96-8p. Plaintiff argues that, although the AU found the state agency psychologists (Dr.
Joseph Capage, Ph.D., and Dr. Joseph Richard, Ed.D.) to be persuasive, the AU
nevertheless failed to include the experts’ limitation of “brief’ to the social interactions with
coworkers and supervisors within the RFC. [15-1 at p. 9].

Plaintiff argues that this

deviation merits remand because “the failure of an AU to proffer an explanation when
deviating from a medical opinion found to be persuasive constitutes reversible error.” [Id.
at p. 10]. Defendant argues that the AU was not required to adopt every limitation from
the findings of Drs. Capage and Richard simply because the AU found their opinions
persuasive, and that the AU

reasonably translated their findings into the RFC

assessment provided in the AU’s opinion. For the reasons that follow, the undersigned
would conclude that the AU erred in not including a limitation to “brief’ interactions with
9

coworkers and supervisors within the RFC. The undersigned would further conclude that
said error is not harmless. Therefore, remand is appropriate as to this issue.
SSA 96-8p provides in relevant part as follows: “[t]he RFC assessment must
always consider and address medical source opinions. If the RFC assessment conflicts
with an opinion from a medical source, the adjudicator must explain why the opinion was
not adopted.” 1996 WL 374184, at * 7 (SSA July 2, 1996). Therefore, while Defendant
is correct that an AU is not required to adopt every limitation contained in a medical
opinion that the AU finds persuasive, an AU is required to explain her rationale for
deviating from a persuasive medical opinion. Defendant contends that the AU did not
deviate from the medical experts’ opinions in fashioning the RFC. The undersigned
disagrees.
In the AU’s RFC, the AU found Plaintiff to be capable of “no interaction with the
general public and occasional interaction with coworkers and supervisors (such that the
claimant is capable of working with things rather than with people).” R. 16-17. However,
in the medical opinions which the AU found to be persuasive, the experts both found that
Plaintiff “is better suited to work in a setting that calls for no more than occasional and
brief interactions with supervisors, coworkers, and the general public.” R. 117 and 127
(emphasis added). The AU failed to include “brief’ in the RFC as it relates to Plaintiff’s
ability to interact with coworkers and supervisors. R. 16-17. This failure is significant
because “occasional” and “brief’ do not appear to be interchangeable. See e.g., Matthew
F. v. Kijakazi, 2022 WL 1442243, at *8 (D.N.J. May 6, 2022) (acknowledging “that the
term ‘occasional,’ which refers to the frequency of the interaction, is not the equivalent of
the term ‘brief and superficial,’ which refers to the quality of the interaction”) (citing Greene
10

v. Saul, 2020 WL 4593331, at * 4 (N.D. md. Aug. 11,2020)); see also Hayes v. Kijakazi,
2023 WL 22159, at

*

12 (M.D.N.C. Jan. 3, 2023) (Auld, M.J.) (“occasional” constitutes a

quantitative limitation, while “superficial” constitutes a qualitative limitation); Melissa A.
v. Kijakazi, 2022 WL 1303404, at

*

3 (S.D. md. Mar. 17, 2022) (acknowledging “brief’

means “short in duration, extent, or length,” while “occasional” is defined by the SSA as
“from very little up to one-third of the day”). Thus, the AU appears to have substantively
deviated from the experts’ opinions without offering an explanation for this deviation.
Such a deviation required an explanation. SSA 96-8p, 1996 WL 374184, at *7 (SSA July
2, 1996).
Defendant argues that, even if the AU erred in failing to include “brief’ in the RFC
without explanation, said error is harmless because at step five, the AU determined that
Plaintiff could perform jobs that require minimal social interaction, including with
supervisors and coworkers. R. 26. Indeed, the descriptions of each of these jobs in the
Dictionary of Occupational Titles indicates “People
“Not Significant,” and “Talking: Not Present

—

—

Taking Instructions and Helping” is

Activity or Condition Does Not Exist.” See

DICOT 920.687-026 (G.P.O.), 1991 WL 687967 (bander, hand); DICOT 369.687-014
(G.P.O.), 1991 WL 673071 (checker); DICOT 299.587-010 (G.P.O.), 1991 WL 672639
(produce weigher).

The undersigned is not persuaded.

Case law reflects that a

recommendation for superficial or brief contact with coworkers and supervisors could
result in a different decision than the one originally reached by the AU.3 See e.g.,
Potrebic v. Berryhill, 2019 WL 1397477, at *2 (N.D. md. Mar. 27, 2019) (acknowledging

~ Compton v. Commissioner of Social Security, 2022 WL 678474, at * 3 (W.D.N.C. Mar. 7, 2022) (Conrad,
Jr., J.) (“[a] harmless error is one that would not have led to a different result”).

11

evidence that a limitation to superficial contact with supervisors would lead to plaintiff
being unable to perform any job). This matter should therefore be remanded for additional
proceedings regarding the AU’s failure to include “brief” in the RFC vis-à-vis interactions
with coworkers and supervisors.
3.

Moderate Limitations in Concentration, Persistence, and Pace

Plaintiff next contends that the AU failed to account in the RFC for Plaintiffs
moderate limitations in concentration, persistence, and pace. Specifically, Plaintiff argues
that the AU

“must include limitations that address moderate CPP (concentration,

persistence, pace) when finding moderate CPP at step three or offer an explanation as
to why such limitations were unnecessary.” [Doc. 15-1 at p. 14]. Plaintiff contends that
the AU neither included a limitation nor explained the fact that one was not necessary.
Plaintiff argues that the AU’s opinion does not account for how Plaintiff can sustain
activities for the duration of a full workday despite her limitations. Defendant argues that
there is no rule which requires an RFC finding to account for a claimant’s moderate rating
in one or more of paragraph B criteria (such as a moderate limitation in concentration,
persistence, or maintaining pace) in any particular way. [Doc. 17 at p. 8]. Defendant
further argues that the AU’s RFC is supported by substantial evidence. For the reasons
that follow, the undersigned would agree with Plaintiff.
A court cannot summarily “account for a claimant’s limitations in concentration,
persistence, and pace by restricting the hypothetical question to simple, routine tasks or
unskilled work,” because “the ability to perform simple tasks differs from the ability to stay
on task.” Shinaberry v. Saul, 952 F.3d 113, 121(4th Cir. 2020). There is, however, no
“categorical rule that requires an AU

to always include moderate limitations in
12

concentration, persistence, or pace as a specific limitation in the RFC.” Id. If an AU
finds that concentration, persistence, or pace limitation does not affect a plaintiffs ability
to work, it would be appropriate to exclude it from the hypothetical tendered to the
vocational expert. Id. That is, “when medical evidence demonstrates that a claimant can
engage in simple, routine tasks or unskilled work despite limitations in concentration,
persistence, and pace, courts have concluded that limiting the hypothetical to include only
unskilled work sufficiently accounts for such limitations.”

Id. (quoting Winschel v.

Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)).
After reviewing the AU’s opinion, the undersigned would conclude that it is unclear
whether and/or to what extent the AU made accommodations in the RFC for Plaintiffs
moderate limitations in concentration, persistence, or pace. It is also unclear how the AU
arrived at the RFC while taking into account Plaintiffs moderate limitation in
concentration, persistence, and pace. It is possible that the AU took into account this
limitation and provided for it within the RFC; it is also possible that the AU did not believe
an accommodation was necessary. Unfortunately, the AU’s decision and reasoning on
this issue is not evident from the opinion. In this way, this case is more analogous to
Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), than it is to Shinaberry v. Saul, 952
F.3d 113 (4th Cir. 2020).
For example, the Court in Shinaberry noted the following:
The AU also considered Shinaberry’s education, GPA, class rank, and IQ
scores, as well as Shinaberry’s statements that “she does not know how
long she can pay attention, sometimes finishes what she starts, and follows
spoken instructions not the best.” J.A. 33 (internal quotation marks
omitted). The AU explained that “[t]hese statements, combined with the
claimant’s trouble with memory tasks as noted during the psychological
consultative examination, [also] support the additional mental limitation
13

restricting the claimant to jobs requiring only simple, routine, repetitive
tasks.”
Id. There is no such analysis in the instant matter. At R. 17, 18, 21, and 22, the AU
summarized the medical evidence of record and provided an opinion as to whether and
to what extent Plaintiffs claims regarding her symptoms were credible. In so doing, the
AU never disagreed with or found incredible the state agency psychologists’ opinions
regarding Plaintiffs moderate limitation in concentration, persistence, and pace. On the
contrary, the AU found the state agency psychological evaluations to be credible, but the
AU did not explain how the RFC provided for a moderate limitation in concentration,
persistence, and pace, or why such a limitation was unnecessary. R. 23-24.
In Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), the Court found that “the
AU’s evaluation of [Plaintiffs] mental impairments for purposes of the RFC contains too
little explanation for [the court] to meaningfully review it. Without further explanation, [the
court] simply cannot tell whether the RFC finding.. .properly accounts for [Plaintiffs]
moderate limitations in concentration, persistence, and pace.” Id. at n.5. The same is
true here. The Court is therefore satisfied that this matter should be remanded for
additional proceedings as to this issue. On remand, the AU should explain how the RFC
accounts for Plaintiffs moderate limitation in concentration, persistence, and pace; or
conversely, why a limitation is not necessary.
4.

Headaches

Plaintiff next argues that the AU

failed to adequately consider and evaluate

Plaintiffs headaches consistent with agency policy.

Plaintiff maintains that the AU

cherry-picked evidence favorable to the AU’s decision while ignoring evidence
unfavorable to the AU’s decision, and relied upon medical evidence which was irrelevant
14

to Plaintiffs headache treatment.

Plaintiff contends that the AU’s findings vis-a-vis

Plaintiffs headaches frustrate meaningful review, and that this maffer should be
remanded for further proceedings on this issue. Defendant argues that Plaintiff did not
present evidence of chronic headaches, and that two state agency physicians found that
Plaintiff could perform a range of light work. [Doc. 17]. Defendant also contends that the
AU accounted for Plaintiffs headaches in the RFC assessment by limiting Plaintiffs
climbing, operation of heavy machinery, working at unprotected heights, and work
requiring operation of a commercial vehicle. [Id.].

For the reasons that follow, the

undersigned would agree with Plaintiff.
The AU acknowledged that Plaintiffs headaches constitute a severe impairment.
R. 13. In so acknowledging, the AU recognized Plaintiffs assertion “that she suffers daily
headaches lasting several hours at a time, that the pain is throbbing in nature and at a
level 9 on a scale of 10, and that the headaches involve nausea, vomiting, and
photophobia.” R. 17. However, “[a]fter careful consideration of the evidence, the [AU
found] that [while] Plaintiffs medically determinable impairments could reasonably be
expected to cause the alleged symptoms; [Plaintiffs] statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely consistent with the
medical evidence and other evidence in the record.” R. 18.
Specifically, the AU found that Plaintiff “did not present consistent evidence of
chronic headaches.” R. 19, 22, 23, 24.~ The AU noted that Plaintiffs “[t}reating providers
offered Topiramate, Butalbital, and Fioricet, all of which are prescription migraine
medications (Exhibit B2F, B5F, B7F, B16F, and B2OF).” The AU further noted that,

~ This statement is repeated on each of these pages but is not explained further.

15

“[e]ven though [Plaintiff] had some periods during which she experienced headaches,
[she] did not report having headache activity specifically at the time of examinations on
November 2, 2018, January 27, 2021, March 11, 2021, June 8, 2021, October 11, 2021,
and April 6, 2022 (Exhibits B3F, B4F, B7F, and B24F).” Id. These appear to be the only
statements from the AU

in the opinion regarding Plaintiffs severe impairment of

headaches. Importantly, the AU does not explain how the Plaintiffs headaches were
accounted for in the RFC, if at all. This failure precludes a meaningful review of the AU’s
RFC decision vis-à-vis Plaintiffs headaches. Woods v. Berryhill, 888 F.3d 686, 692-93
(4th Cir. 2018). Defendant attempts to explain how the AU accounted for Plaintiffs
headaches within the RFC, but Defendant’s attempt does not ameliorate the fact that
such an explanation is missing from the AU’s opinion.
Additionally, the undersigned is troubled by what appears to have been cherrypicked evidence by the AU to support the opinion. In rendering the opinion concerning
Plaintiffs headaches, the AU acknowledges, albeit in very broad terms, the fact of
Plaintiffs medical treatment for headaches before pointing to only a handful of medical
appointments where Plaintiff apparently did not complain of headaches. R. 19. At those
appointments, however, it appears that Plaintiff sought treatment for various medical
conditions other than headaches. See e.g., R. 710-711 (treated for gastric reflux); 707
(follow-up GI appointment); 704 (GERD appointment). It is therefore unclear from the
AU’s opinion how these appointments demonstrate that Plaintiff did not show “consistent
evidence of chronic headaches.” R. 19. See Monroe v. CoIvin, 826 F.3d 176, 190 (4th
Cir. 2016) (finding unclear how AU’s citation to normal results from pulmonary and
respiratory tests and an EEG have relevance to narcolepsy).
16

Plaintiff did seek treatment for her headaches at numerous other appointments as
reflected in the record. See e.g~, R. 498, 500, 502, 465, 514, 491, 528, 531, 524, 519,
404, 537, 747, 732. Plaintiff underwent an MRI because of her headaches (R. 514), and
it was noted that her headaches were likely due to neck pain.5 R. 404. The AU did not,
however, address this evidence in a meaningful way within the opinion.
On November 23, 2021, Plaintiff consulted with Dr. Stephen Nutter, consultive
medical examiner, where she complained of, among other things, an onset of headaches
in 2005. She complained that her headaches occurred daily and lasted for hours with a
9/10 pain rating. The headaches were reported to cause nausea, vomiting, photophobia,
and aura was present. Dr. Nutter concluded that physical findings are related to her
headaches. R.729-732. The AU

cited Dr. Nutter’s consultive medical examination

throughout the opinion but did not cite to or discuss Dr. Nutter’s findings relative to
Plaintiffs headaches.
The above-noted failures preclude meaningful review of the AU’s opinion
regarding Plaintiffs headaches. This issue should therefore be remanded for further
proceedings.
V.

Conclusion
Accordingly, the R&R [Doc. 23] is ADOPTED in its entirety. Plaintiffs Motion for

Summary Judgment [DoG. 15] is GRANTED IN PART AND DENIED IN PART, as set
forth more fully above.

Specifically, the undersigned finds that Plaintiffs Motion for

Summary Judgment be denied as to the issue of Plaintiffs cane usage. The undersigned
finds that Plaintiff’s Motion for Summary Judgment be granted as to the balance of issues.

~ The AU found that Plaintiff has the severe impairment of cervical spondylosis. R. 13.

17

Additionally, Defendant’s Motion for Summary Judgment [Doc. 17] is GRANTED
IN PART AND DENIED IN PART, as set forth more fully above.

Specifically, the

undersigned finds that Defendant’s Motion for Summary Judgment be granted as to the
issue of Plaintiff’s cane usage.

The undersigned finds that Defendant’s Motion for

Summary Judgment be denied as to the balance of issues.
As such, this mailer is hereby REMANDED to the AU for further proceedings
consistent with this opinion.
It is so ORDERED.
The Court DIRECTS the Clerk of the Court to provide a copy of this Report and
Recommendation to all counsel of record, as provided in the Administrative Procedures
for Electronic Case Filing in the United States District Court for the Northern District of
West Virginia. The Court further DIRECTS the Clerk to mail a copy of this Report and
Recommendation to any pro se party by certified mail, return receipt requested, to their
last known address as reflected on the docket sheet.
DATED: May ~ 2024.

OHN PRESTON BAILEY
U
TATES DISTRICT JUDGE

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