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Worley v. Berryhill

United States District Court, E.D. North Carolina, Southern Division

February 4, 2019

MELISSA D. WORLEY, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM & RECOMMENDATION

          KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Melissa D. Worley (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of her application for disability insurance benefits. The parties have fully briefed the issues presented, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #18] be granted, Defendant's Motion for Judgment on the Pleadings [DE #20] be denied, and the case be remanded to the Commissioner for further consideration.

         STATEMENT OF THE CASE

         Plaintiff protectively filed an application for a period of disability and disability insurance benefits on October 29, 2013, alleging disability beginning March 30, 2013. (R. 10, 156-57.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 99-102, 105-08.) On December 15, 2016, a hearing was held before Administrative Law Judge Clint Dorman (“ALJ”), who issued an unfavorable ruling on March 2, 2017. (R. 10-20.) Plaintiff's request for review by the Appeals Council was denied November 20, 2017, making the ALJ's decision the final decision of the Commissioner. (R. 1-3.) Plaintiff now seeks judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).

         DISCUSSION

         I. Standard of Review

         The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (internal quotation marks and citation omitted) (alteration in original). “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (internal quotation marks omitted) (first and second alterations in original). Rather, in conducting the “substantial evidence” inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).

         II. Disability Determination

         In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of his past work; and, if not, (5) based on the claimant's age, work experience and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520; see also Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id.

         III. ALJ's Findings

         Applying the five-step, sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment from the alleged onset date of March 30, 2013, through the date last insured, March 31, 2018. (R. 12.) Next, the ALJ determined Plaintiff has the following severe impairments: obesity, degenerative joint disease; Type I diabetes mellitus; irritable bowel syndrome; degenerative disc disease; migraines; anxiety disorder; and depressive disorder. (Id.) The ALJ further determined that Plaintiff's gastroesophageal reflux disease, urinary tract infections, hyperlipidemia, fatty liver disease, anemia, and lipomas cause no more than minimal limitations on her ability to perform basic work-related functions and are therefore non-severe impairments. (Id.) At step three, the ALJ concluded that Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (R. 13-14.)

         Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”), and found that Plaintiff has the ability to perform sedentary work with the following additional restrictions:

[S]he can frequently handle, finger and feel bilaterally. She can never climb ladders, ropes or scaffolds, crawl, be exposed to unprotected heights, dangerous machinery or extreme heat or cold. She can occasionally use ramps or stairs, balance, stoop, kneel or crouch. She is limited to simple, routine tasks but not at a production pace in a low-stress environment with only occasional changes in the workplace setting.

(R. 14-15.) In making this assessment, the ALJ found that Plaintiff's statements “concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (R. 15.) At step four, the ALJ concluded Plaintiff was not capable of performing the requirements of past relevant work. (R. 18.) Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined that Plaintiff was capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national and state economies. (R. 19.)

         IV. Plaintiff's Contentions

         Plaintiff challenges the Commissioner's final decision denying benefits on three grounds. Plaintiff first contends the ALJ erred in failing to consider whether her migraine headaches met or equaled Listing 11.02. Second, Plaintiff argues the ALJ failed to properly evaluate the opinions of her treating physician. Third, Plaintiff contends the ALJ did not properly assess her statements concerning the severity and functional impact of her impairments.

         A. Listing 11.02

         For each of the major body systems, the Social Security Administration has identified a list of impairments it considers “severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience.” 20 C.F.R. § 404.1525 (describing Listing of Impairments). Each listed impairment or “listing” specifies “the objective medical and other findings needed to satisfy the criteria of that listing.” 20 C.F.R. § 404.1525(c)(3). A claimant whose impairment meets the criteria of a listing is automatically entitled to disability benefits, regardless of her actual ability to work. See 20 C.F.R. § 404.1520(d).

         At step three of the sequential evaluation process, an ALJ is required to analyze a claimant's medically determinable impairments to determine whether they meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1. The ALJ must “consider all evidence in [a claimant's] case record about [the] impairment(s) and its effects on [the claimant] that is relevant to this finding.” 20 C.F.R. § 404.1526(c). Where a claimant has a severe impairment and the record contains ample evidence that symptoms related to the impairment “correspond to some or all of the requirements of a listing, ” it is incumbent upon the ALJ to identify the listing and to compare the claimant's symptoms to each of the listing's requirements. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). While it may not always be necessary for the ALJ to perform a “step-by-step” analysis of the listing's criteria, the ALJ must evaluate the claimant's symptoms in light of the specified medical criteria and explain his rationale. Williams v. Astrue, No. 5:11-CV- 409-D, 2012 WL 4321390, at *3 (E.D. N.C. Sept. 20, 2012).

         The burden of proof at this step is on the claimant to show that she meets or equals all the criteria of a listing. Hunter v. Sullivan, 993 F.2d 31 (4th Cir. 1992). “For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). An impairment that does not meet the criteria of a listing may nevertheless medically equal a listing's criteria. 20 C.F.R. § 404.1525(e)(5). If the impairment is not specified in the listings, the ALJ must compare the medical findings of the claimant's impairment to the criteria for “closely analogous listed impairments” to determine whether “the findings related to [the claimant's] impairment(s) are at least of equal medical significance to those of a listed impairment.” 20 C.F.R. § 404.1526(b)(2). To establish medical equivalence, a claimant must “present medical findings equal in severity to all the criteria” for that listing. Zebley, 493 U.S. at 531.

         An ALJ must provide sufficient explanation and analysis to allow meaningful judicial review of his step-three determination where the “medical record includes a fair amount of evidence” that a claimant's impairment meets or equals a listing. Radfoxrd v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Where such evidence exists but is rejected without discussion, “insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings.” Id. (citations omitted); see also Brown v. Colvin, 639 Fed.Appx. 921, 923 (4th Cir. 2016) (remanding where the “medical record [was] not so one-sided that one could clearly decide, without analysis, that [the listing in question was] not implicated”). Where the ALJ fails to make the necessary comparison or fails to explain the basis for his decision other than in a summary or conclusory fashion, the court is unable to determine whether the ALJ's decision is supported by substantial evidence. Cook, 783 F.2d at 1173.

         There is no listing that pertains specifically to migraine headaches. Accordingly, the ALJ did not err in determining that Plaintiff's migraine headaches did not meet a listing. However, the ALJ did not identify any listing to which he compared Plaintiff's migraines for purposes of determining medical equivalence. Plaintiff contends this was error.

         Plaintiff argues the ALJ should have considered whether her migraine headaches medically equal Listing 11.02. Listing 11.02 is part of the Neurological Disorders body system (11.00), which includes “epilepsy, amytotrophic lateral sclerosis, coma or persistent vegetative state (PVS), and neurological disorders that cause disorganization of motor function, bulbar and neuromuscular dysfunction, communication impairment, or a combination of limitations in physical and mental functioning.” 20 C.F.R. Part 404, Subpart P, App. 1, § 11.00(A) (eff. Jan. 17, 2017 to Mar. 26, 2017). Listing 11.02 refers specifically to epilepsy, which is defined as “a pattern of recurrent and unprovoked seizures that are manifestations of abnormal electrical activity in the brain.” 20 C.F.R. Part 404, Subpart P, App. 1, § 11.00(H)(1) (eff. Jan. 17, 2017 to Mar. 26, 2017).

         For claims arising before Sept. 29, 2016, courts generally consider Listing 11.03 (Nonconvulsive Epilepsy)[1] the appropriate listing for determining medical equivalence of a claimant's migraine headache impairment. See, e.g., Amy L. v. Berryhill, No. 4:17-CV-113-TWP-DML, 2018 WL 6241381, at *5-6 (S.D. Ind. Nov. 29, 2018); Tabor v. Berryhill, No. 17-CV-1200-FLN, 2018 WL 3826685, at *4, 8-9 (D. Minn. Aug. 10, 2018); Boerger v. Berryhill, No. 2:16-CV-1095-DWA, 2017 WL 2780584, at *2-3 (W.D. Pa. June 27, 2017); Buus v. Colvin, No. 4:14-CV-4066-KES, 2015 WL 2372615, at *9 (D.S.D. May 18, 2015). These decisions appear to be premised, in large part, upon written guidance from the Social Security Administration. In Boerger, for example, the court found great significance in the Social Security Administration's 2009 issuance of National Q&A 09-036 (SSA Q&A 09-036), which rescinded prior guidance concerning migraine headaches and provided temporary guidance while the listings for neurological disorders were being updated. Boerger, 2017 WL 2780584, at *2-3. Boerger noted that SSA Q&A 09-036 identified Listing 11.03 as most analogous to migraine headaches:

In SSA Q&A 09-036, the SSA reviewed the essential components of listing 11.03 as they may relate to migraine headaches. Among other things, the SSA noted that the requirement of occurrence “in spite of at least 3 months of prescribed treatment” was inapplicable to migraines because “unlike treatment for epilepsy, which seeks to maintain a steady level of medication in the blood, there is no such standard of care in the treatment of migraine headaches.” In addition, “it is not necessary for a person with migraine headaches to have alteration of awareness as long as s/he has an effect . . . that significantly interferes with activity during the day.” “Significant interference with activity during the day” has the “[s]ame meaning as in ...

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