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Anderson v. Berryhill

United States District Court, W.D. Oklahoma

April 21, 2017

MICHELLE ANDERSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.[1]

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's applications for supplemental security income and disability insurance benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR.__). The parties have consented to jurisdiction over this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

         The parties have briefed their positions, and the matter is now at issue. Based on the Court's review of the record and the issues presented, the Commissioner's decision is REVERSED and REMANDED for further administrative development.

         I. PROCEDURAL BACKGROUND

         Plaintiff's applications for supplemental security income and disability insurance benefits were denied initially and on reconsideration. Following a hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 13-31). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.

         II. THE ADMINISTRATIVE DECISION

         The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520 & 416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since January 3, 2013, the alleged disability onset date. (TR. 15). At step two, the ALJ determined Ms. Anderson had the following severe impairments: depression, anxiety, migraines, and bipolar disorder. (TR. 15). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 25).

         At step four, the ALJ found that Plaintiff could not perform her past relevant work. (TR. 30). The ALJ further concluded that Ms. Anderson had the residual functional capacity (RFC) to:

[P]erform a full range of work at all exertional levels but with the following nonexertional limitations: work must be limited to simple, routine, and repetitive tasks; occasional interaction with co-workers, supervisors, and public; and free from assembly-line rate pace.

(TR. 26).

         Based on the finding that Ms. Anderson could not perform her past relevant work, the ALJ proceeded to step five. There, the ALJ presented several limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 58-59). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles. (TR. 59). The ALJ adopted the testimony of the VE and concluded that Ms. Anderson was not disabled based on her ability to perform the identified jobs. (TR. 31).

         III. ISSUES PRESENTED

         On appeal, Plaintiff alleges the ALJ erred at steps two and four and in the consideration of a treating psychologist's opinion.

         IV. STANDARD OF REVIEW

         This Court reviews the Commissioner's final “decision to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted).

         While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).

         V. STEPS TWO AND FOUR

         Plaintiff's challenges to the ALJ's findings at steps two and four are intertwined, necessitating consideration of the errors concurrently. Plaintiff alleges she is disabled due to problems with her back, migraine headaches, depression, anxiety, and bipolar disorder. At step two, the ALJ concluded that Plaintiff's back impairment was not severe, but that the other impairments were severe. (TR. 15, 25). Ms. Anderson argues: (1) the ALJ's step two determination was flawed and (2) the ALJ failed to consider all of her impairments in formulating the RFC at step four. The Court finds no error at step two and error at step four with regard to the migraine headaches.

         A. Step Two

         Citing Wells v. Colvin, 727 F.3d 1061 (10th Cir. 2003), Ms. Anderson challenges the ALJ's step two findings, but her reliance on Wells is misplaced.

         In Wells, the ALJ had made a step-two finding that the plaintiff's mental impairments were not severe. Wells, 727 F.3d at 1068. The ALJ then stated: “[t]hese findings do not result in further limitations in work-related functions in the [RFC] below.” Id. at 1069 (brackets in original). The Tenth Circuit Court of Appeals stated that the ALJ's language “suggest[ed]” that he may have relied on his step-two findings to conclude that the plaintiff had no limitations at step four based on mental impairments. Id. at 1069. If so, the Court stated, such a conclusion would be considered “inadequate under the regulations” because the RFC analysis at step four required “a more detailed assessment” “describing how the evidence supports each conclusion, citing specific medical facts.” Id. (emphasis in original).

         Ms. Anderson contends that the ALJ erred at step two by making findings more egregious than the step-two findings condemned in Wells. Plaintiff states: “Worse yet, in contrast to the step-two statement that Wells implied would be inadequate, at step two in Ms. Anderson's case the ALJ made no statement whatsoever regarding all severe or non-severe impairments in her RFC which is error.” (ECF No. 16:4-5). Plaintiff also states: “[T]he ALJ failed to follow the regulations in reaching her determination about whatever she thought about Ms. Anderson's mental and physical limitations at step two of the sequential evaluation.” (ECF No. 16:5). These statements suggest that the Plaintiff believes Wells requires some sort of finding at step-two regarding the impact of the impairments at step four. But such an assumption overstates the ALJ's duty at step two, and misses the import of the holding in Wells.

         At step two, the ALJ's duty is limited to making a determination of whether the claimant suffers from a severe impairment or combination of impairments. See Bowen v. Yuckert, 482 U.S. 137, 140-141 (1987); 20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ complied with this duty, finding that Ms. Anderson suffered from severe depression, migraine headaches, anxiety, and bipolar disorder. See TR. 15. Wells did not require the ALJ to make a step two finding beyond severity. Instead, the Court found error “to the extent the ALJ relied on his finding of non-severity as a substitute for [an] adequate RFC analysis[.]” Wells, 727 F.3d at 1071. Thus, the Court rejects Plaintiff's allegation of error to the extent that it is premised on an improper findings under Wells at step two.[2]

         B. Step Four

         As stated, under Wells, an ALJ may not substitute his findings of non-severity in lieu of a more thorough discussion of how the impairments may result in work-related limitations at step four. Id. at 1068-1071. Indeed, Wells states: “a conclusion that the claimant's mental impairments are non-severe at step two does not permit the ALJ simply to disregard those impairments when assessing a claimant's RFC and making conclusions at steps four and five.” Id. at 1068-1069. Plaintiff relies on this language in Wells to argue that the ALJ erred by failing to include any limitations in the RFC stemming from her migraine headaches, her mental impairments, and a lower back impairment. See (ECF No. 16:4-5). With respect only to the migraine headaches, Plaintiff's argument has merit.

         First, with regard to her mental impairments and lower back impairment, Plaintiff only argues that the ALJ erred in failing to include work-related limitations from these impairments in the RFC. See ECF No. 16:3 (“Although the ALJ found that Ms. Anderson [sic] mental conditions were severe impairments, she failed to include their symptoms and limitations in the RFC.”); ECF No. 16:4 (“The ALJ failed to include any limitations in [sic] RFC for all of the severe impairments she did find, namely the headaches and mental impairments”); ECF No. 16:5 (statement that the ALJ “obviously” failed to consider Plaintiff's non-severe back impairment because the RFC found she could perform work at all exertional levels).

         But the ALJ's finding that a medically determinable impairment satisfies the “de minimis” threshold at step two simply means that the sequential analysis proceeds to step three; it “is not determinative of the claimant's RFC” and “does not account for the ALJ's assessment, at step four, of a claimant's ability to work at given exertion level.” Johnson v. Berryhill, __F. App'x__, 2017 WL 603830, at *3 (10th Cir. 2017) (citing Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016); 20 C.F.R. § 404.1520(e)). The critical “question is not whether the RFC recounts or lists the ‘severe' impairments found at step two, but whether the RFC accounts for the work-related limitations that flow from those impairments.” Cavalier v. Colvin, 2014 WL 7408430, at *2 (N.D. Okla. Dec. 30, 2014).

         Here, Plaintiff does not explain how her mental impairments or her lower back impairment would affect her ability to work. Thus, the Court rejects Plaintiff's step four argument as it pertains to these particular impairments. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987) (the claimant has the initial burden of establishing a disability in the first four steps of this analysis); McAnally v. Astrue, 241 F. App'x. 515, 518 (10th Cir. 2007) (affirming in part because “with regard to [her severe impairments], the claimant has shown no error by the ALJ because she does not identify any functional limitations that should have been included in the RFC assessment or discuss any evidence that would support the inclusion of any limitations” (citation and internal brackets omitted)); Kirkpatrick v. Colvin, __F. App'x.__, 2016 WL 5920745, at *3 (10th Cir. 2016) (rejecting Plaintiff's argument regarding the alleged omission of certain limitations in an RFC because “[plaintiff] doesn't explain how these restrictions fail to account for his [limitations] . . . [a]nd it isn't our obligation to search the record and construct a party's arguments.”). However, as argued by Ms. Anderson, the Court concludes that the ALJ did err at step four in her consideration of Plaintiff's migraine headaches.

         In the decision, the ALJ found that the migraine headaches were severe, and noted 21 instances where Ms. Anderson had sought related treatment, including treatment at the emergency room. (TR. 16-24). And at the hearing, Plaintiff testified that she had suffered from migraine headaches off and on since she was 18 years old. (TR. 46). According to Ms. Anderson, when she has a migraine, she is sensitive to light and sound and the headaches sometimes cause her to vomit. (TR. 46). Ms. Anderson explained that at times, she is able to treat the migraines with an Imitrex shot, which allows her to then “go on with her day.” (TR. 46, 56). However, Plaintiff also explained that one headache might last for 3-4 days, which caused her to be stuck in bed, unable to do anything because of the pain. (TR. 46, 56). If the migraine lasted for more than 3 days, Plaintiff testified that she had to go the hospital for an intravenous treatment of what she described as a “migraine cocktail.” (TR. 46). On average, Ms. Anderson stated that she suffered migraine headaches approximately 18 days per month. (TR. 47).

         Despite the numerous medical records and Plaintiff's testimony, the ALJ failed to discuss the impact of the migraines in the RFC determination or in her credibility analysis. Following a nearly 10-page single-spaced recitation of the medical evidence, the ALJ evaluated the opinion evidence and Ms. Anderson's credibility. (TR. 16-25).

         With respect to the opinion evidence, the ALJ stated:

As for the opinion evidence, the undersigned gives great weight to the opinions by the DDS Medical Consultants at Exhibits 1A, 2A, and 7A and 8A. The opinion by the psychologist at Exhibit 8F is given very little weight as he had only treated her since July 2014, and he completed a form and this psychologist's opinion contrasts sharply with other evidence of record, which renders it less persuasive.

(TR. 29). Despite the plethora of medical evidence concerning Plaintiff's migraine headaches, which the ALJ acknowledged, she never rendered an opinion regarding the medical evidence as it related to this impairment.

         And with respect to Plaintiff's credibility, the ALJ acknowledged Ms. Anderson's testimony regarding the length and frequency of the migraines, as well as how the headaches affected her day to day. (TR. 28). Ultimately, ...


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