United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
T. ERWIN UNITED STATES MAGISTRATE JUDGE.
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).
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.
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.
THE ADMINISTRATIVE DECISION
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).
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.
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.
appeal, Plaintiff alleges the ALJ erred at steps two and four
and in the consideration of a treating psychologist's
STANDARD OF REVIEW
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).
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).
STEPS TWO AND FOUR
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
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.
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).
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.
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.
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.
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
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).
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.
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).
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).
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.
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,