R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
Plaintiff, Jala E. Smith, appeals from the decision of the Commissioner of the Social Security Administration ("Commissioner") denying her applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). Ms. Smith timely pursued and exhausted her administrative remedies and the decision of the Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Plaintiff was 34 years old at the time of the Administrative Law Judge's ("ALJ's") decision, and she has her GED. (Tr. at 92.) Her past work experiences include employment as a certified nursing assistant, cashier, and fast food worker. (Id. at 93-94.) Ms. Smith claims that she became disabled on July 9, 2016, due to severe chronic migraines, dizziness, muscles spasms, nausea, anxiety, depression, numbness to body and face, confusion, and blackout spells. (Id. at 233, 95-96, 258.)
The Social Security Administration ("SSA") has established a five-step sequential evaluation process for determining whether an individual is disabled and thus eligible for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in order until making a finding of either disabled or not disabled; if no finding is made, the analysis will proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first step requires the evaluator to determine whether the plaintiff is engaged in substantial gainful activity ("SGA"). See id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not engaged in SGA, the evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of the plaintiff's medically determinable physical and mental impairments. See id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of impairments that is not classified as "severe" and does not satisfy the durational requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The decision depends on the medical evidence contained in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that "substantial medical evidence in the record" adequately supported the finding that plaintiff was not disabled).
Similarly, the third step requires the evaluator to consider whether the plaintiff's impairment or combination of impairments meets or is medically equal to the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff's impairment or combination of impairments does not meet or medically equal a listed impairment, the evaluator
The fifth and final step requires the evaluator to consider the plaintiff's RFC, age, education, and work experience in order to determine whether the plaintiff can make an adjustment to other work. See id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the plaintiff can perform other work, the evaluator will find him not disabled. Id.; see also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff cannot perform other work, the evaluator will find him disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Ms. Smith has not engaged in SGA since the alleged onset of her disability. (Tr. at 64.) According to the ALJ, Plaintiff's depression, migraine headaches, and obesity are considered "severe" based on the requirements set forth in the regulations. (Id.) However, she found that these impairments neither meet nor medically equal any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 65.) The ALJ determined that Ms. Smith has the following RFC: medium work, including lifting and/or carrying fifty pounds occasionally and twenty-five pounds frequently; sitting for six hours; standing and/or walking for six hours; pushing/pulling as much as she can lift/carry; climbing ramps and stairs frequently, but never climbing ladders, ropes, or scaffolding; frequently balancing, stooping, kneeling, crouching, and/or crawling; avoiding unprotected heights or moving mechanical parts; performing simple, routine tasks; making simple work-related decisions; and only occasionally interacting with the with general public. (Id. at 66.)
According to the ALJ, Ms. Smith is unable to perform any of her past relevant work. (Tr. at 72.) She determined that Plaintiff's "transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled." (Id. at 73.) Because Plaintiff cannot perform the full range of medium work, the ALJ enlisted a vocational expert ("VE") and used Medical-Vocation Rule 203.28 as a guideline for finding that there are a significant number of jobs in the national economy that she is capable of performing, such as hand packager, laundry worker, and cleaner. (Id.) The ALJ concluded her findings by stating that Plaintiff "has not been under a disability, as defined in the Social Security Act, from July 9, 2016, through the date of this decision." (Id.)
This court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of its review is limited to determining (1) whether there is substantial evidence in the record as a whole to support the findings of the Commissioner, and (2) whether the correct legal standards were applied. See Stone v. Comm'r of Soc. Sec., 544 F. App'x 839, 841 (11th Cir. 2013) (citing Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This court gives deference to the factual findings of the Commissioner, provided those findings are supported by substantial evidence, but applies close scrutiny to the legal conclusions. See
Nonetheless, this court may not decide facts, weigh evidence, or substitute its judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)). "The substantial evidence standard permits administrative decision makers to act with considerable latitude, and `the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.'" Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966)). Indeed, even if this court finds that the proof preponderates against the Commissioner's decision, it must affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
However, no decision is automatic, for "despite th[e] deferential standard [for review of claims], it is imperative that th[is] court scrutinize the record in its entirety to determine the reasonableness of the decision reached." Bridges v. Bowen, 815 F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881, 883 (11th Cir. 1984)). Moreover, failure to apply the correct legal standards is grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
One of Ms. Smith's arguments in support of reversal is that the ALJ, in determining her RFC, failed to account for limitations caused by her migraine headaches, including failing to account for the multiple opinions of Dr. Arturo Otero, her treating neurologist, that she suffered from debilitating migraine headaches.
A claimant's RFC is an administrative finding as to the most the claimant can do despite the limitations from her impairments. See 20 C.F.R. §§ 404.1527(d), 404.1545(a), 416.927(d), 416.945(a). A claimant's RFC is reserved to the determination of the ALJ and is concluded based on the relevant medical evidence and other evidence included in the case record. See 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Statements by a physician are relevant to the ALJ's findings, but they are not determinative, as it is the ALJ who bears the responsibility for assessing a claimant's RFC. See, e.g., 20 C.F.R. § 404.1546(c). A claimant's statements about the frequency, intensity, and duration of her symptoms will only impact her RFC to the extent they are consistent with other evidence of record. See 20 C.F.R. §§ 404.1529, 416.929 (describing the Commissioner's process for evaluating subjective complaints).
Eleventh Circuit case law provides that controlling weight must be given to the opinion, diagnosis and medical evidence of a treating physician absent good cause to do otherwise. Crawford, 363 F.3d at 1159-1160; Phillips, 357 F.3d at 1240-1241; 20 C.F.R. § 404.1527(d)(2). "[G]ood cause exists when the (1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with
A recitation of Smith's medical history with regard to her migraine headaches is warranted. Smith has suffered from migraines since she was a child, but in early March 2016, her headaches worsened. (Tr. at 403.) An examination by her treating physician at Vernon Medical Clinic revealed that she was tender to palpation over the cervical spine muscles, with muscle spasms in her neck. She was prescribed Toradol, Zanaflex, and Xanax. (Tr. at 366-69.) Later in March, her left-sided scalp pain continued, but a CT of her head was normal. (Tr. at 361.) She reported that she had occasional migraines, and although she had taken Imitrex in the past, it was too expensive, but she was willing to try it again. Topamax and Imitrex were prescribed for her migraine and tension headaches. (Tr. at 362-64.)
By early April 2016, Smith's headaches were better, and her scalp pain had resolved because she'd cut her hair very short. (Tr. at 356.) She was assessed with improved migraine headache and Topamax was increased. (Tr. at 359.) However, later in April, Smith continued having severe frequent headaches. She'd tried everything she'd been offered with little relief and wanted a referral to a neurologist. Her examination was normal except for tenderness to palpation over the cervical spine muscles. (Tr. at 351-53.) She was assessed with chronic, recurrent headache and neck pain, Imitrex was refilled, and she was referred to a neurologist. (Tr. at 354.)
Smith began treatment with neurologist, Arturo Otero, M.D., in July 2016. He treated her through at least August 2017, and he diagnosed intractable migraine headaches and spasms. (Tr. at 391-413, 414-18, 422-70, 471-73, 550-56.) His treatment notes document that Smith said she had daily migraines that were experienced any time of the day. They were located occipitally and cervically, severe in intensity (8-10/10), with pounding and throbbing, and associated symptoms of photophobia, nausea, vomiting, phonophobia, hot temperatures, and excessive psychological stress. Smith had a family history of similar headaches and a history of them as a child. Her migraines were exacerbated by lack of sleep, noise, stress, weather changes, and hot temperatures, and alleviated by rest, sleep, relaxation, vomiting, decreased activity, and quiet. (Tr. at 403.) Preventative medications such as Topamax weren't helpful; abortive medication, like Imitrex, was helpful; and Excedrin Migraine, Ibuprofen, and Naprosyn were not helpful. (Id.)
Related to the headaches, Dr. Otero's notes reflect that Smith also had severe spasms affecting her from the occiput/neck all the way to the lumbar spine. Episodes lasted an entire day and occurred spontaneously, with duration of two months, (i.e., since about May 2016). (Id.) She'd had instances of her hands and feet becoming paresthetic on a frequent basis, and her sleep was poor, fragmented, and interrupted. (Id.) Dr. Otero increased some of her medications, added Neurontin, ordered MRIs of her brain and cervical spine, and ordered nerve conduction studies of her bilateral upper and lower extremities. (Tr. at 404.)
In January 2017, Dr. Otero documented that Smith had dizziness caused by extreme head pain (Tr. at 428), blurred vision caused by intense headaches (Tr. at
By February 2017, he noted that Smith had episodes of generalized spasms that came in paroxysms, at times severe enough she couldn't walk, and that affected her entire body and limbs. (Tr. at 423.) She also had acroparesthesias and hypoestesias that seemed to be increasing. (Id.) Dr. Otero was concerned about her episodes of generalized weakness and spasms of the entire body, so he referred her to UAB Neurology to determine if she had stiff person syndrome. (Tr. at 425, 474.)
In June 2017, Dr. Otero noted that Smith was still having spasms of the upper and lower extremities and cervical and thoracic spines with exertion, despite Tizanidine helping her spasms. (Tr. at 554.) She weighed 267.5 pounds with a BMI of 44.51, and physical examination was normal. (Tr. at 555.)
Over the time he treated her, Dr. Otero ordered multiple objective tests that were essentially negative (Tr. at 406, 408, 450, 573-74), with the exception of an MRI of her cervical spine that showed mild neural foraminal narrowing on the right at C4-C5 and C5-C6. (Tr. at 407.) He prescribed multiple medications to try to alleviate Smith's migraine headache pain. (Tr. at 395-96, 428-29.) Dr. Otero also stated several times, beginning in September 2016, that Smith could not work due to her medical condition. (Tr. at 395.) He reiterated in October 2016 that Smith was not able to work, that she would have difficulty performing plain housework. (Tr. at 416.) In February 2017, he said she was not capable of holding meaningful gainful employment. (Tr. 425.) He completed a medical source statement in February stating that Smith couldn't sustain work activity on a regular and continuing basis due to severe migraines, and that she'd likely miss two or more days a month, and he cited objective evidence of her severe pain behavior and various ER visits. (Tr. at 471-72.)
In May 2017, Smith saw neurologist, Ikjae Lee, M.D., on referral from Dr. Otero, for muscle spasms that started with bad headaches. (Tr. at 577.) Dr. Otero wanted him to determine if she had stiff person syndrome. Smith reported severe head pain that lasted for days, with blurry vision or dark vision, that got better with resting or a Phenergan shot. (Id.) She had headaches at least two to three times a week, muscle spasms in her neck and back that worsened the headaches, and spasms in her arms and legs, with pain in the muscles when the spasms ended, typically within five minutes. (Id.) This happened off and on all day, about 15 times a day. She had intermittent tingling in her fingers and in her legs, feet, and calf, and back pain that radiated to both legs. (Tr. at 578-79.) Her physical and neurological examination was normal. (Id.) Dr. Lee's impression was muscle spasm, paresthesia, chronic headache, chronic neck and back pain, and obesity, with a worsening course. Lab tests and an EMG/NCS test were normal. (Tr. at 582.)
Treatment notes from a treating nurse in 2017 document Smith's continuing migraines and muscle spasms. In April 2017, Smith started treatment with Lou Ann Hubbard, CRNP, for headaches, dizziness, swelling, muscle spasms in her lower back, chest pain, and seeing amber. (Tr. at 604). A chest x-ray showed slightly increased lung volumes. (Tr. at 606). Later that month, Smith felt better after starting Lasix and Zanaflex. She weighed 276.5 pounds with a BMI of 46.01. Ms. Hubbard's assessment included near syncope, and panic attacks. Paxil was started. (Tr. at 601-02.) In September 2017, Ms. Hubbard's assessment was chronic vertigo, swelling, bilateral headaches, chronic nausea, and tiring easily. (Tr. at 596-97.) Steroids, diuretics, and anti-nausea medications were started. (Tr. at 597.)
Smith was also seen at various emergency room departments after her onset date because of her migraines, spasms, and atypical chest pain. At a visit in December 2016, she had visual phenomena indicative of photopsias and muscle spasms in all her limbs, especially in the right arm and neck. (Tr. at 430). Diagnoses included intractable migraine and paresthesias, and numbness. (Tr. at 431.) In February 2017, she presented to an emergency department again with worsening body spasms and headache at an 8/10 intensity level, saying that her medications weren't helping. (Tr. at 533.) At a visit in March 2017, she had body swelling, pain, headache, vomiting, fluid build up, and nausea. (Tr. at 527.) Reflexes in her feet were hyperreflexic, and a chest x-ray showed chronic elevation of the right hemidiaphragm, but no acute lung disease. (Tr. at 529-31.) In July 2017, Smith presented at the emergency department with trouble staying awake, dizziness, slurred speech, gait problems, and near syncope for more than one week. (Tr. at 511.) Her examination, and all tests were normal, and the impression was dizziness with gait difficulty, near syncope, and speech problems. (Tr. at 513-14, 516-517, 573-74.)
A psychological consultative examination and a post-hearing physical consultative examination also document Smith's headache and muscle spasm complaints. In October 2016, Brian Thomas, Psy.D. performed a psychological evaluation of Smith on behalf of the Social Security Administration. (Tr. at 420.) She complained of pain, dizziness, and blackouts that interfered with driving. After a mental status examination and interview, Dr. Thomas diagnosed major depressive disorder, panic disorder with agoraphobia, but ruled out somatic symptom disorder. He said her ability to perform routine and repetitive tasks is fair, but her consistency is probably poor. (Id.) She had a fair ability to sustain attention, interact with coworkers, and to handle funds, and her ability to receive supervision was adequate. (Id.)
Post-hearing, in October 2017, Smith was examined by consultant Hakim Hisham, M.D. (Tr. at 608.) She reported severe, painful headaches with associated nausea and vomiting, light and sound sensitivity, and sometimes balance problems.
Smith's testimony of her limitations from her migraines and related problems is consistent with what she reported to doctors. At Smith's hearing, she stated that she has daily migraines, some more severe than others, but the ones she has daily usually last a couple hours and she has to lie down, and is weak after them. (Tr. at 95.) When she has them she stays in a dark room with her air conditioners and a fan on her, keeping her cool so the migraine won't be so intense. They last from start to finish anywhere from two to six hours. (Tr. at 102-03.) She stated that at the time of her hearing, she was taking over-the-counter Excedrin Migraine because her doctor had taken her off Sumatriptan, but she was going back to see him on the ninth, which was five days after the hearing, to see how the Excedrin Migraine had helped—she said they were doing a trial with the medications. (Tr. at 95-96.)
While the frequency of Smith's migraines varied over time, she never reported fewer than two to three a week with pain sometimes lasting for days, and while their intensity varied, she did not report fewer than four to five very severe migraines a month, with daily headaches.
As noted above, the ALJ found that Smith's migraine headaches, depression, and obesity are severe impairments at step two of the evaluation but that they did not meet or equal a Listing of impairments at step three. Within her RFC finding, the ALJ broadly stated that Smith's descriptions of her symptoms and limitations has generally been "inconsistent and unpersuasive." (Tr. at 68.) Also within the RFC, the ALJ rejected the multiple opinions of Dr. Otero that Smith suffers from severe migraines that are disabling because there was no objective evidence to support his opinions. (Id.) ("Dr. Otero's opinion is not supported by the evidence or by the treatment notes, in particular, by the objective findings, which are all normal.").
After careful review, the court concludes it was reversible error for the ALJ to reject Dr. Otero's opinions. In addition, the ALJ failed to account for Smith's migraines in determining her RFC. Neither the Social Security Administration nor the federal courts requires that an impairment, including migraines, be proven through objective clinical findings. See, e.g., Thompson v. Barnhart, 493 F.Supp.2d 1206, 1215 (S.D. Ala. 2007); Ortega v. Chater, 933 F.Supp. 1071, 1075 (S.D. Fla. 1996) (noting that "present-day laboratory tests cannot prove the existence of migraine headaches[]" and holding that an ALJ improperly discounted a treating physician's opinion that a claimant was disabled by migraines, despite the fact that there were no laboratory tests confirming the existence or severity of the headaches, where the opinion of the treating physician was consistent, extensive, and substantiated by objective medical evidence that the claimant suffered from symptoms that were associated with severe migraine
In Thompson, the court determined that the ALJ erred in declining to assign determinative weight to the treating physician's opinion that the plaintiff suffered from severe migraines because of the lack of clinical examination findings. 493 F. Supp. 2d at 1214-15. The court stated that the treating physician set forth "medical signs and symptoms sufficient to justify his diagnoses and treatment of the same." Id. at 1215. It concluded that based upon the totality of the evidence, the ALJ's reasons for discounting the opinion of the claimant's treating physician were not based on substantial evidence. Id.
The same is true here. Indeed, there is no actual test to diagnose migraine headaches. CT or MRI scans cannot be used to diagnose them. See Migraine diagnosis,
The ALJ also made a broad statement that Smith's description of her symptoms and limitations has generally been inconsistent and unpersuasive, but failed to indicate what record evidence was inconsistent in Smith's statements about her migraine headaches. The ALJ said there were inconsistencies in Smith's reports about the effectiveness of her medications, because while she reported at one point to Dr. Otero that Excedrin Migraine wasn't effective, as of the hearing date she was taking that medicine. (Tr. at 95-96.) But Smith stated at her hearing that she was taking Excedrin Migraine at the time because her doctor, who she would see five days later, had taken her off Sumatriptan and was trying her on Excedrin Migraine to see if it would help. (Id.)
The ALJ also rejected Smith's limitations because of her self-reported daily activities, which she said included taking care of her personal needs, preparing basic meals, playing with her children, and helping her children get ready for school. However, Smith indicated that when she doesn't have a migraine, she can participate in the daily activities she indicated, albeit at a slower pace than in the past and with breaks. (Tr. at 276, 277, 279, 287, 289.) The ALJ didn't factor in any limitation when Smith has a severe migraine or that she gets assistance from her mother with housework and shopping, her mother and step-dad help her with her children when she's not able, and they handle her finances for her. (Tr. at 70-71, 100-01, 287-89.)
Because the ALJ failed to acknowledge or evaluate the severity, duration, and/or frequency of Smith's severe migraines on her ability to perform work activity and rejected Dr. Otero's diagnoses that Smith suffered from intractable migraines because of the lack of corroborating objective evidence, her RFC assessment and decision are unsupported by substantial evidence. Remand is required for appropriate consideration of the evidence. To the extent the ALJ determines that Dr. Otero's opinions are not due controlling weight, she must not only articulate her reasons, but her reasons must be legally correct, and supported by substantial evidence in the record. See, e.g., Crawford, 363 F.3d at 1159-60. Additionally, upon remand, the ALJ should reassess Plaintiff's credibility. The ALJ's assessment of Plaintiff's credibility placed an undue emphasis on the absence of objective medical evidence. However, given the nature of chronic migraines, upon remand, the ALJ should reassess Plaintiff's credibility, giving due consideration to the need to go beyond objective medical evidence in properly evaluating such cases.
For the reasons set forth herein, and upon careful consideration of the administrative record and briefs of the parties, the decision of the Commissioner of Social Security denying Plaintiff's claims for DIB and SSI is
