LEONARD T. STRAND, United States Magistrate Judge.
Plaintiff Des L. Mann seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for Social Security Disability benefits (DIB) and Supplemental Security Income benefits (SSI) under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Mann contends that the administrative record (AR) does not contain substantial evidence to support the Commissioner's decision that she was not disabled during the relevant period. For the reasons that follow, the Commissioner's decision will be reversed and remanded.
Mann was born in 1966 and has past work as a nurse and pizza maker. AR 23, 329. She filed applications for DIB and SSI on December 28, 2011, alleging a disability onset date of January 1, 2010. AR 13, 188, 190. She contends that she is disabled due to migraine headaches, as exacerbated by certain mental health issues. Doc. No. 13 at 3. Mann's claim was denied initially and on reconsideration. AR 113, 120, 129. She then requested a hearing before an Administrative Law Judge (ALJ) and ALJ Julie K. Bruntz conducted a hearing on November 5, 2013. AR 13, 31. The ALJ issued a decision on November 20, 2013, in which she denied Mann's claim. AR 13-25. Mann sought review by the Appeals Council, which denied review on March 7, 2014. AR 1-3. Thus, the ALJ's decision stands as the final decision of the Commissioner. AR 1.
On May 2, 2014, Mann filed a complaint (Doc. No. 3) in this court seeking review of the Commissioner's decision. On June 18, 2014, with the parties' consent (Doc. No. 6), the Honorable Linda R. Reade reassigned the case to Chief Magistrate Judge Jon S. Scoles for final disposition and entry of judgment. The case was reassigned to me on January 12, 2015. The parties have fully briefed the issues and the matter is now fully submitted.
A disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant 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 significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner looks to see "whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities." Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir.2003). "An impairment is not severe if it amounts only to a slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities." Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987). "The sequential evaluation process may be terminated at step two only when the claimant's impairment or combination of impairments would have no more than a minimal impact on her ability to work." Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled, regardless of age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.1998).
Fourth, if the claimant's impairment is severe, but it does not meet or equal one of the presumptively disabling impairments, then the Commissioner will assess the claimant's residual functional capacity (RFC) to determine the claimant's "ability to meet the physical, mental, sensory, and other requirements" of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). "RFC is a medical question defined wholly in terms of the claimant's physical ability to perform exertional tasks or, in other words, what the claimant can still do despite his or her physical or mental limitations." Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir.2003) (internal quotation marks omitted); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence the Commissioner will use to make a finding as to the claimant's RFC, but the Commissioner is responsible for developing the claimant's "complete medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help [the claimant] get medical reports from [the claimant's] own medical sources." 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain nonmedical evidence and
Fifth, if the claimant's RFC as determined in Step Four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to show that there is other work that the claimant can do, given the claimant's RFC as determined at Step Four, and his or her age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n. 5 (8th Cir.2000). The Commissioner must show not only that the claimant's RFC will allow the claimant to make an adjustment to other work, but also that the other work exists in significant numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir.2004); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant numbers in the national economy, then the Commissioner will find the claimant is not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). At Step Five, even though the burden of production shifts to the Commissioner, the burden of persuasion to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.2004).
The ALJ made the following findings:
AR 15-24.
The Commissioner's decision must be affirmed "if it is supported by substantial evidence on the record as a whole." Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.2006); see 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive...."). "Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion." Lewis, 353 F.3d at 645. The Eighth Circuit explains the standard as "something less than the weight of the evidence and [that] allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal." Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.1994).
In determining whether the Commissioner's decision meets this standard, the court considers "all of the evidence that was before the ALJ, but it [does] not re-weigh the evidence." Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir.2005). The court considers both evidence which supports the Commissioner's decision and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir.2010). The court must "search the record for evidence contradicting the [Commissioner's] decision and give that evidence appropriate weight when determining whether the overall evidence in support is substantial." Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir.2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir.1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Sec'y of Health & Human Servs., 879 F.2d 441, 444 (8th Cir.1989). The court, however, does not "reweigh the evidence presented to the ALJ," Baldwin, 349 F.3d at 555 (citing Bates v. Chater, 54 F.3d 529, 532 (8th Cir.1995)), or "review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir.1996) (citing Naber v. Shalala, 22 F.3d 186, 188 (8th Cir.1994)). Instead, if, after reviewing the evidence, the court finds it "possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the court] must affirm the [Commissioner's] denial of benefits." Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir.
Mann raises four issues:
Doc. No. 13 at 11-26. I will address each issue separately.
Mann notes that migraine headaches are her primary impairment and argues that the ALJ erroneously relied on a lack of "objective evidence" in denying her claim of disability. As the Commissioner notes, however, Mann does not explain why she believes the ALJ imposed an "objective evidence" requirement or relied on the lack of objective evidence to deny her claim. Mann simply cites the ALJ's lengthy summary of the medical evidence and states: "The ALJ then concluded that the objective medical evidence was consistent with the ALJ's residual functional capacity assessment (TR 23)." Doc. No. 13 at 14. The ALJ actually wrote as follows:
AR 23 [emphasis added]. Having carefully reviewed the ALJ's ruling, I find Mann's argument that the ALJ imposed an "objective evidence" requirement to be flat-out wrong. The ALJ imposed no such requirement but, instead, simply concluded that her RFC determination was consistent with (a) the objective medical findings, (b) the opinion evidence of record and (c)
At Step Three, the ALJ found that Mann does not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. AR 16. The ALJ specifically addressed Listing 12.04 (affective disorders) and found that Mann's impairment did not meet or medically equal either the "paragraph B" or "paragraph C" criteria for that listing. AR 16-17. Mann does not challenge this finding and, indeed, acknowledges that migraine headaches are not a listed impairment. However, she contends the ALJ erred in failing to address Listing 11.03 (non-convulsive epilepsy) and argues the record demonstrates that her impairment medically equals that listing.
The Supreme Court has explained the listings as follows:
Sullivan v. Zebley, 493 U.S. 521, 529-32, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990) [citations and footnotes omitted]. The purpose of the listings is to streamline the decision process by identifying claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational backgrounds. Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). Thus, if an impairment meets or equals one of the listings, the claimant is considered disabled regardless of age, education, and work experience. Kelley, 133 F.3d at 588.
The claimant has the burden of proving that his or her impairment meets or equals a listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir.2004). Remand is not required when an ALJ fails to explain why an impairment does not meet or equal a listed impairment "as long as the overall conclusion is supported by the record." Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir.2011).
Listing 11.03, which is part of the "Neurological" category of impairments, reads as follows:
POMS DI 24505.015(B)(7)(b). Mann argues that her situation is similar and that remand is required with directions that the ALJ consider Listing 11.03.
The Commissioner disagrees. She points out that Mann failed to raise Listing 11.03 during the administrative proceedings and argues, in any event, that the evidence fails to demonstrate that Mann's impairment medically equals that listing. As for the first point, I reject the Commissioner's apparent contention that Mann is at fault for the ALJ's failure to consider Listing 11.03.
Moreover, the possibility that Listing 11.03 might be relevant to a claim involving migraine headaches should not have come as a surprise to the ALJ. As noted above, the Commissioner's own manual — POMS — identifies that listing as the "most closely analogous" listing for a claimant who has "chronic migraine headaches." POMS DI 24505.015(B)(7)(b). Many federal courts, including this court and others in the Eighth Circuit, have discussed Listing 11.03 in connection with migraine headaches. See, e.g., Yeatman v. Colvin, No. 4:14-CV00255-JJV, 2014 WL 7330627, at *2 (E.D.Ark. Dec. 18, 2014) (remanding with directions to address Listing 11.03); Savage v. Colvin, 41 F.Supp.3d 763, 771 (S.D.Iowa 2014) (noting the claimant's argument that Listing 11.03 applied before reversing the ALJ's decision on other grounds); Theis v. Astrue, No. 3:10CV00193 JLH, 2011 WL 2601581, at *6 (E.D.Ark. July 1, 2011) (directing ALJ to consider Listing 11.03 on remand); Gettner v. Barnhart, No. C05-4096-MWB, 2006 WL 1192868, at *13 (N.D.Iowa May 2, 2006) (noting that the ALJ expressly addressed Listing 11.03 in connection with
Despite POMS, and the case law referenced above, neither the ALJ nor the state agency consultants who reviewed Mann's records made any reference to Listing 11.03. AR 16-17, 74-80. While Mann certainly could have brought that listing to the ALJ's attention, I find that the ALJ likewise could have — and should have — considered the listing without being asked to do so.
The real issue is: What is the remedy? If it is obvious that the evidence of record cannot possibly support a finding that Mann's impairment meets or equals Listing 11.03, then the ALJ's error would be harmless and remand would not be necessary. See, e.g., Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir.2008) (error is harmless if there is no indication that the ALJ would have decided the claim differently). That is not the case here. Having carefully reviewed the record, I find that there is sufficient evidence of chronic, severe migraine headaches during the relevant period of time that the ALJ must consider whether that impairment medically equals Listing 11.03.
For example, Mann visited the Emergency Room on May 29, 2010, due to a migraine headache that had lasted four days. AR 381. She received Phenergan, Toradol and Vistaril intravenously. AR 382. She was back in the ER on July 6, 2010, with a migraine that had started the morning before. AR 383. She received an injection of Toradol, Phenergan and Nubain. AR 383-84.
Mann saw Mary Pat Rosman, D.O., on July 9, 2010, to discuss her frequent migraine headaches and was referred for a neurological evaluation. AR 352. On August 9, 2010, Mann told Dr. Rosman that she continued to have "recurrent severe headaches." AR 351. On August 17, 2010, Mann returned to Dr. Rosman due to a migraine headache that had started the night before. AR 350. Dr. Rosman administered an injection of Toradol, Nubain and Phenergan. Id.
On September 1, 2010, Mann reported that the frequency and severity of her migraine headaches had increased and that she was having migraines daily. AR 349. She told Dr. Rosman that she "wakes up with headaches." Id. On September 15, 2010, Dr. Rosman saw Mann again and noted that she had been in the ER with a migraine on September 9 and that the migraine had not resolved despite the administration Nubain, Phenergan and Toradol. AR 348. During the September 15 visit, Dr. Rosman administered injections of Norflex, Toradol and Nubain. Id. Mann visited the ER due to migraines on January 6, March 25, November 19 and December 12 of 2011, along with March 3 and June 9 of 2012. AR 387, 389, 392, 394, 396, 398, 404, 406. At times, the migraine lasted for several days before Mann went to the ER. See, e.g., AR 398.
On February 4, 2013, William Talman, M.D., a neurologist, found that Mann "has two type [sic] of headaches, a milder daily headache that seems not to interfere with her ADL's and a much more severe headache that is preceded by scintillating scotomata and accompanied by nausea and photophobia." AR 547. Mann was prescribed Depakote (valproic acid) and Compazine and was directed to withhold all other migraine medication. AR 546-47.
On March 8, 2013, Mann reported that Depakote was not helping. AR 588. She was advised that she is "a life long headache person" and that it was necessary to "give each medication a fair shot." AR 588-89. On March 26, 2013, Atif Zafar, M.D., noted that Mann had tried a variety of other medications, including Propranolol, TCAs, Topamax, Neurontin, Lamictal and "pretty much all opioids." AR 589.
Based on this medical evidence, Mann was entitled to have the ALJ conduct an analysis under Listing 11.03. If the ALJ had conducted such an analysis, her conclusion would be upheld so long as it fell within the "available zone of choice." See, e.g., Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir.2008). Unfortunately, the ALJ did not consider Listing 11.03, meaning there was no "choice" and, therefore, no "zone." I find that remand is necessary with directions that the ALJ consider whether Mann's migraine headaches meet or equal Listing 11.03.
Mann next contends that the ALJ failed to properly develop the record by obtaining an opinion about work-related limitations from a treating or examining source. The Commissioner acknowledges that the record contains no such opinion but argues that it was unnecessary because the ALJ had sufficient evidence to determine Mann's RFC.
The ALJ has a duty to fully and fairly develop the record, even when the claimant is represented by counsel. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (citing Warner v. Heckler, 722 F.2d 428, 431 (8th Cir.1983)). This duty includes "arranging for a consultative examination(s) if necessary, and making every reasonable effort to help [the claimant] get medical reports from [his or her] own medical sources." 20 C.F.R. § 416.945(a)(3). "Because the social security disability hearing is non-adversarial... the ALJ's duty to develop the record exists independent of the claimant's burden in the case." Stormo, 377 F.3d at 806 (citing Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir.2004)).
Where, as here, the ALJ finds that a claimant is unable to perform any past relevant work, the burden shifts to the Commissioner to show that there is other work that the claimant can do, given the claimant's RFC and his or her age, education, and work experience. Bladow v. Apfel, 205 F.3d 356, 358-59 n. 5 (8th Cir.2000). As a general rule, the Commissioner cannot make such a showing without opinion evidence from a treating or examining source. Nevland, 204 F.3d at 857. In Nevland, the Eighth Circuit Court of Appeals stated:
Id. [emphasis in original]. However, Nevland "does not compel remand in every case in which the administrative record lacks a treating doctor's opinion." Hattig v. Colvin, No. C12-4092 MWB, 2013 WL 6511866, at *10 (N.D.Iowa Dec. 12, 2013). Even without an opinion from a treating or examining source, the ALJ's decision may be affirmed if there is other medical evidence demonstrating the claimant's ability to function in the workplace. Id.; see also Agan v. Astrue, 922 F.Supp.2d 730, 756 (N.D.Iowa 2013). The question is whether there is sufficient evidence of "how [the claimant's] impairments ... affect [her] residual functional capacity to do other work," or her "ability to function in the workplace." Hattig, 2013 WL 6511866, at *11 (quoting Nevland, 204 F.3d at 858).
As I summarized in Section V(B)(2), supra, the record contains evidence that Mann suffered from recurring, severe migraine headaches. However, the record contains no opinion evidence from any treating or examining source as to Mann's RFC. Thus, in light of Nevland, the question is whether there is sufficient other medical evidence to support the ALJ's findings as to Mann's ability to function in the workplace. I find that there is not.
On June 19, 2012, Mann underwent a consultative examination by Divya Narayanaswamy, M.D., at Northeast Iowa Family Practice Center. AR 428-29. The report of that examination is as close as the record gets to containing an opinion from a treating or examining source. Dr. Narayanaswamy found that Mann suffered from "Migraine headaches, uncontrolled," along with other impairments including depression and anxiety. AR 428. She noted that Mann reported suffering from severe migraines about five times per week and that her headaches are "associated with vomiting and photophobia." Id. She found that Mann had been either "under treated or not appropriately treated" and recommended that she be referred to a neurologist. AR 429. However, Dr. Narayanaswamy made no findings as to how Mann's headaches affect her RFC or her ability to function in the workplace. AR 428-29.
On February 4, 2013, Mann was examined by a medical student, Lindsay Dickerhoff, under the supervision of William Talman, M.D., a neurologist. AR 546-47. As I noted earlier, Dr. Talman found that Mann suffers from two types of headaches, "a milder daily headache that seems not to interfere with her ADL's and a much more severe headache that is preceded by scintillating scotomata and accompanied by nausea and photophobia." AR 547. Both Ms. Dickerhoff and Dr. Talman made note of the fact that Mann had tried a wide variety of medications, with little success. AR 546-47. Again, however, Dr. Talman provided no opinion as to the impact of Mann's headaches on her RFC or her ability to function in the workplace.
The Commissioner relies on the opinions of three state agency consultants who reviewed Mann's records but did not examine her. Doc. No. 14 at 15. Having carefully reviewed those opinions, and the medical evidence upon which they are based, I find that they do not fill the Nevland gap. While there is ample evidence that Mann suffers from recurring, serious migraine headaches, neither the consultative opinions nor the underlying medical records adequately address the impact those headaches have on Mann's ability to function in a work environment. The ALJ should have developed the record further by obtaining an opinion on this issue from a treating or examining source.
Mann's final argument is that the ALJ's findings as to her RFC are flawed because they do not fully address her need for unscheduled absences due to migraine headaches. Because I have already determined that remand is necessary, there is no need to address this issue at length. However, I do agree with Mann that if the ALJ again reaches Step Four (that is, does not find Mann to be disabled at Step Three), the RFC findings should explicitly discuss any limitations relating to migraine headaches. See, e.g., Stewart v. Colvin, No. C13-2029, 2014 WL 1165870, at *13 (N.D.Iowa Mar. 21, 2014).
For the reasons set forth herein, the Commissioner's determination that Mann was not disabled is
On remand, the ALJ shall obtain an opinion from a treating or examining source that specifically addresses the impact of Mann's migraine headaches on her ability to function in the workplace. Based on that additional evidence, that ALJ shall then reassess Mann's claim through the sequential evaluation process. Among other things, this analysis should include (a) consideration of whether Mann's impairment meets or equals Listing 11.03 and, if not, (b) a reevaluation of Mann's RFC and the resulting impact of that RFC on Mann's ability to perform past relevant work and other work that exists in significant numbers in the national economy.
Doc. No. 14 at 12.
