Onuska v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

STEPHANIE ONUSKA,

Plaintiff,

v. Case No. 8:18-cv-1963-T-SPF

ANDREW M. SAUL,1

Commissioner of the Social

Security Administration,

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of her claims for Supplemental Security

Income (“SSI”). As the Administrative Law Judge’s (“ALJ”) decision failed to employ

the proper standards and was not supported by substantial evidence, the Commissioner’s

decision is reversed and remanded.

PROCEDURAL BACKGROUND

Plaintiff applied for SSI on November 3, 2014 (Tr. 224–29). The Commissioner

denied Plaintiff’s claim both initially and upon reconsideration (Tr. 69–79, 82–93). The

ALJ held a hearing at which Plaintiff appeared and testified (Tr. 31–63). Following the

hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and,

1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of

the Federal Rules of Civil Procedure, Andrew M Saul is substituted for Acting

Commissioner Nancy A. Berryhill as the defendant in this suit.

accordingly, denied Plaintiff’s claim for benefits (Tr. 12–30). Subsequently, Plaintiff

requested review from the Appeals Council, which was denied (Tr. 1–6). Plaintiff then

timely filed a complaint with this Court (Doc. 1). The case is now ripe for review under

42 U.S.C. §§ 405(g), 1383(c)(3).

FACTUAL BACKGROUND AND THE ALJ’S DECISION

Plaintiff, who was born in 1984, claimed disability beginning October 1, 2008,

which she later amended to November 3, 2014 (Tr. 15, 24). Plaintiff has a ninth-grade

education and is illiterate (Tr. 24, 39). Plaintiff has no past relevant work experience (Tr.

24). Plaintiff alleged disability due to bipolar disorder, learning disabilities, anxiety,

depression, and migraines (Tr. 69, 55–56).

In rendering the administrative decision, the ALJ concluded that Plaintiff had not

engaged in substantial gainful activity since November 3, 2014 (Tr. 17). After conducting

a hearing and reviewing the evidence of record, the ALJ determined Plaintiff had the

following severe impairments: borderline intellectual functioning, anxiety disorder, and

depressive disorder (Tr. 17). Notwithstanding the noted impairments, the ALJ

determined Plaintiff had no impairment or combination of impairments that met or

medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1 (Tr. 18). The ALJ then concluded that Plaintiff retained the residual

functional capacity (“RFC”) to perform a full range of work at all exertional levels but

with the following non-exertion limitations: Plaintiff is limited to no work with the

general public, and to occasional contact with co-workers and supervisors. She is also

limited to performing routine and repetitive tasks with no quotas (Tr. 21).

After considering Plaintiff’s noted impairments and the assessment of a vocational

expert (“VE”), the ALJ determined Plaintiff has no past relevant work (Tr. 24). The VE,

however, testified that Plaintiff could perform other jobs existing in significant numbers

in the national economy (Tr. 24). Based on Plaintiff’s age, education, work experience,

RFC, and the testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 25).

LEGAL STANDARD

To be entitled to benefits, a claimant must be disabled, meaning he or she must be

unable 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), 1382c(a)(3)(A). A “physical or mental impairment”

is an impairment that results from anatomical, physiological, or psychological

abnormalities, which are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.

§§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential

review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this

process, the ALJ must determine, in sequence, the following: whether the claimant is

currently engaged in substantial gainful activity; whether the claimant has a severe

impairment, i.e., one that significantly limits the ability to perform work-related functions;

whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404

Subpart P, Appendix 1; and whether the claimant can perform his or her past relevant

work. If the claimant cannot perform the tasks required of his or her prior work, step five

of the evaluation requires the ALJ to decide if the claimant can do other work in the

national economy in view of his or her age, education, and work experience. 20 C.F.R.

§§ 404.1520(a), 416.920(a). A claimant is entitled to benefits only if unable to perform

other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(g),

416.920(g).

A determination by the Commissioner that a claimant is not disabled must be

upheld if it is supported by substantial evidence and comports with applicable legal

standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305

U.S. 197, 229 (1938) (internal quotation marks omitted)); Miles v. Chater, 84 F.3d 1397,

1400 (11th Cir. 1996). While the court reviews the Commissioner’s decision with

deference to the factual findings, no such deference is given to the legal conclusions.

Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citations

omitted).

In reviewing the Commissioner’s decision, the court may not re-weigh the evidence

or substitute its own judgment for that of the ALJ even if it finds that the evidence

preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the

reviewing court sufficient reasoning for determining that he or she has conducted the

proper legal analysis, mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is

thus limited to determining whether the findings of the Commissioner are supported by

substantial evidence and whether the correct legal standards were applied. 42 U.S.C. §

405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

ANALYSIS

Plaintiff raises one issue on appeal—whether the ALJ erred by failing to fully and

adequately consider the full range and effects of Plaintiff’s headaches in assessing her

RFC. For the reasons that follow, the ALJ’s decision is not supported by substantial

evidence.

Plaintiff testified at the hearing that she suffers from headaches, despite her use of

medications, about four times a week and that her headaches caused her nausea, throwing

up, and dizziness that requires her to lay down in a dark room in complete silence for an

hour or so (Tr. 55–56). The ALJ found that Plaintiff’s migraines were a non-severe

impairment (Tr 17). As support for his finding, the ALJ stated:

As for the claimant's migraine headaches, the neurological consultation on

October 25, 2016, notes that the claimant was diagnosed with chronic

migraine without aura. The claimant reported that her medication partially

helps her migraines. She reported that her headaches do[] not cause any

nausea, dizziness, photophobia or blurred vision. However, she reported

experiencing some confusion with her headaches. In November 2016, the MRI

of the head show[ed] no evidence of any significant intracranial stenosis and

no aneurysm was seen. In February 2017, the claimant reported that rest and

her medications make[] her headaches better. The record does not contain any

extensive treatment, nor is there any evidence of any significant limitation

caused by her headaches. Therefore, the undersigned finds that her migraine

headaches are not severe.

(Tr. 17) (internal citations omitted). Plaintiff challenges the ALJ’s finding at step two by

arguing that (1) the ALJ’s analysis misstates the evidence; (2) the ALJ improperly based

his decision on the mere lack of objective evidence regarding Plaintiff’s migraines; and (3)

when considering the VE’s testimony that there would be no work for an individual that

needs to lay down two times a week for a period of one hour due to headaches, Plaintiff

should have been found disabled. The Commissioner, on the other hand, argues that

Plaintiff relies on her subjective complaints to show her migraines are severe, but

subjective complaints alone are insufficient to establish a severe impairment. Further, the

Commissioner argues that any error at step two is harmless.

At step two of the sequential evaluation process, a claimant must show that he or

she suffers from an impairment or combination of impairments that significantly limits his

or her physical or mental ability to do basic work activities. See 20 C.F.R. §§

404.1520(a)(4)(ii), 404.1521, 416.920(a)(4)(ii), 416.921. “[T]he ‘severity’ of a medically

ascertained disability must be measured in terms of its effect upon ability to work, and not

simply in terms of deviation from purely medical standards of bodily perfection or

normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). An impairment or

combination of impairments is not considered severe where it does not significantly limit

the claimant’s physical or mental ability to perform basic work activities. Turner v. Comm’r

of Soc. Sec., 182 F. App’x 946, 948 (11th Cir. 2006) (citations omitted); 20 C.F.R. §§

404.1521, 416.921.

The ALJ’s finding that Plaintiff’s headaches were not a severe impairment is not

supported by substantial evidence. First, as argued by Plaintiff, the ALJ incorrectly stated

that the Plaintiff was not suffering from nausea, dizziness, and photophobia, when these

specific symptoms were reflected in the record (Tr. 17, 55–56). See Bissinger v. Comm’r of

Soc. Sec., No. 6:13-CV-1602-ORL-31,2014 WL 5093981, *5-6 (M.D. Fla. Oct. 9, 2014)

(finding that a misstatement of fact is not harmless if the misstatement is material or

integral to the ALJ’s ultimate decision).

Second, the ALJ improperly concluded that the objective evidence and medical

records did not support that Plaintiff’s migraines were a severe impairment. While the

ALJ points to medical notes indicating that Plaintiff’s headaches improved or were

controlled by her medication (Tr. 384, 431, 473), a review of the record shows that

Plaintiff’s headaches were treated for at least two years with pain medication with no

improvement and that Plaintiff reported only partial relief from taking the medication (Tr.

468–71). Moreover, the record indicates that due to her bad vascular headaches and

confusion associated with these headaches, Plaintiff underwent a magnetic resonance

angiography (MRA) to rule out any vascular pathology like aneurysm (Tr. 468–71).

Although the MRA showed “no evidence of any significant intracranial stenosis and no

aneurysm” (Tr. 17, 472), the MRA did not rule out the existence or intensity of Plaintiff’s

headaches. It only ruled out that the cause of the headaches was an aneurysm.

Moreover, even if no objective evidence supports the severity of Plaintiff’s

migraines, migraine headaches are “an impairment that is diagnosed by symptoms, not

by any x-ray, MRI, blood test, or laboratory result.” See Munroe-Wilson v. Berryhill, No.

8:17-CV-3054-T-CPT, 2019 WL 1397929, at *4 (M.D. Fla. Mar. 28, 2019) (citations

omitted). In other words, “[t]he existence or severity of migraines . . . cannot be confirmed

by objective testing.” Thomas v. Colvin, No. 3:15CV133-MCR/CJK, 2016 WL

114752322016 WL 11475232, at *5 (N.D. Fla. May 10, 2016).2 Therefore, based on

Plaintiff’s testimony of disabling headaches and the VE’s testimony that there would be

no work for an individual that needs to lay down two times a week for a period of one

hour due to headaches, the Court cannot conclude that substantial evidence supports the

ALJ’s finding that Plaintiff’s migraines were not a severe impairment. See Schink v.

Commr. of Soc. Sec., No. 17-14992, ___ F.3d___, 2019 WL 4023639, at *13 (11th Cir. Aug.

27, 2019) (“an ‘impairment is not severe only if the abnormality is so slight and its effect

so minimal that it would clearly not be expected to interfere with the individual’s ability

to work, irrespective of age, education or work experience.’” (citing McDaniel v. Bowen,

800 F.2d 1026, 1031 (11th Cir. 1986)).

The Commissioner argues, however, that any error committed by the ALJ at step

two is harmless. Ordinarily, the finding of any severe impairment is enough to satisfy an

ALJ’s duty at step two of the sequential evaluation process. See Packer v. Comm’r, Soc. Sec.

Admin., 542 F. App’x 890, 892 (11th Cir. 2013) (stating that if “the ALJ determined at

step two that at least one severe impairment existed; the threshold inquiry at step two

therefore was satisfied”). An ALJ must, however, consider all impairments, regardless of

severity, in conjunction with one another in performing the later steps of the evaluation.

Tuggerson-Brown v. Comm’r of Soc. Sec., 572 F. App’x 949, 951 (11th Cir. 2014). In other

2 The Commissioner cites to 20 C.F.R. § 416.928(a) for the proposition that a claimant’s

subjective complaints are insufficient to establish a severe impairment, the cited regulation

was no longer in effect at the time of the ALJ’s decision.

words, even when an impairment is found to be non-severe at step two, the ALJ must

consider the impairment in combination with others at steps three, four, and five of the

sequential evaluation processes. See Id.

At step four of the sequential evaluation process, the ALJ stated that he carefully

considered the entire record and all symptoms in evaluating Plaintiff’s RFC (Tr. 22).

Although similar statements have been found to be enough to demonstrate that the ALJ

considered all necessary limitations and impairments, see Tuggerson-Brown at 951–52, here

the content of the ALJ’s decision shows otherwise. The ALJ’s RFC analysis does not

mention Plaintiff’s migraines but focuses on Plaintiff’s mental impairments. Moreover,

although, the ALJ generally states that Plaintiff’s “medications help[] her pain,” the ALJ

fails to identify whether he is referring to Plaintiff’s migraines or her numerous physical

ailments (Tr. 22, 473–585). In light of the ALJ’s failure to consider Plaintiff’s headaches

at step four of the sequential evaluation process, the ALJ’s error at step two is not

harmless. See Schink, 2019 WL 4023639, at *16–17 (holding that an ALJ error as to the

severity of a plaintiff’s mental impairments was not harmless because the ALJ’s RFC

discussion was focused on the plaintiff’s physical impairments, and while it mentioned

the plaintiff’s mental impairments, the discussion contained no real analysis of their effects

on the plaintiff’s RFC).

CONCLUSION

The ALJ’s decision that Plaintiff’s headaches are a non-severe impairment is not

supported by the record and the ALJ’s error at step two is not harmless. The case is

therefore remanded for further consideration of Plaintiff's headaches. Accordingly, it is

hereby

ORDERED:

1. The decision of the Commissioner is reversed and remanded pursuant to

sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with

this Order.

2. The Clerk is directed to enter final judgment in favor of the Plaintiff and close

the case.

ORDERED in Tampa, Florida, on September 20, 2019.

□□ Ae

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE

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