WEIDEKAMP v. KIJAKAZI

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

LISA W.,1 )

)

Plaintiff, )

)

v. ) No. 1:20-cv-02829-MG-SEB

)

KILOLO KIJAKAZI, Acting Commissioner of the )

Social Security Administration, )

)

Defendant. )

ENTRY REVIEWING THE COMMISSIONER'S DECISION

In December 2016, Plaintiff Lisa W. filed for disability insurance benefits ("DIB") from

the Social Security Administration ("SSA"), alleging a disability onset date of February 15, 2010.

[Filing No. 12-5 at 4.] Her application was initially denied on May 19, 2017, [Filing No. 12-4 at

7-15], and upon reconsideration on September 12, 2017, [Filing No. 12-4 at 17-25]. Lisa W.

requested a hearing, and Administrative Law Judge Gladys Whitfield (the "ALJ") conducted

hearings on both June 27, 2019 and November 15, 2019. [Filing No. 12-2 at 40-145.] The ALJ

issued a decision on December 2, 2019, concluding that Lisa W. was not entitled to receive

benefits. [Filing No. 12-2 at 21-32.] The Appeals Council denied review on August 31, 2020.

[Filing No. 12-2 at 2-6.]

1 To protect the privacy interests of claimants for Social Security benefits, consistent with the

recommendation of the Court Administration and Case Management Committee of the

Administrative Office of the United States Courts, the Southern District of Indiana has opted to

use only the first name and last initial of non-governmental parties in its Social Security judicial

review opinions.

On October 31, 2020, Lisa W. filed this civil action asking the Court to review the denial

of benefits according to 42 U.S.C. § 405(g). [Filing No. 1.] The parties consented to the

jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and

Fed. R. Civ. P. 73. [Filing No. 11.]

I.

STANDARD OF REVIEW

"The [SSA] provides benefits to individuals who cannot obtain work because of a physical

or mental disability." Biestek v. Berryhill, __U.S.__, 139 S. Ct. 1148, 1151 (2019). Disability is

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." Stephens v. Berryhill,

888 F.3d 323, 327 (7th Cir. 2018) (citing 42 U.S.C. § 423(d)(1)(A)).

When an applicant appeals an adverse benefits decision, the Court's role is limited to

ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for

the ALJ's decision. Id. For purposes of judicial review, "substantial evidence" is such relevant

"evidence that 'a reasonable mind might accept as adequate to support a conclusion.'" Zoch v.

Saul, 981 F.3d 597, 601 (7th Cir. 2020) (quoting Biestek, 139 S. Ct. at 1154). "Although this Court

reviews the record as a whole, it cannot substitute its own judgment for that of the SSA by

reevaluating the facts, or reweighing the evidence to decide whether a claimant is in fact disabled."

Stephens, 888 F.3d at 327. Reviewing courts also "do not decide questions of credibility, deferring

instead to the ALJ's conclusions unless 'patently wrong.'" Zoch, 981 F.3d at 601 (quoting Summers

v. Berryhill, 864 F.3d 523, 528 (7th Cir. 2017)). The Court does "determine whether the ALJ built

an 'accurate and logical bridge' between the evidence and the conclusion." Peeters v. Saul, 975

F.3d 639, 641 (7th Cir. 2020) (quoting Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014)).

The SSA applies a five-step evaluation to determine whether the claimant is disabled.

Stephens, 888 F.3d at 327 (citing 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4)). The

ALJ must evaluate the following, in sequence:

(1) whether the claimant is currently [un]employed; (2) whether the claimant has a

severe impairment; (3) whether the claimant's impairment meets or equals one of

the impairments listed by the [Commissioner]; (4) whether the claimant can

perform her past work; and (5) whether the claimant is capable of performing work

in the national economy.

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000), as amended (Dec. 13, 2000) (citations

omitted). "If a claimant satisfies steps one, two, and three, she will automatically be found

disabled. If a claimant satisfies steps one and two, but not three, then she must satisfy step four.

Once step four is satisfied, the burden shifts to the SSA to establish that the claimant is capable of

performing work in the national economy." Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).

After step three, but before step four, the ALJ must determine a claimant's residual

functional capacity ("RFC") by evaluating "all limitations that arise from medically determinable

impairments, even those that are not severe." Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).

In doing so, the ALJ "may not dismiss a line of evidence contrary to the ruling." Id. The ALJ uses

the RFC at step four to determine whether the claimant can perform her own past relevant work

and if not, at step five to determine whether the claimant can perform other work. See 20 C.F.R.

§ 404.1520(a)(4)(iv)-(v). The burden of proof is on the claimant for steps one through four; only

at step five does the burden shift to the Commissioner. See Clifford, 227 F.3d at 868.

If the ALJ committed no legal error and substantial evidence exists to support the ALJ's

decision, the Court must affirm the denial of benefits. Stephens, 888 F.3d at 327. When an ALJ's

decision does not apply the correct legal standard, a remand for further proceedings is usually the

appropriate remedy. Karr v. Saul, 989 F.3d 508, 513 (7th Cir. 2021). Typically, a remand is also

appropriate when the decision is not supported by substantial evidence. Briscoe ex rel. Taylor v.

Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). "An award of benefits is appropriate only where all

factual issues have been resolved and the 'record can yield but one supportable conclusion.'" Id.

(quoting Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993)).

II.

BACKGROUND

Lisa W. was 33 years old on February 15, 2010, the date of her alleged onset of disability,

and was 40 years old at the time of her December 2016 application. [Filing No. 12-2 at 30.] Lisa

W.'s date last insured is December 31, 2018. [Filing No. 12-2 at 23.] To qualify for DIB, she must

show that she was disabled as of December 31, 2018. See Martinez v. Astrue, 630 F.3d 693, 699

(7th Cir. 2011).

Lisa W. completed a high school education, and she has a master's degree in social work.

[Filing No. 12-2 at 109.] She has past relevant work experience as a customer service clerk,

computer operator, online merchandiser, child care provider, animal caretaker, survey worker, and

research assistant. [Filing No. 12-2 at 30.] For the ten years immediately preceding her alleged

onset date, Lisa W. worked in Washington, D.C. as a research associate. [Filing No. 12-2 at 106.]

After that, she moved to Indiana to live with her parents and worked a variety of jobs, including

babysitting, dog sitting, and administering a survey for a non-profit organization. [Filing No. 12-

2 at 106-108.] Starting in February 2019, she began performing customer service work for

Goodwill and remained in that position through her hearing dates. [Filing No. 12-2 at 23.] Lisa

W.'s original application alleges that she is unable to work because she suffers from migraines,

major depressive disorder, neck pain, back pain, sleep apnea, temporomandibular joint dysfunction

with headaches, flat feet (which cause back pain), high blood pressure, rosacea, pre-diabetes,

obesity, and adenomyosis. [Filing No. 12-6 at 5.]2

The ALJ followed the five-step sequential evaluation set forth in 20 C.F.R.

§ 404.1520(a)(4) and concluded that Lisa W. was not disabled and therefore did not qualify for

benefits. [Filing No. 12-2 at 32.] Specifically, the ALJ found as follows:

• At Step One, Lisa W. had not engaged in substantial gainful activity3 during the

period at issue (at least for purposes of the decision). [Filing No. 12-2 at 23 ("The

undersigned finds the claimant is currently employed at Goodwill and earning

above SGA. However, the undersigned finds that since the claimant can be denied

at a later step, the undersigned will continue with the sequential evaluation.").]

• At Step Two, Lisa W. had the following severe impairments: "Cervical spine

disorder, obesity, and major depressive disorder." [Filing No. 12-2 at 24.]

• At Step Three, Lisa W. did not have an impairment or combination of impairments

that met or medically equaled the severity of one of the listed impairments. [Filing

No. 12-2 at 24.]

• After Step Three but before Step Four, Lisa W. had the RFC "to perform light work

as defined in 20 CFR 404.1567(b) except: The claimant can occasionally climb

ramps and stairs as well as occasionally balance and stoop, but never climb ladders,

ropes, or scaffolds and never kneel, crouch, or crawl. She can frequently push and

pull as well as reach sideways and forward, but occasionally overhead reach. She

can continuously handle, finger, or feel. She must avoid all exposure to unprotected

heights, hazardous moving machinery, and avoid any rapid head or neck

movements. She can have at least occasional, superficial interaction with

coworkers, supervisors, and general public. She can do simple and more complex

work. She must avoid all strobe lights or flashing lights in ordinary course of

business. She cannot perform any job where driving is required to perform

functions of the job. She cannot work in any job exceeding level three, moderate

noise level. She cannot do fast-paced production requirements." [Filing No. 12-2

at 26.]

2 The relevant evidence of record is amply set forth in the parties' briefs and need not be repeated

here. Specific facts relevant to the Court's disposition of this case are discussed below.

3 Substantial gainful activity is defined as work activity that is both substantial (i.e., involves

significant physical or mental activities) and gainful (i.e., work that is usually done for pay or

profit, whether or not a profit is realized). 20 C.F.R. § 404.1572.

• At Step Four, the ALJ found that Lisa W. is unable to perform her past relevant

work. [Filing No. 12-2 at 30.]

• At Step Five, relying on the testimony of a vocational expert ("VE") and

considering Lisa W's age, education, work experience, and RFC, there are jobs that

exist in significant numbers in the national economy that she could perform, such

as sorter, inspector, packing, inspector, and assembler. [Filing No. 12-2 at 31.]

III.

DISCUSSION

Lisa W. argues that the ALJ erred: (1) by not adequately addressing absences and time off

task in the RFC determination; (2) by failing to consider whether her migraine headaches met or

equaled Listing 11.02; and (3) by failing to create an accurate and logical bridge between the

evidence and the findings.

A. Migraine Headaches and the RFC Finding

Lisa W. argues that the ALJ failed to consider the number of absences and time off work

necessary to address Lisa W.'s recurring migraines in the RFC finding. [Filing No. 15 at 22.] She

notes that she left her research associate job in 2010 because of excessive absences and that despite

medical treatment, she still suffers from frequent migraine headaches. [Filing No. 15 at 22-23.]

She says the ALJ did not consider the frequency of her migraine headaches in determining her

RFC. [Filing No. 15 at 25.] This omission, Lisa W. says, is due in part to the ALJ's determination

at Step Two that her migraines are a non-severe, rather than severe, impairment. [Filing No. 15 at

25.]

The Commissioner responds that the ALJ was entitled to rely on the testimony of Dr. Lee

Fischer, M.D., an impartial medical expert ("IME") who found that Lisa W.'s migraines were not

severe and did not pose any functional limitations (including time off task and absences). [Filing

No. 17 at 6.] The reliance on Dr. Fischer's opinion, the Commissioner argues, is especially

appropriate in this case which "involved a lengthy medical record with mental and physical record"

and that it was "prudent" for the ALJ to arrange for two IMEs to testify at the hearings. [Filing

No. 17 at 6.]

In reply, Lisa W. argues that Dr. Fischer's opinion is flawed and belies other medical

evidence concerning her migraine headaches, including opinions from her treating physicians.

[Filing No. 20 at 1-3.]

Because Lisa W.'s arguments focus on the ALJ's analysis (or alleged lack thereof) of

limitations posed by her migraine headaches, the Court begins with a summary of the evidence on

that front. Lisa W. reported first experiencing migraine headaches in the fall of 1999. [Filing No.

12-6 at 67.] They became worse, and Lisa W. testified that she was asked to resign from her

research associate position in 2010 because of absences, which were due in part to her migraine

headaches. [Filing No. 12-2 at 102.] In September 2010, Lisa W. presented for a neurological

consultation with neurologist Dr. James Fesenmeier, M.D. [Filing No. 12-7 at 59-60.] Dr.

Fesenmeier noted that Lisa W. was reporting a long history of headaches and that she was

experiencing daily headaches that she "describes as an aching pain, but then about 4 times a month,

she will have a more severe throbbing or stabbing pain." [Filing No. 12-7 at 59.]

In June 2011, she reported having about two headaches per week. [Filing No. 12-8 at 2.]

Lisa W.'s neurologist, Dr. Kristi George, M.D., diagnosed her with "common migraine headaches"

and "vertigo associated with migraines" in the summer of 2011. [See, e.g., Filing No. 12-12 at

247.] In August 2011, Lisa W. reported having two to three headaches each week. [Filing No.

12-12 at 251.] In February 2012, Lisa W. saw Dr. George and reported that "[s]he had a really

bad month last month, probably the worst month she had ever had as far as headaches" and that

she was experiencing these headaches about eight days each month. [Filing No. 12-12 at 258-59.]

In April 2012, Lisa W. told Dr. George that she was feeling better but still had headaches "3 times

a week, 2 out of 3 she is able to get to go away with some relaxation techniques and pressure

points. Once every 10-14 days she has to take a Vicodin." [Filing No. 12-12 at 261.]

In March 2013, Lisa reported to Dr. George that she was experiencing "more headaches,

pretty much daily again." [Filing No. 12-12 at 255.] In January 2014, Lisa W. reported that "she

still has headaches, major one about once a week." [Filing No. 12-12 at 264.] In February 2015,

Dr. George noted that Lisa W. reported having migraine attacks between one and three times a

week, and Dr. George recommended that Lisa W. receive Botox injections to treat her migraines.

[Filing No. 12-12 at 268.] In April 2015, Lisa W. reported to Dr. George that she had experienced

a headache "every single day this month" and that "[m]any of them are severe with throbbing,

photophobia and nausea." [Filing No. 12-12 at 279.] Lisa W. began receiving Botox treatments

in May 2015 to treat her migraines. [See Filing No. 12-12 at 283.] Follow up notes from

November 2015, indicated that "Lisa is definitely having benefit from the [B]otox, she is only

having about two migraines a week." [Filing No. 12-12 at 289.] Lisa W. continued receiving

Botox treatments during 2016 and into 2017. [See, e.g., Filing No. 12-12 at 296-98.]

As part of her application for DIB, Lisa W. reported in March 2017 that she has 15 migraine

headaches per month. [Filing No. 12-6 at 67.] At that time, she received Botox injections and

took prescription medications to treat her migraines. [Filing No. 12-6 at 67.] When she

experiences a migraine, she says she needs to lie down and place an ice pack on her head and stay

there until the migraine goes away. [Filing No. 12-6 at 67.] As part of her DIB application, the

reviewing state agency found Lisa W.'s migraines were a severe impairment but did not meet or

medically equal a listing. [Filing No. 12-3 at 7; Filing No. 12-3 at 22.]

In December 2017, Dr. George completed a "Work Restriction/Physical Demand Form" in

connection with Lisa W. seeking assistance through the State of Indiana's vocational rehabilitation

services. [Filing No. 12-17 at 215-17.] Dr. George indicated that Lisa W.'s ability to work a full

eight-hour workday "depend[ed] on migraine episodes," indicating that she could work "no hours

with episodes" and "up to 2 h[ou]rs without episodes." [Filing No. 12-17 at 216.] In response to

questions about Lisa W.'s ability to carry things and complete repetitive motions, Dr. George

qualified her answers by stating that Lisa W. could perform such tasks only if she was not having

migraine episodes. [Filing No. 12-17 at 216.] Dr. George provided the following additional

comment: "Patient suffers from a long history of chronic intractable migraines that occur more

than twice a week lasting duration is flexible due to unknown exact [sic] could be 24 [hours] – 72

[hours] this causes her to become sensitive to lights, sounds, smells[;] causes nausea, vomiting,

vertigo." [Filing No. 12-17 at 217.] The vocational rehabilitation services agency found that Lisa

W. "is unable to maintain focus for long periods of time due to her migraines." [Filing No. 12-17

at 225.]

Lisa W. testified at her hearing before the ALJ that she has missed work because of her

migraines. [Filing No. 12-2 at 121.] She further testified that some therapies, such as Botox and

Invisalign treatments, have improved the length and severity of her migraines, but that she no

longer receives Botox treatments because her health insurer required her to have 15 headaches per

month to cover the treatments and the prior Botox treatments had reduced her headaches per month

to less than 15. [Filing No. 12-2 at 121-22.] In response to questioning from the ALJ, she

explained that even though she is still having two migraine headaches per week, she can work at

her customer service job with Goodwill because the migraines are less intense and shorter in

duration than those she previously experienced. [Filing No. 12-2 at 122-23.] She testified that

now her migraines typically last "no more than a couple hours" but during the period for which

she is claiming DIB, they lasted "[u]p to two days." [Filing No. 12-2 at 122.]

The IME, Dr. Fischer, testified that Lisa W.'s migraine headaches were not a severe

impairment. [Filing No. 12-2 at 57.] He cited Lisa W.'s report to her physician in June 2011 that

she had experienced migraines for 10 to 12 years before that, i.e., years before her alleged onset

date, and thus "she's had essentially the same condition and certainly there's no evidence that it

worsened over the last 15 years and after her onset date in 2010, if anything it probably appears

that she got better once she was getting some Botox." [Filing No. 12-2 at 58-59.] Dr. Fischer also

cited a notation in a June 2011 consult by Dr. George, in which Dr. George states that Lisa W.

"has had MRIs, electronystagmograms, extensive testing in the past. I do have some of these

records and it looks like things have been normal." [Filing No. 12-12 at 303.] Dr. Fischer testified

that because he found Lisa W.'s migraine headaches to be non-severe, "that almost implies there

are no functional limitations." [Filing No. 12-2 at 67.] When asked whether migraine headaches

would cause increased absences from work, Dr. Fisher testified that they would, "[i]f they have a

migraine during the workday, but there's no law that says they can't have a migraine on a weekend

when they're not working anyway and, therefore, they wouldn't miss any work." [Filing No. 12-2

at 68.]

The VE testified that being off task 15% or more of the work day would preclude

competitive employment. [Filing No. 12-2 at 139.] The VE also opined that being absent from

work two or more days per month would preclude competitive employment. [Filing No. 12-2 at

139.]

The ALJ's RFC finding did not include a limitation posed by absences or time off task.

[Filing No. 12-2 at 26.] In assessing Lisa W.'s migraines, the ALJ found that Lisa W.'s migraines

constituted a non-severe impairment, finding that Lisa W. "has not alleged, and the record does

not support, that migraines … ha[ve] caused more than minimal work-related difficulties." [Filing

No. 12-2 at 24.] Moving to the RFC assessment, the ALJ found that Lisa W.'s statements about

the limiting effects of her migraines were "not entirely consistent with the medical evidence and

other evidence in the record for the reasons explained in this decision." [Filing No. 12-2 at 27.]

The ALJ found Dr. Fischer's testimony to be highly persuasive. [Filing No. 12-2 at 29.] The ALJ

found that Dr. George's assessment for the vocational rehabilitation program to be "less

persuasive," but the ALJ incorrectly attributed Dr. George's opinion as being authored by Kyle

Adcock, a vocational rehabilitation agency worker (to whom the opinion was addressed), rather

than Lisa W.'s treating neurologist, Dr. George. [Filing No. 12-2 at 30.] The ALJ said the opinion

was less than persuasive because "Mr. Adcock did not personally examine the claimant, but rather

assessed her based on the claimant's subjective complaints rather than the medical evidence of

record." [Filing No. 12-2 at 30.]

An RFC represents "the maximum a person can do—despite his limitations—on a regular

and continuing basis, which means roughly eight hours a day for five days a week." Pepper v.

Colvin, 712 F.3d 351, 362 (7th Cir. 2013) (internal quotation marks omitted). In determining an

individual's RFC, "the ALJ must evaluate all limitations that arise from medically determinable

impairments, even those that are not severe, and may not dismiss a line of evidence contrary to the

ruling." Villano, 556 F.3d at 563 (emphasis added). An ALJ must provide more than a "cursory

analysis" for rejecting limitations alleged by a claimant. Id. That is so because the ALJ must build

an "accurate and logical bridge" between the evidence and the result. Varga v. Colvin, 794 F.3d

809, 813 (7th Cir. 2015).

Here, the ALJ failed to sufficiently address and confront evidence of Lisa W.'s migraine

headaches in formulating the RFC. The first and most glaring issue is that the ALJ incorrectly

attributed a report from Lisa W.'s treating neurologist (Dr. George) to a vocational rehabilitation

worker to whom the report was addressed (Mr. Adcock). This mistake of fact undermines the

ALJ's subsequent analysis of the report, which the ALJ discounted because Mr. Adcock did not

personally examine Lisa W. Thus, the ALJ's decision fails to build a logical bridge, and the

misattribution resulted in a credibility finding that was patently wrong.

The Court finds the RFC analysis troublesome for the additional reason that, although the

record is replete with complaints about Lisa W.'s migraine headaches, the ALJ's decision does not

describe, analyze, or summarize the medical evidence or symptoms on this front at all. See

Deborah M. v. Saul, 994 F.3d 785, 788 (7th Cir. 2021) ("[A]lthough the ALJ need not discuss

every piece of evidence in the record, he must confront the evidence that does not support his

conclusion and explain why it was rejected.") (quoting Indoranto v. Barnhart, 374 F.3d 470, 474

(7th Cir. 2004)). The Court is unable discern from the ALJ's decision whether the ALJ considered

the evidence regarding Lisa W.'s migraine headaches or the reasons for not including limitations

of absence and time off task posed by the headaches.

The ALJ relies on Dr. Fischer, but the ALJ had an obligation to confront the ways in which

Dr. Fischer's opinion (that the migraine headaches were not severe and posed no limitations)

conflicted with other evidence in the record, including absenteeism attributable to headaches, Lisa

W.'s testimony, and Dr. George's opinions regarding Lisa W.'s ability to work when experiencing

a migraine headache. Perhaps most troubling is the ALJ's statement, seemingly offered as the

reason for giving short shrift to the extensive evidence regarding migraines, that "[t]he claimant

has not alleged, and the record does not support, that migraines … has caused more than minimal

work-related difficulties." [Filing No. 12-2 at 24.] This statement is simply incorrect; Plaintiff

has been clearly alleging, throughout the DIB proceedings, that she cannot work because of

migraines and presented lengthy medical records addressing her migraine headaches and the

treatments that she has received to alleviate them.

Thus, the Court finds that the ALJ failed to build a logical bridge between the evidence and

the RFC finding and that the misattribution of Dr. George's report resulted in a patently wrong

credibility finding underlying the RFC. The Court will REMAND this case so that the ALJ can

fully consider the evidence of limitations posed by Lisa W.'s migraine headaches and so that the

ALJ can fully articulate findings regarding the same.

B. Other Issues

The Court need not resolve other issues raised by Lisa W. because the problems

surrounding the ALJ's assessment of Lisa W.'s migraine headaches is dispositive. Nevertheless,

on remand, the ALJ should take care to fulfill her obligation to build a logical bridge from the

evidence to the conclusion and consider all applicable listings.

IV.

CONCLUSION

For the reasons detailed above, the Court REVERSES the ALJ's decision denying Lisa

W. benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C. § 405(g)

(sentence 4) as detailed above. Final judgment will issue by separate entry.

Date: 3/22/2022 .

7 CeruD 7 \et2cdO

ario Garcia

United States Magistrate Judge

Southern District of Indiana

13

Distribution via ECF to all counsel of record.