The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MELISSA WIGGINTON CIVIL ACTION
VERSUS NO. 19-11418
SOCIAL SECURITY ADMINISTRATION SECTION: “G”(4)
ORDER AND REASONS
This matter is before the Court for a second time. Plaintiff Melissa Wigginton (“Plaintiff”)
has been pursuing her claim for disability insurance benefits (“DBI”) and supplemental security
income (“SSI”) under Titles II and XVI of the Social Security Act (the “Act”) since February
2013.1 The matter first came before this Court in 2015 when Plaintiff initially filed an action for
judicial review of the final decision of the Acting Commissioner of the Social Security
Administration (the “Commissioner” or “Defendant”) denying her claim for DBI and SSI.2 On
March 6, 2017, this Court remanded the case to the ALJ for a new hearing and for further
consideration of the evidence.3
After holding the mandated hearing on June 14, 2018, the ALJ issued an opinion on
October 2, 2018 again denying Plaintiff’s claim for DBI and SSI.4 On April 25, 2019, the Social
Security Appeals Council affirmed the ALJ’s decision.5 On June 28, 2019, Plaintiff filed this
1 Adm. Rec. at 170–179, 198.
2 Case No. 15-6694, Rec. Doc. 1.
3 Case No. 15-6694, Rec. Doc. 16.
4 Adm. Rec. at 399–432, 393.
5 Id. at 372–75.
second action for judicial review of that decision.6 The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B). On January 8, 2021, the
Magistrate Judge recommended that the Court affirm the ALJ’s decision.7 Currently pending
before the Court are Plaintiff’s objections8 to the Report and Recommendation.9
For the reasons discussed herein, the Court concludes that the ALJ mischaracterized the
evidence regarding Plaintiff headaches and the mischaracterization substantially affected
Plaintiff’s rights because the ALJ failed to acknowledge the 24 instances of headaches noted in
Plaintiff’s medical records from 2013 through 2015, in addition to multiple instances in 2016
through 2018, when weighing the Medical Source Statement from Plaintiff’s treating physician,
Dr. Allen Larcena. Therefore, the Court concludes that the ALJ’s decision to give little weight to
Plaintiff’s treating physician is not supported by substantial evidence in the record.
Moreover, because the ALJ found that Plaintiff’s headaches were a severe impairment, but
did not include any related limitation in Plaintiff’s residual functioning capacity, the ALJ shall call
a medical expert to determine if Plaintiff’s headaches, as described in the record, could reasonably
be expected to require Plaintiff to lay in a quiet, dark room for a day once or twice a month during
the alleged period of disability.10 If so, or if the medical expert finds other limitations due to
Plaintiff’s headaches, the limitations should be included when determining Plaintiff’s residual
6 Rec. Doc. 1.
7 Rec. Doc. 28.
8 Rec. Doc. 29.
9 Rec. Doc. 28.
10 SSR 96–2p. HALLEX I-2-5-34. See also infra notes 182 and 183.
2
functioning capacity. Accordingly, the Court sustains Plaintiff’s objections, rejects the Magistrate
Judge’s Report and Recommendation, and remands the case to the ALJ for a new hearing with a
medical expert to address Plaintiff’s headaches when determining her residual functioning
capacity.
I. Background
A. Procedural History
1. Initial Administrative Review and First Appeal
In February 2013, Plaintiff filed an application with the Social Security Administration for
SSI and DBI, alleging disability due to petit mal seizures, fibromyalgia, edema of her feet or
ankles, anxiety and depression, and chronic low platelets.11 After her claims were denied at the
agency level, Plaintiff requested a hearing before an ALJ, which was held on October 23, 2013.12
Plaintiff, her mother, and a vocational expert testified at the hearing.13
On February 14, 2014, the ALJ issued a decision denying Plaintiff’s application for
benefits.14 The ALJ analyzed Plaintiff’s claim pursuant to the five-step sequential evaluation
process.15 At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful
11 Adm. Rec. at 170–179, 198.
12 Id. at 32–73.
13 Id.
14 Id. at 13–27.
15 The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled.
20 C.F.R. §§ 404.1520(b), 416.920(b).
3
activity since May 9, 2012.16 At step two, the ALJ concluded that Plaintiff has the following severe
impairments: “complex partial seizures/epilepsy, Attention Deficit Hyperactivity Disorder
(“ADHD”), fibromyalgia, headaches, and anxiety.”17 At step three, the ALJ held that Plaintiff did
not have an impairment or combination of impairments that meets or medically equals the severity
of one of the listed impairments under the regulations.18
At step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work “with some additional constraints.”19 Specifically, the ALJ found that Plaintiff
“can occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds; can stand/walk for a
total of 6 hours in an 8-hour workday; can sit for 6 hours in an 8-hour workday; never climb
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she
has no severe mental or physical impairment which would limit the ability to perform basic work-related functions,
the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual’s impairment has lasted or can be expected to last for a continuous period of twelve
months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed
impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d),
416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a
severe impairment, the claimant’s residual functional capacity and its effect on the claimant’s past relevant work are
evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the
claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant’s
age, education, and work experience are considered to see whether he or she can meet the physical and mental demands
of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be
found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide
certain tables that reflect major functional and vocational patterns. When the findings made with respect to a claimant’s
vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not
disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969.
16 Adm. Rec. at 18.
17 Id.
18 Id. at 19.
19 Id. at 20.
4
ladders, ropes, scaffolds; occasionally climb ramps, stairs, balance, stoop, kneel, crouch and crawl;
and avoid all exposure to hazards in the workplace.”20 The ALJ determined that Plaintiff was able
to understand, remember, and carry out simple instructions, and that Plaintiff could maintain
attention for at least a two-hour time period and engage in appropriate social interactions.21
In evaluating Plaintiff’s RFC, the ALJ declined to give controlling weight to an opinion of
Plaintiff’s treating physician, Dr. Allan Larcena, dated October 24, 2013.22 Dr. Larcena found that
Plaintiff experienced headaches of sufficient severity to require her to recline in a quiet, dark room
about twice per month for two to three days.23 Dr. Larcena indicated that Plaintiff’s headaches had
become more frequent since May 2012, and he stated that Plaintiff experienced severe headaches
at least twice per week.24 The ALJ reasoned that Dr. Larcena’s opinion was “wholly inconsistent
with the other medical evidence of record including his own treatment records.”25 Specifically, the
ALJ found that the treatment provided by Dr. Larcena “was routine and conservative in nature,”
and the ALJ found no evidence from Dr. Larcena’s records that Plaintiff’s complaints reached “a
disabling level or required aggressive management.”26 The ALJ also reviewed a medical record
20 Id.
21 Id.
22 Id. at 25.
23 Id. at 370.
24 Id.
25 Id.
26 Id. at 22.
5
from Plaintiff’s treatment with Dr. Gregory Redmann at the Tulane Medical Center on January 29,
2013.27 The ALJ noted that the January 29, 2013 record showed “no evidence of . . . headaches.”28
At step four, the ALJ found that Plaintiff was unable to perform any past relevant work.29
However, at step five, the ALJ determined that given Plaintiff’s age, education, work experience,
and RFC, there were jobs that existed in significant numbers in the national economy that she
could perform.30 Therefore, the ALJ determined that Plaintiff was not under a disability from May
9, 2012 through the date of the decision.31
Plaintiff requested review of this decision by the Appeals Council.32 The ALJ’s decision
became the final decision of the Commissioner for purposes of this Court’s review after the
Appeals Council denied review on May 8, 2015.33 On December 10, 2015, Plaintiff filed a
complaint in this Court seeking judicial review pursuant to Section 405(g) of the Act.34
On March 6, 2017, this Court remanded the case to the ALJ for a new hearing and for
further consideration of the evidence.35 In reaching this decision, the Court noted that the ALJ
27 Id.
28 Id.
29 Id.
30 Id. at 26.
31 Id.
32 Id.
33 Id. at 7–10.
34 Case No. 15-6694, Rec. Doc. 1.
35 Case No. 15-6694, Rec. Doc. 16.
6
misstated certain portions of the medical record.36 Contrary to the ALJ’s assertion that Plaintiff
did not complain of headaches during her medical appointments in January and October 2013, the
Court noted that the progress notes from both appointments show that Dr. Redmann increased
Plaintiff’s dosage of Topamax to “treat her migraines.”37 The Court found that the increased
dosage of Topamax to treat Plaintiff’s migraines appeared to be consistent with Dr. Larcena’s
opinion that Plaintiff’s headaches had increased in severity since May 2012.38 Furthermore, the
Court noted that the ALJ’s decision did not consider any of the other factors set forth at 20 C.F.R.
§ 404.1527(c) for determining whether to give a treating physician’s opinion controlling weight.39
Therefore, the Court found that the ALJ’s misstatements of the evidence substantially affected
Plaintiff’s rights.40 Accordingly, the Court remanded the case to the agency for a new hearing and
for more adequate consideration of the record.41
2. Remand and Second Appeal
The mandated hearing took place on June 14, 2018, and on October 2, 2018, the ALJ issued
an opinion again denying Plaintiff’s claim for DBI and SSI.42 The ALJ again analyzed Plaintiff’s
claim pursuant to the five-step sequential evaluation process.43 At step one, the ALJ concluded
36 Id. at 23.
37 Id.
38 Id.
39 Id.
40 Id. at 24.
41 Id.
42 Adm. Rec. at 399–432, 393.
43 Id. at 383–93.
7
that Plaintiff had not engaged in substantial gainful activity since May 9, 2012.44 At step two, the
ALJ concluded that Plaintiff has the following severe impairments: “minor motor seizure disorder;
headaches; fibromyalgia; obesity; an attention deficit disorder; a depressive disorder; and an
anxiety disorder.”45 At step three, the ALJ held that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments under the regulations.46
At step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work with some additional restrictions.47 Specifically, the ALJ found that Plaintiff
“can never climb ladders, ropes or scaffolds; but can occasionally climb ramps and stairs”;
“occasionally balance, stoop, crouch, kneel, and crawl”; “cannot work with dangerous and/or
moving machinery; cannot work at unprotected heights; and cannot engage in commercial
driving.”48 Furthermore, the ALJ found that Plaintiff was limited to unskilled jobs that do not
involve routine and repetitive work, and she “cannot do work that involves strict production quotas
such as working on an assembly line.”49 Additionally, the ALJ found that Plaintiff “cannot have
44 Id. at 383.
45 Id.
46 Id.
47 Id. at 385.
48 Id.
49 Id.
8
direct interaction with the public while carrying out job duties such as needed to perform the job
of a cashier or receptionist,” to include interacting over the telephone.50
In evaluating Plaintiff’s RFC, the ALJ gave “very little weight” to the October 24, 2013
opinion of Dr. Larcena.51 Although Dr. Larcena indicated that Plaintiff’s headaches were more
frequent after May 2012, the ALJ found that the treatment notes did not indicate that Plaintiff
complained of headaches when Dr. Larcena evaluated Plaintiff on March 27, 2013 or in May
2013.52 The ALJ found that Dr. Larcena’s “progress notes, examinations, objective test results,
and other treatment” do not support a finding that Plaintiff is disabled.53 Additionally, the ALJ
noted that Plaintiff had continued treatment with Dr. Larcena from November 2013 through June
2018 at one to five month intervals.54 Plaintiff complained of headaches in January 2014, October
2014, and July 2017.55 Plaintiff complained of discomfort in her buttocks in June 2014 and of back
pain in August 2015.56
Therefore, the ALJ found that Plaintiff’s “additional treatment with Dr. Larcena, where she
experienced very occasional headaches, an episode of discomfort in the buttocks, and an episode
of back pain, further establishes that the opinion of the treating physician made in October 2013
50 Id.
51 Id. at 388, 391.
52 Id. at 388.
53 Id.
54 Id.
55 Id.
56 Id.
9
was not an accurate representation of the degree of limitation caused by [Plaintiff’s]
impairments.”57 The ALJ noted that “[n]one of the physicians who examined [Plaintiff] reported
that she was disabled or unable to work at a job on a regular and continuous basis with the
exception of her treating physician, Dr. Larcena.”58 The ALJ concluded that Dr. Larcena’s opinion
“should be accorded very little weight” because “the limitations expressed by Dr. Larcena in his
Medical Source Statement are far in excess of that shown by his laboratory and his clinical
findings, and the clinical findings of others appearing in evidence.”59
At step four, the ALJ also found that Plaintiff was unable to perform any past relevant
work.60 However, at step five, the ALJ determined that given Plaintiff’s age, education, work
experience, and RFC, there were jobs that existed in significant numbers in the national economy
that she could perform.61 Specifically, the ALJ found that Plaintiff could work as an “office
helper,” housekeeper, or laundry worker.62 Therefore, the ALJ determined that Plaintiff was not
under a disability from May 9, 2012 through the date of the decision.63
57 Id.
58 Id. at 391.
59 Id.
60 Id. at 392.
61 Id.
62 Id.
63 Id. at 393.
10
On April 25, 2019, the Social Security Appeals Council affirmed the ALJ’s decision.64 On
June 28, 2019, Petitioner filed this action for judicial review of that decision.65 The matter was
referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule
73.2(B). On February 5, 2020, the Commissioner answered the complaint.66
On April 6, 2020, Plaintiff filed a brief arguing that the ALJ’s decision: (1) erroneously
rejected the findings of her treating physician without providing a valid reason for doing so and
(2) relies upon a hypothetical question that does not include Plaintiff’s migraine headaches.67 On
June 15, 2020, the Commissioner filed a reply brief arguing that substantial evidence supports the
ALJ’s determination that Plaintiff was not disabled.68
On January 8, 2021, the Magistrate Judge recommended that the ALJ’s decision be
affirmed.69 On January 22, 2021, Plaintiff filed objections to the Report and Recommendation.70
B. Report and Recommendation Findings
On January 8, 2020, the Magistrate Judge recommended that the ALJ’s decision be
affirmed.71 First, the Magistrate Judge addressed Plaintiff’s claim that the ALJ’s decision
erroneously rejected the findings of her treating physician without providing a valid reason for
64 Id. at 372–75.
65 Rec. Doc. 1.
66 Rec. Doc. 16.
67 Rec. Doc. 24.
68 Rec. Doc. 27.
69 Rec. Doc. 28.
70 Rec. Doc. 29.
71 Rec. Doc. 28.
11
doing so.72 The Magistrate Judge noted that the medical records documented seven instances of
migraines in 2013, but the Magistrate Judge found that those instances were sporadic.73 Therefore,
the Magistrate Judge determined that the medical records do not support Plaintiff’s claim that she
was having two to three migraines per week during that period.74 While Plaintiff argued that there
were over 50 instances of complaints of headaches from 2013–2018, the Magistrate Judge found
that to be a misreading of the records.75 The Magistrate Judge determined that “[o]n several
instances the past medical history, which identified migraines, was actually picked up as a current
complaint of migraines when it was not.”76 Therefore, the Magistrate Judge found that the ALJ’s
decision rejecting the findings of the treating physician was supported by the record and there was
substantial evidence supporting the findings of the ALJ.77
Next, the Magistrate Judge addressed Plaintiff’s claim that the ALJ relied on a hypothetical
question to the vocational expert that did not include Plaintiff’s migraine headaches.78 Because the
ALJ’s rejection of the treating physician’s finding regarding the increased frequency of migraines
was supported by substantial evidence, the Magistrate Judge found that “it was appropriate for the
72 Id. at 13.
73 Id.
74 Id.
75 Id. at 14.
76 Id.
77 Id. at 15.
78 Id.
12
ALJ to include her limitations but not those based on assumptions that were rejected.”79
Accordingly, the Magistrate Judge recommends that this Court affirm the decision of the ALJ.80
II. Objections
A. Plaintiff’s Objections
Plaintiff timely filed objections to the Magistrate Judge’s Report and Recommendation on
January 22, 2021.81 First, Plaintiff argues that the ALJ relied on a hypothetical question that did
not include Plaintiff’s migraine headaches.82 Plaintiff notes that the ALJ decision found that
Plaintiff’s migraine headaches were “severe.”83 Plaintiff asserts that hypotheticals posed to a
vocational expert must include all disabilities recognized by the ALJ.84 Plaintiff contends that the
ALJ adopted a hypothetical that did not include any restrictions imposed by her migraine
headaches.85 Plaintiff argues that the “determination of non-disability based on such a defective
question cannot stand.”86
Plaintiff also argues that the ALJ erred by rejecting the findings of the treating physician
without providing a valid reason for doing so.87 Plaintiff contends that the Magistrate Judge offered
79 Id. at 16.
80 Id.
81 Rec. Doc. 29.
82 Rec. Doc. 29-2 at 2–3.
83 Id. at 2.
84 Id. at 2–3 (citing Boyd v. Apfel, 239 F.3d 698, 706 (5th Cir. 2001)).
85 Id. at 3.
86 Id. at 3–4 (quoting Boyd, 239 F.3d at 706).
87 Id. at 6.
13
reasoning that the ALJ’s decision did not include.88 Plaintiff asserts that the Magistrate Judge
confused “the number of complaints to physicians about migraines with the number of actual
migraines.”89 Plaintiff argues that the ALJ and the Magistrate Judge relied on “a few instances of
treatment not accompanied by complaints of headaches” to support a conclusion that Dr. Larcena’s
opinion was not entitled to controlling weight.90 Plaintiff also argues that the Magistrate Judge
confused “Dr. Larcena’s finding that as of October 24, 2013 plaintiff’s headaches were more
frequent than in her proposed onset date of May 2012 with a finding that plaintiff’s headaches
became more frequent immediately after May 2012.”91 Therefore, Plaintiff argues that the ALJ
decision offers no valid evidence nor valid reasoning for rejecting the findings of Dr. Larcena.92
Plaintiff notes that she has been pursuing this claim since February 19, 2013.93 If the case
is remanded again, Plaintiff asserts that the claim “will face an uncertain future at an uncertain
future date, particularly considering the delays resulting from COVID 19.”94 Plaintiff contends
that she has made a prima facie case of disability.95 Therefore, Plaintiff requests that the Court
reverse the ALJ’s decision and find Plaintiff “to have been disabled and entitled to a Period of
Disability and Disability Insurance Benefits since May 9, 2012, when she was constrained to quit
88 Id.
89 Id. at 2, 9.
90 Id. at 8.
91 Id. at 2, 12.
92 Id. at 13.
93 Id.
94 Id.
95 Id.
14
working because of her disabilities or at least since December 31, 2012, her date of last
insurance.”96
B. The Commissioner’s Response
On March 9, 2021, the Commissioner filed a response to Plaintiff’s objections.97 The
Commissioner submits that the ALJ’s decision should be affirmed and the Complaint should be
dismissed in its entirety.98
First, the Commissioner argues that substantial evidence supports the ALJ’s step five
determination. According to the Commissioner, the ALJ properly discounted Dr. Larcena’s
opinion.99 The Commissioner argues that the ALJ is not bound by vocational expert testimony that
was based on the restrictions imposed by Dr. Larcena because the ALJ rejected Dr. Larcena’s
opinion.100 The Commissioner asserts that Plaintiff’s argument that the ALJ should have included
further limitations to account for migraine headaches is unavailing.101 The Commissioner notes
that Plaintiff points to no specific medical evidence that she contends the ALJ should have relied
upon but did not.102 According to the Commissioner, Plaintiff failed to demonstrate that the ALJ
did not consider the combined effects of all impairments.103
96 Id.
97 Rec. Doc. 31.
98 Id. at 1.
99 Id. at 2.
100 Id.
101 Id.
102 Id.
103 Id.
15
Next, the Commissioner asserts that the ALJ properly weighed Dr. Larcena’s opinion.104
The Commissioner notes that “Plaintiff concedes that the records show numerous instances where
Plaintiff did not complain of headaches.”105 The Commissioner submits that the ALJ thoroughly
considered Dr. Larcena’s opinion and gave specific reasons for assigning his Medical Source
Statement limited weight.106 Specifically, the ALJ noted that although Plaintiff had a long
treatment history with Dr. Larcena, a finding that Plaintiff was disabled was not supported based
upon Dr. Larcena’s progress notes, examinations, objective test results, and other treatment.107
Finally, the Commissioner argues that Dr. Redmann’s findings in January 2013 contradict Dr.
Larcena’s opinion that Plaintiff must recline about twice a month in a quiet, dark room for two to
three days because of migraine headaches.108 The Commissioner notes that Dr. Redmann’s
examination of Plaintiff was essentially normal with no constitutional, respiratory, cardiovascular,
gastroenterology, urology, endocrinology, musculoskeletal, skin, or neurology symptoms.109
Therefore, the Commissioner asserts that substantial evidence supported the ALJ’s decision.110
104 Id.
105 Id. at 3.
106 Id.
107 Id.
108 Id. at 4.
109 Id.
110 Id. at 5.
16
III. Standards of Review
A. Standard of Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to the Magistrate Judge to
provide a Report and Recommendation. A district judge “may accept, reject, or modify the
recommended disposition” of a magistrate judge on a dispositive matter.111 The district judge must
“determine de novo any part of the [Report and Recommendation] that has been properly objected
to.”112 A district court’s review is limited to plain error for parts of the report which are not properly
objected to.113
B. Standard of Review of Commissioner’s Final Decision on DIB and SSI Benefits
Under 42 U.S.C. § 405(g), the district court has the power to enter “a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”114 Appellate review of the Commissioner’s denial of DIB
and SSI benefits115 is limited to determining whether the decision is supported by substantial
evidence in the record and whether the proper legal standards were used in evaluating the
evidence.116 “Substantial evidence is more than a scintilla, less than a preponderance, and is such
111 FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
112 Id.
113 See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
114 42 U.S.C. § 405(g).
115 The relevant law and regulations governing a claim for DIB are identical to those governing a claim for
supplemental security income (“SSI”). Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Hollis v. Bowen, 837
F.2d 1378, 1382 n. 3 (5th Cir. 1988).
116 Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir.
2002); Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
17
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”117 The
Court must review the whole record to determine if such evidence exists.118 However, the district
court cannot “reweigh the evidence in the record, try the issues de novo, or substitute its judgment
for the Commissioner’s.”119 The ALJ is entitled to make any finding that is supported by
substantial evidence, regardless of whether other conclusions are also permissible.120 A court
“weigh[s] four elements of proof when determining whether there is substantial evidence of
disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining
physicians; (3) the claimant’s subjective evidence of pain and disability; and (4) his age, education,
and work history.”121
IV. Law and Analysis
A. Law Applicable to Qualification for DIB and SSI
To be considered disabled, a claimant must show that she is 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.”122 The Commissioner has promulgated
117 Richardson v. Perales, 402 U.S. 389, 401 (1971); Perez, 415 F.3d at 461; Loza, 219 F.3d at 393; Villa,
895 F.2d at 1021-22 (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983); Randall v. Sullivan, 956 F.2d 105,
109 (5th Cir. 1992)).
118 Singletary v. Bowen, 798 F.2d 818, 822–23 (5th Cir. 1986).
119 Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
120 See Arkansas v. Oklahoma, 503 U.S. 91 (1992).
121 Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).
122 42 U.S.C. § 423(d)(1)(A).
18
regulations that provide procedures for evaluating a claim and determining disability.123 The
regulations include a five-step evaluation process for determining whether an impairment
constitutes a disability, which terminates if the Commissioner finds at any step that the claimant
is or is not disabled.124 The claimant has the burden of proof under the first four parts of the inquiry
and if she successfully carries this burden, the burden shifts to the Commissioner at step five to
show that the claimant is capable of engaging in alternative substantial gainful employment which
is available in the national economy.125
In the opinion issued after remand by this Court, the ALJ found that Plaintiff’s “minor
motor seizure disorder; headaches; fibromyalgia; obesity; an attention deficit disorder; a
depressive disorder; and an anxiety disorder” were severe conditions within the meaning of the
Act.126 The ALJ determined that Plaintiff’s impairments did not meet or medically equal the
severity of one of the listed impairments under the regulations.127 The ALJ found that Plaintiff had
the RFC to perform light work with some additional restrictions.128 Specifically, the ALJ found
that Plaintiff “can never climb ladders, ropes or scaffolds; but can occasionally climb ramps and
stairs”; “occasionally balance, stoop, crouch, kneel, and crawl”; “cannot work with dangerous
and/or moving machinery; cannot work at unprotected heights; and cannot engage in commercial
123 20 C.F.R. §§ 404.1501 to 404.1599 & Apps., §§ 416.901 to 416.998 (2008).
124 Id. §§ 404.1520, 416.920; Perez, 415 F.3d at 461.
125 Perez, 415 F.3d at 461; Newton, 209 F.3d at 453.
126 Adm. Rec. at 383.
127 Id.
128 Id. at 385.
19
driving.”129 Furthermore, the ALJ found that Plaintiff was limited to unskilled jobs that do not
involve routine and repetitive work, and she “cannot do work that involves strict production quotas
such as working on an assembly line.”130 Additionally, the ALJ found that Plaintiff “cannot have
direct interaction with the public while carrying out job duties such as needed to perform the job
of a cashier or receptionist,” to include interacting over the telephone.131 The ALJ concluded that
Plaintiff could not perform her past relevant work, but that jobs exist in significant numbers in the
national economy that Plaintiff could perform.132 Accordingly, the ALJ concluded that Plaintiff
was not disabled from May 9, 2012 through the date of the decision.133 The Court may disturb that
finding only if the ALJ lacked “substantial evidence” to support it.134
B. The ALJ’s Rejection of the Findings of Plaintiff’s Treating Physician
The Magistrate Judge found that the ALJ’s decision in which she did not give controlling
weight to Dr. Larcena’s Medical Source Statement was based upon substantial evidence and
should be affirmed.135 Plaintiff objects to this determination, arguing that the ALJ’s decision
provided no specific or valid reason for rejecting Dr. Larcena’s finding.136 Plaintiff argues that the
ALJ and the Magistrate Judge improperly relied on “a few instances of treatment not accompanied
129 Id.
130 Id.
131 Id.
132 Id. at 392.
133 Id.
134 See Perez, 415 F.3d at 461.
135 Rec. Doc. 28.
136 Rec. Doc. 29-2.
20
by complaints of headaches” to support a conclusion that Dr. Larcena’s opinion was not entitled
to controlling weight.137
Under the Social Security Act,
[t]he Commissioner of Social Security is directed to make any findings of fact, and
decisions as to the rights of any individual applying for a payment under this
subchapter. Any such decision by the Commissioner of Social Security, which
involves a determination of disability and which is in whole or in part unfavorable
to such individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.138
Therefore, under “the explicit terms of the statute, the ALJ is required to discuss the evidence
offered in support of [the plaintiff’s] claim for disability and to explain why she found [the
plaintiff] not to be disabled at that step.”139 However, the Fifth Circuit has held that “[p]rocedural
perfection in administrative proceedings is not required’ as long as ‘the substantial rights of a party
have not been affected.’”140
Although not conclusive, an evaluation by the claimant’s treating physician should be
accorded great weight.141 “A treating physician’s opinion on the nature and severity of a patient’s
impairment will be given controlling weight if it is ‘well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial
137 Id. at 8.
138 42 U.S.C. § 405(b)(1).
139 Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007).
140 Id. (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir.1988)).
141 Greenspan, 38 F.3d at 237.
21
evidence.’”142 “[T]he ALJ is free to reject the opinion of any physician when the evidence supports
a contrary conclusion.”143
In Loza v. Apfel, the Fifth Circuit noted that “[m]edical evidence must support a physician’s
diagnosis, but if it does the expert opinion of a treating physician as to the existence of a disability
is binding on the fact-finder unless contradicted by substantial evidence to the contrary.”144
Further, “it is clear that the ALJ must consider all the record evidence and cannot ‘pick and choose’
only the evidence that supports his position.”145 20 C.F.R. § 404.1527(c) provides a list of factors
that the ALJ should consider in determining whether to give a treating physician controlling
weight, including: (1) the “length of the treatment relationship and the frequency of examination”;
(2) the “nature and extent of the treatment relationship”; (3) the “relevant evidence” the medical
source presented to support the opinion; (4) the consistency of the opinion with the record as a
whole; (5) the specialization of the medical source; and (6) any other factors that “tend to support
or contradict the opinion.”
Plaintiff argues that the ALJ erred in rejecting the Medical Source Statement completed by
Dr. Larcena on October 24, 2013, which provided in part that at least twice per month Plaintiff
experienced headaches of sufficient severity to require her to recline in a quiet, dark room for two
to three days.146 The Medical Source Statement also stated that Plaintiff’s headaches had become
142 Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995) (citing 20 C.F.R. § 404.1527(d)(2)).
143 Id.; Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (internal citations omitted).
144 Loza, 219 F.3d at 393 (internal citations and quotation marks omitted).
145 Id. (internal citations omitted).
146 Adm. Rec. at 370.
22
more frequent since May 2012, and that Plaintiff was experiencing severe headaches at least twice
per week.147 Plaintiff asserts that the ALJ did not provide a valid reason for rejecting the Medical
Source Statement.
Plaintiff’s migraine headaches are mentioned nine times in the medical records from
2013.148 On three occasions in 2013, Dr. Redmann stated that he would “try to help prevent any
breakthrough [seizures] and treat [Plaintiff’s] migraines by increasing topomax [sic].”149 On the
third occasion, the report states, “Migraines usually respond to fiorcet [sic].”150 However, Fioricet
is not listed in the “current medications” section of the same report, and it was not prescribed by
Dr. Redmann.151 The Magistrate Judge found that the ALJ may have misinterpreted this portion
of the report when the ALJ stated that “Dr. Redmann noted that the claimant was experiencing
147 Id.
148 Id. at 252 (report from January 24, 2013 evaluation by Dr. Lacerna mentioning headaches); Id. at 245–47
(report from January 29, 2013 evaluation by Dr. Redmann stating he would “try to help prevent any breakthrough
[seizures] and treat her migraines by increasing topomax [sic] slightly by 25mg PM dose”); Id. at 251 (report from
March 6, 2013 evaluation by Dr. Lacerna mentioning headaches); Id. at 250 (report from March 19, 2013 evaluation
by Dr. Lacerna mentioning headaches); Id. at 279–80 (report from April 10, 2013 evaluation by Dr. Shah mentioning
prior diagnosis of migraine headaches), Id. at 285–88 (report from June 28, 2013 evaluation by Dr. Redmann stating
he would “try to help prevent any breakthrough [seizures] and treat her migraines by increasing topomax [sic] to 75
mg and then 100 mg by mouth every afternoon”); Id. at 366–68 (report from October 15, 2013 evaluation by Dr.
Redmann stating he would “try to help prevent any breakthrough [seizures] and treat her migraines by increasing
topomax [sic] to 100 mg bid. Migraines usually respond to fioricet. [sic]”); Id. at 370 (the October 24, 2013 medical
source statement by Dr. Larcena); Id. at 690 (report from November 5, 2013 evaluation by Dr. Lacerna mentioning
headaches).
149 Id. at 245–47 (report from January 29, 2013 evaluation by Dr. Redmann stating he would “try to help
prevent any breakthrough [seizures] and treat her migraines by increasing topomax [sic] slightly by 25mg PM dose”);
Id. at 285–88 (report from June 28, 2013 evaluation by Dr. Redmann stating he would “try to help prevent any
breakthrough [seizures] and treat her migraines by increasing topomax [sic] to 75 mg and then 100 mg by mouth every
afternoon”); Id. at 366–68 (report from October 15, 2013 evaluation by Dr. Redmann stating he would “try to help
prevent any breakthrough [seizures] and treat her migraines by increasing topomax [sic] to 100 mg bid. Migraines
usually respond to fiorcet [sic].”).
150 Id. at 366–68 (report from October 15, 2013 evaluation by Dr. Redmann).
151 Id.
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migraine headaches; however, he explained that her migraines usually responded to treatment with
Fioricet.”152 Nevertheless, the Magistrate Judge found that this error was harmless because “the
record shows [] that Dr. Redmann was adjusting her Topamax and that it was ultimately effective
at reducing the frequency of her migraines.”153
However, it is not apparent to this Court what portion of the medical records the Magistrate
Judge was relying on to find that the adjustment of the Topamax dosage was effective at reducing
the frequency of Plaintiff’s migraines. After Dr. Redmann adjusted the dosage three times in 2013,
Plaintiff went on to complain to Dr. Larcena of headaches eight times in 2014.154 On October 23,
2014, Plaintiff was also evaluated by Dr. Hans Schuller of the Sleep Disorder Center.155 The
treatment notes reflect that Plaintiff reported experiencing “migraine headaches in the morning”
and complained of “headaches frequently.”156 Plaintiff also complained to Dr. Larcena of
headaches seven times in 2015.157 Plaintiff was seen by Dr. Larcena less frequently in 2016, 2017,
152 Rec. Doc. 28 at 14–15.
153 Id. at 15.
154 Adm. Rec. at 689 (report from January 27, 2014 evaluation by Dr. Lacerna mentioning headaches); Id. at
687 (report from March 4, 2014 evaluation by Dr. Lacerna mentioning headaches); Id. at 686 (report from March 27,
2014 evaluation by Dr. Lacerna mentioning headaches); Id. at 684 (report from October 2, 2014 evaluation by Dr.
Lacerna mentioning headaches); Id. at 683 (report from October 16, 2014 evaluation by Dr. Lacerna mentioning
headaches); Id. at 680 (report from November 25, 2014 evaluation by Dr. Lacerna mentioning headaches); Id. at 678
(report from December 4, 2014 evaluation by Dr. Lacerna mentioning headaches); Id. at 679 (report from December
10, 2014 evaluation by Dr. Lacerna mentioning headaches).
155 Id. at 681–82.
156 Id.
157 Id. at 677 (report from March 30, 2015 evaluation by Dr. Lacerna mentioning headaches); Id. at 676
(report from April 9, 2015 evaluation by Dr. Lacerna mentioning headaches); Id. at 675 (report from May 4, 2015
evaluation by Dr. Lacerna mentioning headaches); Id. at 674 (report from August 7, 2015 evaluation by Dr. Lacerna
mentioning headaches); Id. at 673 (report from August 13, 2015 evaluation by Dr. Lacerna mentioning headaches);
Id. at 672 (report from September 9, 2015 evaluation by Dr. Lacerna mentioning headaches); Id. at 671 (report from
November 10, 2015 evaluation by Dr. Lacerna mentioning headaches).
24
and 2018, but headaches are mentioned on all but one of the eight treatment notes during that three-
year period.158
Plaintiff was seen by Dr. John Freiberg at the Tulane Medical Center nine times between
February 24, 2014 and March 12, 2018.159 It appears that Dr. Freiberg took over the treatment for
Plaintiff’s seizure disorder from Dr. Redmann.160 This treatment appears to have focused on
Plaintiff’s seizure disorder and attention deficit disorder.161 The treatment notes do not mention
Plaintiff’s migraines except in the “past medical history” section of the reports.162
Plaintiff testified to the severity of her migraines at the June 14, 2018 hearing.163 She
testified that her headaches cause her to become tired, lighthearted, dizzy, and nauseous.164 The
severe headaches require her to “lay down and just try to sleep it off or lay down in a dark room
where it’s really quiet.”165 Plaintiff testified that she was experiencing migraines at least twice a
week.166 She testified that the migraines differ in severity.167 Sometimes they require her to lay
158 Id. at 663–70.
159 Id. at 621–45.
160 Id. at 643.
161 Id. at 621–45.
162 Id.
163 Id. at 405–06.
164 Id. at 405.
165 Id. at 405–06.
166 Id. at 406.
167 Id.
25
down in a dark room for two to four days.168 Plaintiff testified that on average she spends four to
five days a week in bed trying to cope with her headaches.169 The ALJ found that Plaintiff’s
“medically determinable impairments could reasonably be expected to cause some of the alleged
symptoms.”170 However, the ALJ found Plaintiff’s “statements concerning the intensity,
persistence and limiting effects of these symptoms [was] not entirely consistent with the medical
evidence.”171
There are six factors set forth at 20 C.F.R. § 404.1527(c) for determining whether to give
a treating physician’s opinion controlling weight.172 Additionally, when the treating source’s
168 Id.
169 Id.
170 Id. at 391.
171 Id.
172 (1) Examining relationship. Generally, we give more weight to the medical opinion of a source who has
examined you than to the medical opinion of a medical source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to medical opinions from your treating sources,
since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal
picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations. If we find that a treating source's medical opinion on the
issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case
record, we will give it controlling weight. When we do not give the treating source’s medical opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as
the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the medical
opinion. We will always give good reasons in our notice of determination or decision for the weight we give
your treating source's medical opinion.
[…]
(3) Supportability. The more a medical source presents relevant evidence to support a medical opinion,
particularly medical signs and laboratory findings, the more weight we will give that medical opinion. The
better an explanation a source provides for a medical opinion, the more weight we will give that medical
opinion. Furthermore, because nonexamining sources have no examining or treating relationship with you,
the weight we will give their medical opinions will depend on the degree to which they provide supporting
explanations for their medical opinions. We will evaluate the degree to which these medical opinions consider
all of the pertinent evidence in your claim, including medical opinions of treating and other examining
sources.
26
medical opinion is not given controlling weight, § 404.1527(c)(2) requires two additional factors
to be considered by the ALJ.173 Furthermore, the regulation is construed in Social Security Ruling
(“SSR”) 96–2p, which states:
[A] finding that a treating source medical opinion is not well supported by
medically acceptable clinical and laboratory diagnostic techniques or is
inconsistent with the other substantial evidence in the case record means only that
the opinion is not entitled to “controlling weight,” not that the opinion should be
rejected. Treating source medical opinions are still entitled to deference and must
be weighed using all of the factors provided in 20 C.F.R. 404.1527 and 416.927. In
many cases, a treating source’s medical opinion will be entitled to the greatest
weight and should be adopted even if it does not meet the test for controlling
weight.174
(4) Consistency. Generally, the more consistent a medical opinion is with the record as a whole, the more
weight we will give to that medical opinion.
(5) Specialization. We generally give more weight to the medical opinion of a specialist about medical issues
related to his or her area of specialty than to the medical opinion of a source who is not a specialist.
(6) Other factors. When we consider how much weight to give to a medical opinion, we will also consider
any factors you or others bring to our attention, or of which we are aware, which tend to support or contradict
the medical opinion. For example, the amount of understanding of our disability programs and their
evidentiary requirements that a medical source has, regardless of the source of that understanding, and the
extent to which a medical source is familiar with the other information in your case record are relevant factors
that we will consider in deciding the weight to give to a medical opinion.
173 (i) Length of the treatment relationship and the frequency of examination. Generally, the longer a treating
source has treated you and the more times you have been seen by a treating source, the more weight we will
give to the source's medical opinion. When the treating source has seen you a number of times and long
enough to have obtained a longitudinal picture of your impairment, we will give the medical source's medical
opinion more weight than we would give it if it were from a nontreating source.
(ii) Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has
about your impairment(s) the more weight we will give to the source's medical opinion. We will look at the
treatment the source has provided and at the kinds and extent of examinations and testing the source has
performed or ordered from specialists and independent laboratories. For example, if your ophthalmologist
notices that you have complained of neck pain during your eye examinations, we will consider his or her
medical opinion with respect to your neck pain, but we will give it less weight than that of another physician
who has treated you for the neck pain. When the treating source has reasonable knowledge of your
impairment(s), we will give the source's medical opinion more weight than we would give it if it were from
a nontreating source.
174 SSR 96–2p, 61 F.R. 34490, 34491 (July 2, 1996) (emphasis added). As quoted in Newton, 209 F.3d at
456.
27
Despite Dr. Larcena’s lengthy treatment history with Plaintiff, the ALJ declined to give
controlling weight to Plaintiff’s treating physician because the physician had not seen Plaintiff for
five months prior to giving his opinion on the frequency and severity of her headaches.175 The ALJ
fails to explain why she found Dr. Larcena’s October 2013 opinion to be inconsistent with other
substantial medical evidence when there are the nine instances of headache complaints from
Plaintiff in the medical records from January 2013 through November 2013.176 Additionally, Dr.
Larcena continued to treat Plaintiff for headaches in 2014 and 2015.177 Plaintiff was seen by Dr.
Larcena less frequently in 2016, 2017, and 2018, but headaches are mentioned on all but one of
the eight treatment notes during that three-year period.178 Confusingly, the ALJ takes issue with
the fact that no other doctors who treated or evaluated Plaintiff found that she was disabled or
unable to work at a job on a regular and continuous basis.179 As 20 C.F.R. § 404.1527(d) states,
“opinions that [complainants] are disabled” are “issues reserved to the Commissioner.”
Regardless of the weight the ALJ chose to give to Dr. Larcena’s Medical Source Statement,
the record is clear that Plaintiff complained of and suffered from severe headaches or migraines
for multiple years.180 While this Court is not permitted to reweigh the evidence, the Court
finds that the ALJ’s mischaracterization of the evidence substantially affected Plaintiff’s
175 Adm. Rec. at 388.
176 Supra note 146.
177 Supra notes 152 and 155.
178 Adm. Rec. at 663–70.
179 Id. at 391.
180 Supra notes 146, 152, 155.
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rights. The ALJ failed to acknowledge the 24 instances of headaches noted in Plaintiff’s medical
records from 2013 through 2015, in addition to multiple instances in 2016 through 2018, when
weighing the Medical Source Statement from Dr. Larcena. Accordingly, the Court concludes that
the ALJ’s decision is not supported by substantial evidence.
C. Limitations Caused by Migraines and Determining Residual Functional Capacity
Even though the ALJ included headaches in the list of findings concerning Plaintiff’s
severe impairments, the ALJ included no related limitations in residual functional capacity due to
headaches.181 Because the ALJ gave very little weight to the October 24, 2013 opinion of Dr.
Larcena, the evaluation of residual functional capacity by the ALJ did not include any limitations
caused by Plaintiff’s migraines.182 In accordance with 20 C.F.R. § 404.1529 and § 416.929, an
ALJ may call upon a medical expert to help them determine whether an individual’s medically
determinable impairment could reasonably be expected to produce his or her symptoms.183 In
181 Adm. Rec. at 383.
182 Id. at 385, 392–93.
183 See also SSR 16-3p.
29
accordance with SSR 96–2p184 and HALLEX I-2-5-34,185 the ALJ shall call a medical expert to
determine if Plaintiff’s headaches, as described in the record, could reasonably be expected to
require Plaintiff to lay in a quiet, dark room for a day once or twice a month during the alleged
period of disability. If so, or if the medical expert finds other limitations due to Plaintiff’s
migraines, consideration of the limitations should be included when determining Plaintiff’s
residual functioning capacity.
Accordingly, the Court sustains Plaintiff’s objections, rejects the Magistrate Judge’s
Report and Recommendation, and remands the case to the ALJ for a new hearing with a medical
expert to address Plaintiff’s headaches when determining her residual functioning capacity.
184 “[I]n some instances, additional development required by a case--for example, to obtain more evidence or
to clarify reported clinical signs or laboratory findings--may provide the requisite support for a treating source’s
medical opinion that at first appeared to be lacking or may reconcile what at first appeared to be an inconsistency
between a treating source’s medical opinion and the other substantial evidence in the case record. In such instances,
the treating source’s medical opinion will become controlling if, after such development, the opinion meets the test
for controlling weight. Conversely, the additional development may show that the treating source's medical opinion
is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or may create an
inconsistency between the medical opinion and the other substantial evidence in the case record, even though the
medical opinion at first appeared to meet the test for controlling weight. Ordinarily, development should not be
undertaken for the purpose of determining whether a treating source’s medical opinion should receive controlling
weight if the case record is otherwise adequately developed. However, in cases at the administrative law judge (ALJ)
or Appeals Council (AC) level, the ALJ or the AC may need to consult a medical expert to gain more insight into
what the clinical signs and laboratory findings signify in order to decide whether a medical opinion is well-supported
or whether it is not inconsistent with other substantial evidence in the case record.” SSR 96–2p.
185 HALLEX I-2-5-34 (A)(1) states in pertinent part, “When the ALJ must obtain an ME [medical expert]
opinion, either in testimony at a hearing or in responses to written interrogatories in the following circumstances: The
Appeals Council or Federal court ordered an ME opinion.” While HALLEX does not carry the authority of law, the
Fifth Circuit has held that “where the rights of individuals are affected, an agency must follow its own procedures,
even where the internal procedures are more rigorous than otherwise would be required.” See Hall v. Schweiker, 660
F.2d 116, 119 (5th Cir. 1981). If prejudice results from a violation, the result cannot stand. Id. (quoting Newton, 209
F.3d at 459).
30
V. Conclusion
For the foregoing reasons, the Court concludes that the ALJ mischaracterized the evidence
regarding Plaintiff’s headaches and the mischaracterization substantially affected Plaintiff’s rights
because the ALJ failed to acknowledge the 24 instances of headaches noted in Plaintiff’s medical
records from 2013 through 2015, in addition to multiple instances in 2016 through 2018, when
weighing the Medical Source Statement from Dr. Larcena. Therefore, the Court concludes that the
ALJ’s decision to give little weight to Plaintiff’s treating physician is not supported by substantial
evidence in the record.
Moreover, because the ALJ found that Plaintiff’s headaches were a severe impairment, but
did not include any related limitation in Plaintiff’s residual functioning capacity, the ALJ shall call
a medical expert to determine if Plaintiff’s headaches, as described in the record, could reasonably
be expected to require Plaintiff to lay in a quiet, dark room for a day once or twice a month during
the alleged period of disability.186 If so, or if the medical expert finds other limitations due to
Plaintiff’s headaches, the limitations should be included when determining Plaintiff’s residual
functioning capacity. Therefore, the Court sustains Plaintiff’s objections, rejects the Magistrate
Judge’s Report and Recommendation, and remands the case to the ALJ for a new hearing with a
medical expert to address Plaintiff’s headaches when determining her residual functioning
capacity. Accordingly,
186 SSR 96–2p. HALLEX I-2-5-34. See also supra notes 182 and 183.
31
IT IS HEREBY ORDERED that the Court SUSTAINS Plaintiff's objections and
REJECTS the Magistrate Judge’s recommendation;
IT IS FURTHER ORDERED that the case is REMANDED to the ALJ pursuant to 42
U.S.C. § 405(g) for a new hearing and opinion consistent with this Court’s Order and Reasons.
The ALJ shall call a medical expert to determine if Plaintiffs headaches, as described in the record,
could reasonably be expected to require Plaintiff to lay in a quiet, dark room for a day once or
twice a month during the alleged period of disability. If so, or if the medical expert finds other
limitations due to Plaintiff's migraines, consideration of the limitations should be included when
determining Plaintiffs residual functioning capacity.
NEW ORLEANS, LOUISIANA, this 30thday of March, 2021.
NANNETTE JOEFIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
32