Roberts v. Kijakazi

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

)

SAMANTHA R. ROBERTS, )

)

Plaintiff, )

)

v. ) Case No. 4:21-CV-01457-NCC

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM AND ORDER

This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision

of the Commissioner denying the application of Samantha R. Roberts (“Plaintiff”) for Disability

Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.

Plaintiff has filed a brief in support of the Complaint (Doc. 15) and Defendant has filed a brief in

support of the Commissioner’s decision (Doc. 18). The parties have consented to the jurisdiction

of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 9).

I. PROCEDURAL HISTORY

Plaintiff protectively filed her application for DIB on June 5, 2019 (Tr. 209-13). Plaintiff

was initially denied on November 1, 2019 (Tr. 66-89, 93-98). She filed a Request for Hearing

before an Administrative Law Judge (“ALJ”) (Tr. 99-115). After a hearing, by decision dated

March 2, 2021, the ALJ found Plaintiff not disabled (Tr. 7-26). On October 20, 2021, the

Appeals Council denied Plaintiff’s request for review (Tr. 1-4). As such, the ALJ’s decision

stands as the final decision of the Commissioner.

II. DECISION OF THE ALJ

The ALJ determined that Plaintiff last met the insured status requirements of the Social

Security Act on June 30, 2016, and that Plaintiff did not engage in substantial gainful activity

during the period from her amended alleged onset date of February 27, 2015, through her date

last insured of June 30, 2016 (Tr. 12). The ALJ found Plaintiff had the severe impairment of

unspecified migraines, but that no impairment or combination of impairments met or medically

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

1 (Tr. 12-14). After careful consideration of the entire record, the ALJ determined Plaintiff had

the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except

she must avoid hazards such as unprotected heights and moving mechanical parts; she can never

climb ladders, ropes, or scaffolds; and she should avoid extremes of cold and heat, strobe lights,

and exposure to loud noise in the workplace (i.e., SCO noise intensity level 4 and above) (Tr.

14). The ALJ found that Plaintiff was capable of performing past relevant work as an executive

assistant/secretary (DOT # 201.362-030, sedentary exertion and skilled, with an SVP of 6) (Tr.

18). Thus, the ALJ concluded that Plaintiff was not under a disability at any time from February

27, 2015, the amended alleged onset date, through June 30, 2016, the date last insured (Tr. 20).

III. LEGAL STANDARD

Under the Social Security Act, the Commissioner has established a five-step process for

determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “If a claimant fails

to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is

determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting

Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the

claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.

20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20

C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as

“any impairment or combination of impairments which significantly limits [claimant’s] physical

or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may

be terminated at step two only when the claimant’s impairment or combination of impairments

would have no more than a minimal impact on [his or] her ability to work.’” Page v. Astrue, 484

F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.

2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).

Third, the ALJ must determine whether the claimant has an impairment which meets or

equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).

If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is

per se disabled without consideration of the claimant’s age, education, or work history. Id.

Fourth, the impairment must prevent the claimant from doing past relevant work. 20

C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to

establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step

four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ

will review a claimant’s RFC and the physical and mental demands of the work the claimant has

done in the past. 20 C.F.R. § 404.1520(f).

Fifth, the severe impairment must prevent the claimant from doing any other work. 20

C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the

Commissioner has the burden of production to show evidence of other jobs in the national

economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874

n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The

ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v.

Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000); see also Harris v. Barnhart, 356 F.3d 926, 931

n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377

F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate

RFC remains on the claimant, even when the burden of production shifts to the Commissioner at

step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ’s

decision, the decision must be affirmed if it is supported by substantial evidence. Clark v.

Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but

is enough that a reasonable mind would find it adequate to support the Commissioner’s

conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).

It is not the job of the district court to re-weigh the evidence or review the factual record

de novo. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). Instead, the district court must

simply determine whether the quantity and quality of evidence is enough so that a reasonable

mind might find it adequate to support the ALJ’s conclusion. Davis v. Apfel, 239 F.3d 962, 966

(8th Cir. 2001) (citing McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the

evidence is a function of the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731,

736 (8th Cir. 2004). Thus, an administrative decision which is supported by substantial evidence

is not subject to reversal merely because substantial evidence may also support an opposite

conclusion or because the reviewing court would have decided differently. Krogmeier, 294 F.3d

at 1022.

IV. DISCUSSION

In her appeal of the Commissioner’s decision, Plaintiff raises two issues. First, Plaintiff

argues that the ALJ’s finding that Plaintiff did not equal the severity of any listed impairment is

not supported by substantial evidence (Doc. 15 at 4). Second, Plaintiff argues that the RFC

failed to include Plaintiff’s need for absences from work due to her migraines (id. at 7). The

Court addresses each argument as follows and ultimately finds that the ALJ’s decision is

supported by substantial evidence and should be affirmed.

A. Listing

“[T]he listings were designed to operate as a presumption of disability that makes further

inquiry unnecessary.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990). “Thus, if the ALJ

determines at step three of the sequential analysis that a claimant has a listed impairment, the

claimant ‘must be held disabled, and the case is over.’” Brown v. Colvin, 825 F.3d 936, 939 (8th

Cir. 2016) (quoting Jones v. Barnhart, 335 F.3d 697, 699 (8th Cir. 2003)).

“Merely being diagnosed with a condition named in a listing and meeting some of the

criteria will not qualify a claimant for presumptive disability under the listing.” McCoy v.

Astrue, 648 F.3d 605, 611–12 (8th Cir. 2011). “An impairment that manifests only some of [the

listing] criteria, no matter how severely, does not qualify.” Zebley, 493 U.S. at 530. The listings

“exclude claimants who have listed impairments in a form severe enough to preclude substantial

gainful activity, but not quite severe enough to meet the listings level—that which would

preclude any gainful activity.” Id. at 534.

A plaintiff “bears the burden at step three of showing that his impairments meet or equal

an impairment described in the listings.” Cronin v. Saul, 945 F.3d 1062, 1066–67 (8th Cir.

2019). “To establish equivalency, a claimant must present medical findings equal in severity to

all the criteria for the one, most similar, listed impairment.” Id. at 1067.

Primary headache disorder is not listed in Appendix 1, but Social Security Ruling 19-4P

explains that a primary headache disorder may medically equal a listing. 2019 WL 4169635, at

*8 (Aug. 26, 2019). The listing for Epilepsy, 11.02, is the most closely analogous listed

impairment, and “[w]hile uncommon, a person with primary headache disorder may exhibit

equivalent signs and limitations to those detailed in listing 11.02 (paragraph B or D for

dyscognitive seizures) ….” Id.

In order to medically equal listing 11.02, the claimant must provide a detailed description

of her headaches from someone, preferably a medical professional, who has observed one of her

typical headaches. 40 C.F.R. § Pt. 404, Subpt. P, App. 1. Both Paragraphs B and D require that

the claimant experience headaches medically equivalent to “dyscognitive seizures,” that is,

seizures “characterized by alteration of consciousness without convulsions or loss of muscle

control.” Id. Paragraph B requires “[d]yscognitive seizures occurring at least once a week for at

least three consecutive months despite adherence to prescribed treatment.” Id. Paragraph D

requires “[d]yscognitive seizures occurring at least once every two weeks for at least three

consecutive months despite adherence to prescribed treatment, as well as a marked limitation in

physical functioning; understanding, remembering or applying information; interacting with

others; concentration, persistence, or pace; or adapting and managing oneself.” Id.

Here, the ALJ found that no impairment or combination of impairments met or medically

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

1 (Tr. 14). The ALJ stated as follows:

[T]he claimant does not equal the criteria of listings 11.02B or 11.02D because

the descriptions of her headaches does [sic] not suggest that they are analogous to

dyscognitive seizures, which are characterized by alteration of consciousness,

during which blank staring, a change of facial expression, and/or automatisms

may occur (11.00H1a). The record as a whole does not demonstrate that the

claimant’s headache disorder met or medically equaled any listing prior to her

date last insured.

(Tr. 14).

As a threshold matter, Plaintiff argues that the ALJ’s statement indicates the ALJ

improperly placed emphasis on the actual symptoms of epilepsy, as opposed to whether

Plaintiff’s symptoms were equivalent in severity (Doc. 15 at 4-5). The Court disagrees.

In using the word “analogous,” the ALJ conducted an appropriate equivalence analysis.

Plaintiff primarily argues that the record evidence of her migraines was sufficient

to satisfy equivalence with the epilepsy listing (Doc. 15 at 5-6). The relevant disability

period is February 27, 2015 to June 30, 2016. While Plaintiff was diagnosed with

menstrual migraines and intractable migraines without aura, those disorders were first

noted in 2017 (Tr. 600-02, 778-79). Plaintiff’s only diagnosis as of the relevant disability

period was “migraine not intractable,” first noted in 2008 (Tr. 778). Cf. Nail v. Kijakazi,

No. 4:20 CV 1422 CDP, 2022 WL 832328, at *7 (E.D. Mo. Mar. 21, 2022) (reversing

equivalence determination where the plaintiff had diagnoses of vestibular migraine and

chronic migraine).

As of February 27, 2015, Plaintiff was using Excedrin to treat her migraines (Tr.

893). As of March 2, 2015, Plaintiff reported that the severity of her pain was 4/10 at its

worst and that the typical duration of an individual headache was six hours (Tr. 891,

1113). Her degree of functional impairment is identified as “moderate” (id.). She started

having headaches six years prior and had seen a neurologist in the past but he retired

(id.). She reported that the headaches started again in the past several months and

followed the same pattern they had in the past (id.). Zomig seemed to help best in the

past (id.). Plaintiff was prescribed Zomig (Tr. 892, 1115). Plaintiff was also referred to

the Mercy Clinic Headache Center but they did not take her insurance and she was

referred to neurology (Tr. 890-91). On March 7, 2015, Plaintiff reported a migraine

lasting eight days in a row and that her medication was not making it go away, and was

advised to go to the ER if necessary (Tr. 890). On March 9, 2015, she reported that her

headaches on Friday and Saturday were not as bad as on Sunday and that she did not

have a headache at all yesterday (id.). On March 11, 2015, she was advised that if she

was unable to see any neurologist to call and get another referral (Tr. 1116).

On November 21, 2015, Plaintiff reported she started to have headaches and/or

migraines again and requested Zomig (Tr. 882-83). On November 23, 2015, Plaintiff

reported that Zomig works best for her as it takes 20-30 minutes to be effective versus an

hour and a half with other medications (Tr. 882). On January 11, 2016, Plaintiff

requested more Zomig but denied having a headache at that time (Tr. 880-82, 1121-23).

Her degree of functional impairment is identified as “moderate” (Tr. 880, 1121). As of

January 15, 2016, Plaintiff reported having a migraine for eight days straight (Tr. 879),

despite denying any headache on January 11. On January 19, 2016, Plaintiff requested

more Zomig (Tr. 877-78, 1124-25). Her degree of functional impairment is identified as

“moderate” (Tr. 877, 1124).

On May 10, 2016, Plaintiff requested and received a referral to endocrinology for

“thyroid and menstrual migraines/hormonal imbalances” (Tr. 870-71). On June 10, 2016,

Plaintiff called about headaches (Tr. 866). On June 16, 2016, Plaintiff reported she was

having a lot of migraines lately and was told she could take a larger dose of Zomig (Tr.

865). On June 23, 2016, Plaintiff called with issues about insurance coverage of the

Zomig (id.). On June 24, 2016, Plaintiff called crying and upset due to migraine pain and

not having any medication available (id.). She was advised to go to the ER if necessary

(id.). On June 28, 2016, Plaintiff reported having migraines since June 18 when her

period started, and requested more medication (Tr. 863). On June 29, 2016, Plaintiff

again reported a migraine since June 18 and requested more medication, but was “ok for

today-so far” (id.).

There is no indication in Plaintiff’s medical records from the relevant disability

period that Plaintiff experienced headaches medically equivalent to dyscognitive seizures,

much less that such headaches occurred once a week or once every two weeks for a

consecutive three months, as required by Paragraphs B and D respectively. This is not

the “uncommon” case where a person with primary headache disorder exhibits equivalent

signs and limitations to those detailed in the epilepsy listing. The Court finds no error in

the ALJ’s determination that Plaintiff’s unspecified migraines did not medically equal the

epilepsy listing.

B. RFC

Plaintiff argues that the RFC failed to include Plaintiff’s need for absences from

work due to her migraines (Doc. 15 at 7). As set forth above, during the relevant

disability period, Plaintiff identified her migraines as a 4/10 pain at their worst and her

functional impairment is consistently identified as moderate. Plaintiff was prescribed

Zomig as needed, with permission to increase her dose in June of 2016. While she

occasionally had trouble accessing it, the Zomig seemed to provide some control of her

symptoms as it had done in the past. Plaintiff did not progress to more aggressive

treatments like Botox and, despite being advised to go to the ER if necessary, she had no

ER visits related to her migraines. Cf. Hess v. Colvin, No. 4:14CV1593 CDP, 2015 WL

5568056, at *1, *13 (E.D. Mo. Sept. 22, 2015) (remanding in part because ALJ did not

incorporate migraine difficulties into RFC where Plaintiff had history of ER visits due to

migraines). While she reported migraines lasting eight or more days, some medical

evidence undermines those claims and there is no indication in Plaintiff’s medical records

that the severity of her migraines was sufficient to necessitate absences. In addition,

Plaintiff worked as a stay-at-home mom and started her own vintage rentals business

during the relevant disability period (Tr. 870-71). The Court finds no error in the ALJ’s

failure to include a need for absences in the RFC.

V. CONCLUSION

For the foregoing reasons, the Court finds that substantial evidence on the record as a whole

supports the Commissioner’s decision that Plaintiff is not disabled.

Accordingly,

IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and

Plaintiff’s Complaint is DISMISSED, with prejudice.

A separate judgment shall be entered incorporating this Memorandum and Order.

Dated this 16th day of March, 2023.

/s/ Noelle C. Collins

NOELLE C. COLLINS

UNITED STATES MAGISTRATE JUDGE