The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
REGINALD JEROME THOMAS, )
)
Plaintiff, )
)
Vv. ) 1:19CV290
)
ANDREW SAUL, )
Commissioner of Social Security )
Administration, ! )
Defendant. )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Reginald Jerome Thomas (“Plaintiff”) brought this action pursuant to Section
1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. § 1383(c)@)), to obtain
judicial review of a final decision of the Commissioner of Social Security denying his claim for
Supplemental Security Income (“SSI’’) under Title XVI of the Act. The patties have filed
ctoss-motions for judgment, and the administrative record has been certified to the Court for
review.
I. PROCEDURAL HISTORY
Plaintiff then protectively filed an application for SSI in November of 2016, alleging a
disability onset date of Januaty 1, 1996, later amended to November 10, 2016. (Tr. at 11, 304-
' Andtew Saul was confitmed as the Commissioner of Social Security on June 4, 2019, and was sworn in on
June 17, 2019. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew Saul should be
substituted for Nancy A. Berryhill as the Defendant in this suit. No further action need be taken to continue
this suit by reason of the last sentence of section 405(g) of the Social Security Act, 42 U.S.C. § 405(g).
312, 324.)2 His application was denied initially (I't. at 216-226) and upon reconsideration
at 230-239). Thereafter, Plaintiff requested an administrative hearing de novo before an
Administrative Law Judge (“ALJ”). (I't. at 240-242.) Plaintiff, along with his attorney and an
impartial vocational expert (“VE”), attended the subsequent hearing on August 3, 2018. □□□□
at 120.) The ALJ concluded on October 15, 2018 that Plaintiff was not disabled within the
meaning of the Act. (Tr. at 11-20.) On January 22, 2019, the Appeals Council denied
Plaintiff's request for review of the decision, thereby making the ALJ’s conclusion the
Commissionet’s final decision for purposes of judicial review. (I'r. at 1-4.)
IL. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner's denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of teview of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
AL] if they ate supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal
quotation omitted),
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
2 Plaintiff previously filed an application for SSI that was denied by an Administrative Law Judge in June
2015, with review denied by the Appeals Council in August 2016, and with no request for judicial review.
(Tr. at 11, 150-158,
Transcript citations refer to the Sealed Administrative Record [Doc. #9].
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is
evidence to justify a tefusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (intetnal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[AL]].” Mastto, 270 F.3d at 176 (internal brackets and quotation matks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
ALJ’s finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a cottect application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that “[a] claimant for disability .
benefits beats the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). In this context, “disability” means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to tesult in death or which has lasted or can be expected to last for a continuous
petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).
“The Commissionet uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a sevete impairment; 3) had an impaitment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could petform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “(tlhe first step
determines whether the claimant is engaged in “substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.
If not, benefits ate denied.” Bennett v. Sullivan, 917 F.2d 157, 159 4th Cir. 1990).
On the other hand, if a claimant catries his or her burden at the first two steps, and if
the claimant’s impairment meets ot equals a “listed impairment” at step three, “the claimant
is disabled.” Mastto, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two,
but falters at step thtee, ie., “[i]f a claimant’s impaitment is not sufficiently severe to equal or
exceed a listed impairment,” then “the AL] must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179. Step four then requires the ALJ to assess whether, based on
that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
wotk, the analysis proceeds to the fifth step, which “requires the [Government] to prove that
a significant number of jobs exist which the claimant could perform, despite [the claimant’s]
impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and past work expetience) to adjust
to a new job.” Hall, 658 F.2d at 264-65. If at this step, the Government cannot catty its
“evidentiary butden of proving that [the claimant] remains able to work other jobs available
in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.
Ill. DISCUSSION
In the ptesent case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity since November 10, 2016, the application date.” (Tr. at 13.) Plaintiff therefore met
his butden at step one of the sequential evaluation process. At step two, the AL] further
determined that Plaintiff suffered from the following severe impairments:
lumbar degenerative disc disease, headaches, and a meniscus teat with a history
of lower limb fracture.
dd. at 14.) The AL] found at step three that these impairments did not meet or equal a
disability listing. dd.) The ALJ then assessed Plaintiff's RFC and determined that he could
perform light work, with the following additional limitations:
the claimant is able to ambulate short distances . . . without a cane; can
frequently climb ramps and statrs; can occasionally climb ladders, ropes, and
scaffolds; can occasionally balance; can frequently stoop, kneel, crouch, and
crawl; must avoid concentrated exposure to hazards such as unguarded
machinery and unprotected heights; the clatmant must be permitted to change
between sitting and standing every 30 minutes although he will remain on task.
(Tr. at 15.) Based on the RFC determination, the AL] found under step four of the analysis
that Plaintiff could not perform any past relevant work. (Ir. at 19.) However, the ALJ
determined at step five that, given Plaintiffs age, education, work experience, RFC, and the
testimony of the VE as to these factors, he could perform other jobs available in the national
economy. (Id.) Therefore, the AL] concluded that Plaintiff was not disabled under the Act
from November 10, 2016, the amended onset date. (Id. at 20.)
Plaintiff now argues that the AL] erred in a number of overlapping respects. First,
Plaintiff contends that “[t]he AL] ert[ed] by failing to include limitations in the RFC resulting
from severe migraine headaches.” (Pl.’s Mem. [Doc. #13] at 6-15.) Second, Plaintiff asserts
that “the ALJ ignore[d] facts in evidence that contradicted the AL]’s conclusion” in
“evaluating migraine headaches.” (Id. at 15-17.) Third, Plaintiff contends that the AL]
“Failfed| to discuss and analyze pain properly” by failing to “specifically evauate[] chronic
migtaine headache pain.” (Id. at 17-18.)
A. REC
As noted, Plaintiff first contends that “[t]he ALJ ett[ed] by failing to include limitations
in the RFC resulting from severe migraine headaches.” (Pl.’s Mem. at 6-15.) “RFC is a
measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453
F.3d at 562 (noting that administrative regulations require RFC to reflect claimant’s “ability to
do sustained work-related physical and mental activities in a work setting on a regular and
continuing basis ... [which] means 8 hours a day, for 5 days a week, or an equivalent work
schedule” (internal emphasis and quotation marks omitted)). The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s “ability to do sedentary,
light, medium, heavy, or very heavy work,” as well as “nonexertional limitations (mental,
sensory, of skin impaitments).” Hall, 658 F.2d at 265. “RFC is to be determined by the AL]
only after [the ALJ] considers all relevant evidence of a claimant’s impairments and any related
symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
Here, the AL]’s assessment of Plaintiffs RFC as it relates to his migraine headaches is
susceptible to judicial review and supported by substantial evidence. After noting that Plaintiff
suffered from the following sevete impaitments: lumbar degenerative disc disease, headaches,
and a meniscus teat with a history of lower limb fracture (Tr. at 14), the ALJ then pointed to
multiple pieces of evidence to support her RFC determination as to Plaintiff's migraine
headaches. (Tr. at 15-19.) First, the ALJ generally summarized Plaintiffs own reports to
treatment providers, reflecting that Plaintiff was treated for his headaches on only three
occasions since the last administrative determination: in March 2015, March 2016, and January
2018. (Tr. at 16-18.) The AL]’s summary further reflects that Plaintiff made multiple other
medical visits during the relevant period, without any complaint of headaches. (See, e.g., Tt.
at 16-18, 719, 721, 773, 821, 1011, 1061, 1096-97, 1231, 1284, 1312, 1336, 1361; see also Tr.
at 33, 40, 44, 49.)
Second, the ALJ also evaluated in detail the medical record for the only time Plaintiff
complained to medical ptoviders that he was actually expetiencing a migraine during the petiod
of alleged disability (from the November 2016 alleged onset date through the ALJ’s October
2018 decision), in January 2018. As noted in the AL]’s decision,
In January 2018, the claimant presented to the emergency room complaining of
migtaine headaches and back pain after falling on the ice. There was no
tenderness to palpation of the cervical spine or the sinuses. The claimant had
full strength and sensation. He ambulated with a coordinated gait. The
evaluating physician stated that his evaluation did not show a pathology that
would requite ongoing or emergency intervention or inpatient treatment.
(Tr. at 18.) According to that medical record, Plaintiff reported that he had not had a migraine
ina year (Tt. at 1257), which is consistent with the timeline summarized in the ALJ’s decision,
reflecting that the last prior treatment for a headache was over a year prior, in Match 2016 (Ir.
at 16-18, 632). The Januaty 28, 2018 medical record reflects that Plaintiff reported to his
medical provider that his migtaine was “frontal, throbbing and not exacerbated by light or
sound” and “this is typical for his prior exacerbations,” with a diagnosis of “other migraine
without status migtainosus, not intractable.” (Tr. at 16, 18, citing ‘I'r. at 1257-1261.) In light
of this record, the ALJ reasonably concluded that “the objective medical evidence shows that
these were not classic migraine headaches in that treatment notes indicate that light and sound
did not aggravate his headaches.” (I't. at 16.)3 Thus, to the extent Plaintiff contends that the
ALJ should have included a limitation in the RFC with respect to light or sound, the AL]’s
decision explains why no such limitation was included, based on the medical record.
Third, the ALJ relied on the prior administrative determination in Plaintiffs earlier
case, in accordance with Albright v. Commissioner, 174 F.3d 473 (4th Cir. 1999). Specifically,
the ALJ pointed to the prior, final administrative determination reflected in a prior ALJ
decision dated June 8, 2015. In that prior determination, the earlier ALJ concluded that “[t]he
claimant’s headaches appear to be intermittent and relieved with medications. Therefote, .. .
the claimant is restricted to medium work with occasional ladder climbing due to his lumbar
degenerative disc disease and migraine headaches.” (Tr. at 156.) The AL in the present case
telied on that determination but concluded that additional impairments, particularly Plaintiffs
developing knee impairment and worsening back symptoms, warranted adding “additional
limitations to the claimant’s previous residual functional capacity, but still find[ing] that the
claimant is not disabled.” (Tr. at 18.) Thus, the AL] relied in part on the earlier determination
With respect to the earlier treatment record, the ALJ noted that the March 2016 record reflected a complaint
of a headache with “no acute findings.” (Tr. at 16, 630.) That record notes a reported pain of 5/10, dull
generalized pain that did not radiate, not stress-related, not worsened by anything, with no visual disturbance
and no nausea, also diagnosed as “migraine without status migrainosus, not intractable, unspecified migraine
type.” (Tr. at 630-32.)
that Plaintiffs headaches (and other impaitments) were addressed by the lifting and postural
resttictions in the REC.
Finally, the ALJ then evaluated each of the medical opinions in the recotd and
considered each physician’s assessment of Plaintiffs ability to work despite his complaints of
migraines before announcing the weight she afforded each opinion. In pertinent part, the ALJ
explained that state agency physicians Dakota Cox, M.D., and Robert N. Pyle, M.D., (experts
in disability review), opined, in relevant patt, that Plaintiff could perform medium work and,
to account fot his migraines, he should avoid concentrated exposure to hazards. (Tr. at 18,
citing Tr. at 186-87, 189, 208, 210.) Dr. Cox specifically opined that Plaintiff did not have
limitations to tempetatute, noise, or vibration, but should avoid concentrated exposure to
hazatds, and the basis for this environmental limitation was Plaintiffs “migraines,
hypertension, hyperlipidemia.” (I'r. at 187.) Dr. Pyle also specifically opined that Plaintiff
did not have limitations to temperatute, noise, or vibration, but should avoid concentrated
exposute to hazards, and the basis for this environmental limitation was Plaintiffs “migraines,
hypettension, hyperlipidemia.” (Tr. at 208.) The ALJ afforded some weight to the state agency
opinions because they wete generally supported by the evidence in the record, but she afforded
gteatet exertional restrictions, finding that Plaintiff should be limited to light work. (Tr. at 15-
19.) The AL] appropriately credited their opinions that Plaintiff should avoid concentrated
exposute to hazatds, which was specifically based on his migraines as noted above, and the
ALJ incorporated this limitation into her RFC finding. (Tr. at 15, 18.) No physician in the
record opined that Plaintiffs migraines resulted in greater functional limitations.
0 .
Thus, in setting the RFC, the ALJ specifically considered and relied upon the overall
medical record, the specific treatment records for migraine headaches, the prior final
administrative determination as provided in Albright, and the specific opinion of the state
agency physicians. For all of these teasons, the ALJ’s analysis was well-supported and
susceptible to review.
Plaintiffs arguments to the contrary are not persuasive. He first contends that the AL]
“failed to make any express finding at step 2 concerning whether [Plaintiff] suffers from
migtaines (as distinguished from generic headaches).” (PI.’s Mem at 7.) Plaintiff also contends
that “the RFC in effect contains no limitations resulting from headaches or migraines” and
obsetves that although the non-examining state agency physicians limited Plaintiffs exposure
to hazardous envitonments, the AL] only gave their opinions some weight. (Id. at 7-9.)
Plaintiff also contends that the AL]’s assessment of his migtaine headaches frustrates
meaningful review Gd. at 10) and argues that his migraine headaches require additional
resttictions in the RFC (id. at 12-13 referencing Tr. at 537-538, 770, 778, 964, 1257). None of
these arguments warrant remand.
First, it is clear from the AL]’s decision that she considered Plaintiff's migraine
headaches a sevete impairment throughout the decision. Although the ALJ initially found
Plaintiff's “headaches” (rather than “migraine headaches”) to be a sevete impairment at step
two (Ir. at 14), the ALJ immediately explained that Plaintiff was found to have “migraine
headaches” in a prior disability decision and that this impairment continued to cause him
“mote than minimal functional limitations.” (Id.) The ALJ then mentioned migraine
headaches nearly a dozen times during the remainder of the decision. (Tr. at 14-18.) The ALJ
10
expansively referred to “headaches” and considered and included all of Plaintiffs complaints
of headaches, whether or not specifically categorized as migraine headaches. The Court finds
no errot in this analysis. Moreover, even if there were an ertor, any error at step two is
harmless, because the ALJ thoroughly considered Plaintiff's migraine headaches as a severe
impairment and addressed them throughout the decision.
Second, despite Plaintiffs arguments to the contrary, the AL] did include limitations in
the RFC to accommodate his migraines. As noted, the AL] first considered the medical record,
including in detail the medical records related to Plaintiffs migraine headaches. The ALJ also
telied on the prior administrative determination, which held that the lifting and postural
limitations accounted for Plaintiff's migtaines. The ALJ then went further and relied on the
opinions of the state agency physicians to include a limitation on Plaintiffs exposure to
hazards to account for his migraine headaches. (T'r. at 15-19.) ‘To the extent Plaintiff contends
that a limitation on exposute to hazards cannot limit the RFC or is necessarily insufficient to
account for limitations related to migraines, the Court finds these contentions unpersuasive.*
Finally, as discussed above, to the extent Plaintiff contends that the ALJ should have included
a limitation in the RFC with respect to light or sound, the ALJ’s decision explains why no such
limitation was included, based on the medical record.
4Tn support of his contention that an RFC limiting a claimant’s exposure to hazards is insufficient to account
fot migraine headaches as a general matter, Plaintiff cites Beard v. Astrue, No. CIV.A. BPG-10-2378, 2011 WL
3880417 (D. Md. Aug. 31, 2011). However, in Beard, the court found that an RFC that limited the claimant’s
exposute to hazards was actually sufficient to account for that claimant’s migtaine headaches. Beard, 2011 WL
3880417 at *3-5. Beard therefore stands for the proposition that, in the proper context, limited exposure to
hazatds is sufficient to account for the limitations attendant to migraine headaches. Of course, the RFC
determination is specific to the facts of each case, and the issue in the present case, as in any case, is whether
the ALJ’s determination here is susceptible to judicial review and whether there is substantial evidence to
support the ALJ’s determination, as discussed at length above.
11
Third, the fact that the AL] only gave “some weight” to the opinions of the non-
examining state agency consultants does not watrant remand. The opinions of the non-
examining state agency physicians limited Plaintiffs exposure to hazards in an effort to
account for his migraines, as discussed in detail above. (Tr. at 18, citing Tr. at 186-87, 189,
208, 210.) The AL] adopted this restriction in the RFC and the Court is not left to guess as
to how this came about ot whether it was warranted. (Ir. at 18.) There was no error hete.
Fourth, the AL]’s decision as to Plaintiff s migtaines does not frustrate meaningful
teview. As explained, the AL] addressed migraines roughly a dozen times in her decision. The
ALJ’s discussion and summary of the record also makes it cleat that while Plaintiff did have a
history of migtaines, and did suffer at least one migraine during the alleged period of disability,
thete was sparse evidence that they were as frequent or as limiting as alleged. In short, the
ALJ’s decision is susceptible to judicial review.
B. Contradictory Evidence -
In an overlapping continuation of his prior argument regarding his migraines, Plaintiff
next asserts that “the ALJ ignore[d] facts in evidence that contradicted [her] conclusion” and
asserts further that “[nJowhere in the record does a treating or examining, or even consulting
physician state [Plaintiffs] typical migraine [is] not exacerbated by light and sound, or question
the diagnosis of migtaines.” (Pl’s Mem. at 15-16.) This argument is also unpersuasive.
More specifically, in support of her RFC determination, the AL] pointed to the
treatment note from January of 2018 indicating that Plaintiff was experiencing “a migraine
exacerbation . . . but this is typical for his prior exacerbations of frontal, throbbing and not
exacetbated by light or sound.” (['r. at 16, 18, citing Tr. at 1257.) These symptoms occurred
12
a few days after Plaintiff slipped and fell on the ice hurting his back, at a time where he had
run out of migraine headache medication, and more than a year after he reported his last
migraine headache. (Tr. at 1257-1258.) Plaintiff, in pertinent part, was diagnosed with
migtaine headaches without migtainosus, not intractable. (It. at 18, 1261, He was prescribed
headache medicine (Fioricet) and advised to take it. (I'r. at 1261-1262.) Consequently, the ALJ
did not ignore this evidence and instead reasonably found that although Plaintiff alleged severe
headaches, the evidence did not reflect that they were as disabling as alleged. (T'. at 16.)
Beyond this, the only example within the relevant period that Plaintiff points to in
support of his contention that the ALJ ignored material contradictory evidence is that of a
Februaty 2017 consultative examination with Dr. Jairon Downs, M.D., in which Plaintiff
points to his own self reporting of migtaines. Specifically, Plaintiff reported to Dr. Downs
that his migraines occurred “almost daily” and were made worse by bright light. (It. at 770,
However, that same consultative assessment points out that Plaintiff had no neurological
deficits the day of this exam and teported pain of only 2/10. (id.) Moreover, the ALJ’s
assessment of the longitudinal medical record, described above, shows few to no migraine
headaches (or headaches at all) during the relevant period. Consequently, the AL]’s
determination that the medical record did not fully support Plaintiffs self-reported symptoms
was supported by substantial evidence.°
5 Plaintiff also objects to the AL]’s observation that an earlier Match 2015 doctor visit demonstrated “no focal
neurologic deficit [and] [a] head CT scan [that] was negative (Ex. C1F.).” (PL’s Mem. at 16 referencing Tr. at
16, 537-551.) Plaintiff asserts that a normal scan when looking for the cause of migraines means nothing.
However, the AL]’s accurate description of this scan is not ettor, and simply provided the available medical
information regarding Plaintiffs past complaints of headaches.
13
C. Symptom Evaluation
Plaintiffs last argument is that the ALJ “fail[ed] to discuss and analyze pain properly.”
(Pl’s Mem. at 17-18) As explained below, this argument is also without merit.
Under the applicable regulations, the AL]’s decision must “contain specific reasons
fot the weight given to the individual’s symptoms, be consistent with and supported by the
evidence, and be clearly articulated so the individual and any subsequent reviewer can assess
how the adjudicator evaluated the individual’s symptoms.” Social Security Ruling 16-3p, Titles
Il and XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p, 2017 WL 5180304 (Oct.
25, 2017) (“SSR 16-3p”); see also 20 C.F.R. § 416.929. In Craig v. Chater, the Fourth Circuit
addressed the two-part test for evaluating a claimant’s statements about symptoms. Craig, 76
F.3d at 594-95. “First, there must be objective medical evidence showing ‘the existence of a
medical impaitment(s) which results from anatomical, physiological, or psychological
abnormalities and which could reasonably be expected to produce the pain ot other symptoms
alleged.” Id. at 594 (emphasis omitted) (citing 20 C.F.R. § 416.929(b)). If the ALJ determines
that such an impairment exists, the second patt of the test then tequites him to consider all
available evidence, including Plaintiffs statements about his pain, in order to evaluate “the
intensity and persistence of the claimant’s pain, and the extent to which it affects [his] ability
to work.” Craig, 76 F.3d at 595.
This apptoach facilitates the ALJ’s ultimate goal, which is to accurately determine the
extent to which Plaintiffs pain or other symptoms limit his ability to perform basic work
activities. Relevant evidence for this inquiry includes Plaintiffs “medical history, medical
. 14
signs, and laboratory findings” Craig, 76 F.3d at 595, as well as the following factors set out in
20 C.ELR. § 416.929(c)(3):
(i) [Plaintiffs] daily activities;
(ii) The location, duration, frequency, and intensity of [Plaintiff's] pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(tv) The type, dosage, effectiveness, and side effects of any medication [Plaintiff]
take[s] or [has] taken to alleviate [his] pain or other symptoms;
(v) Treatment, other than medication, [Plaintiff] receive|s] or [has] received for
telief of [his] pain or other symptoms;
(vi) Any measures [Plaintiff] use[s] or [has] used to relieve [his] pain or other
symptoms (e.g., lying flat on [his] back, standing for 15 to 20 minutes every
hour, sleeping on a board, etc.); and
(vii) Other factors concerning [Plaintiffs] functional limitations and restrictions
due to pain or other symptoms.
Where the AL] has considered these factors and has heard Plaintiffs testimony and observed
his demeanor, her determination is entitled to deference. See Shively v. Heckler, 739 F.2d 987,
989 (4th Cir. 1984).
In the present case, the AL] determined that Plaintiffs “medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms,” but that
Plaintiffs “statements concerning the intensity, persistence[,] and limiting effects of these
symptoms ate not entirely consistent with the medical evidence and other evidence in the
recotd for the reasons explained in this decision.” (Tr. at 16.) Therefore, Plaintiffs challenge
hinges on step two of the Craig analysis.
15
It is undisputed that at step two of the analysis, the ALJ should not reject a claimant’s
statements “about the intensity and persistence of [his] pain or other symptoms or about the
effect [his] symptoms have on [his] ability to work solely because the available objective
medical evidence does not substantiate [his] statements.” 20 C.F.R. § 416.929(c)(2). Thus,
“subjective evidence of pain intensity cannot be discounted solely based on objective medical
findings.” Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017). However, it is also undisputed
that a plaintiffs “symptoms, including pain, will be determined to diminish [his] capacity for
basic work activities [only] to the extent that [his] alleged functional limitations and restrictions
due to symptoms, such as pain, can reasonably be accepted as consistent with the objective
medical evidence and other evidence.” 20 C.F.R. § 416.929(0)(4). Thus, objective medical
evidence and other evidence in the record ate “crucial to evaluating the intensity and
persistence of a claimant’s pain and the extent to which it impairs [his] ability to work” and
“Tajlthough a claimant’s allegations about [his] pain may not be discredited solely because they
ate not substantiated by objective evidence of the pain itself or its severity, they need not be
accepted to the extent they ate inconsistent with the available evidence, including objective
evidence of the underlying impairment, and the extent to which that impairment can
reasonably be expected to cause the pain the claimant alleges [ |he suffers.” Hines, 453 F.3d
at 565 n.3 (quoting Craig, 76 F.3d at 595); see also SSR 16-3p (“[O]bjective medical evidence
is a useful indicator to help make reasonable conclusions about the intensity and persistence
of symptoms, including the effects those symptoms may have on the ability to perform work-
related activities ....”).
Accotding to the regulatory guidance:
16
If an individual’s statements about the intensity, persistence, and limiting effects
of symptoms ate consistent with the objective medical evidence and the other
evidence of record, we will determine that the individual’s symptoms ate more
likely to reduce his or her capacities to perform work-related activities .... In
contrast, if an individual’s statements about the intensity, persistence, and
limiting effects of symptoms ate inconsistent with the objective medical
evidence and the other evidence, we will determine that the individual’s
symptoms ate less likely to reduce his or her capacities to perform work-related
activities ....
SSR 16-3p, 2017 WL 5180304, at *8.
In the ptesent case, a thorough review of the AL]’s decision and the record as a whole
reveals that the AL] properly considered objective medical evidence and other evidence, and
explained that determination in the decision. In evaluating the evidence, the ALJ specifically
identified multiple reasons supporting her determination. (Tr. at 16-19.) More specifically as
to Plaintiffs migraine headaches, the AL] referenced Plaintiff's statements, including his
testimony that he gets migraines a few times per month, which last several days and require
him to find a dark spot with no noise, along with his complaints to state agency physician Dr.
Downs that he had chronic headaches “evety day.” (Tr. at 16-17, 130, 134, 770.)
The AL] then pointed to specific reasons for partially discounting Plaintiff's testimony
as to his migraine headaches. (Tr. at 16-19.) As explained, Plaintiff seldom reported migraine
headaches (ot any type of headache) during the relevant period (see, e.g., Tr. at 17, 719, 821,
1011, 1231, 1257-1258), he regularly revealed normal sensoty and neurological functioning,
(see, e.g., T't. at 16-18, 719, 721, 773, 821, 1011, 1061, 1096-97, 1231, 1284, 1312, 1336, 1361),
and the migraine headache(s) he did experience during the relevant period were not typically
sensitive to noise or light (see e.g., Tr. at 16, 18, citing ‘Tr. at 1257-1261). Additionally, the
non-examining state agency physicians also opined that Plaintiff's migraine headaches could
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be addressed by limiting his exposure to concentrated hazards, which the ALJ accommodated
in the RFC detetmination. (Tr. at 18, citing Tr. at 186-87, 189, 208, 210.) All this is sufficient
evidence to support the ALJ’s assessment of Plaintiffs subjective symptoms.
Ultimately, the ALJ’s decision as it relates to Plaintiffs migraine headaches is
susceptible to judicial review and supported by substantial evidence. Plaintiff has not
identified any errors that tequite remand, and the ALJ’s decision should be affirmed.
IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding
no disability be AFFIRMED, that Plaintiffs Motion for Judgment on the Pleadings [Doc.
#12] be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #14] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 18 day of June, 2020.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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