Opinion

MEYER v. O'MALLEY

Court
District Court, M.D. North Carolina
Filed
Mar 11, 2024
Cited by
0 cases
Authority
More cited than 24.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KIMBERLY M., )

)

Plaintiff, )

)

v. ) 1:22CV859

)

MARTIN J. O’MALLEY;! )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Kimberly M. (“Plaintiff”) brought this action pursuant to Section 205(g) of

the Social Secutity Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial review

of a final decision of the Commissioner of Social Secutity denying her claim for Disability

Insutance Benefits (“DIB”) undet Title II of the Act. The parties have filed cross-motions

for judgment, and the administrative record has been certified to the Coutt for review.

I, PROCEDURAL HISTORY

Plaintiff protectively filed an application for DIB on April 13, 2020, alleging a disability

onset date of Februaty 18, 2020. (Tr. at 16, 247-51, 255-56.)? Plaintiff's application was denied

initially (Tr. at 118-36, 155-63) and upon teconsidetation (It. at 137-52, 165-69). Thereafter,

1. On Decembet 20, 2023, Martin J. O’Malley was sworn in as Commissioner of Social Security, replacing Acting

Commissioner Kilolo Kijakazi. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin J.

O’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit. No further action need be taken

to continue this suit by teason of the last sentence of section 405(g) of the Social Security Act, 42 USC. §

405(¢).

2 Transcript citations refer to the Sealed Administrative Record [Doc. #9].

Plaintiff requested an administrative heating de novo before an Administrative Law Judge

(“ALJ”). (Le. at 171-72.) On November 17, 2021, Plaintiff, along with her attorney, attended

the subsequent telephonic heating, at which Plaintiff and an impattial vocational expert

testified. (Ir. at 16.) Following the hearing, the AL] concluded that Plaintiff was not disabled

within the meaning of the Act (T'r. at 36), and on August 16, 2022, the Appeals Counsel denied

PlaintifPs request for review of that decision, thereby making the ALJ’s conclusion the

Commissionet’s final decision for purposes of judicial review (T'r. at 1-7).

Il LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’s denial of

social security benefits.” Hines v. Batnhatt, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of review 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 y. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

AL) if they are supported by substantial evidence and were reached through application of the

cottect legal standard.” Hancock v. Asttue, 667 F.3d 470, 472 (4th Cir. 2012) (@nternal

quotation omitted).

“Substantial evidence means ‘such relevant evidence as a reasonable mind tight accept

as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mete

scintilla of evidence but may be somewhat less than a preponderance.” Mastto v. Apfel, 270

F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict wete the case befote a juty, then there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal 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]].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks 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

AL)’s finding that [the claimant] is not disabled is supported by substantial evidence and was

teached based upon a cottect application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cit. 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 result 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)).3

“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Program (SSDI), established by ‘Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. ‘The Supplemental Security Income

Program (SSI), established by ‘Title XVI of the Act as amended, 42, US.C. § 1381 et seq,, ptovides benefits to

indigent disabled petsons. ‘The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 CER. pt. 416 (SSI), governing these two programs ate,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

“The Commissioner 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 severe impairment; (3) had an impairment that met ot equaled the

tequitements of a listed impairment; (4) could return to her past relevant work; and (5) if not,

could perform 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 inquity. For example, “[t]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. ‘I'he second step determines if the claimant is ‘severely’ disabled.

If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carties his or her burden at the fitst two steps, and if

the claimant’s impaitment meets or equals a “listed impaitment” at step thtee, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two,

but falters at step three, i.e., “[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 179.4 Step four then requires the AL] to assess whether, based on

4 “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 teflect 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, or skin impaitments).” Hall, 658 F.2d at 265. “REC is to be determined by the AL] only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢,¢., pain).”

Hines, 453 F.3d at 562-63.

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 AL] 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 experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot catty its

“evidentiaty burden 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 present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” since her alleged onset date. The ALJ therefore concluded that Plaintiff met her

burden at step one of the sequential evaluation process. (I'r. at 18.) At step two, the AL]

further determined that Plaintiff suffered from the following severe impaitments:

cetvical degenerative disc disease (DDD) with status post fusion; Crohn’s

disease; gastroesophageal reflux disease (GERD); migtaine headaches; major

depressive disorder (MDD) with anxious distress; posttraumatic stress disorder

(PTSD); and unspecified cognitive disorder[.]

(Ir. at 18-19.) The ALJ found at step three that none of these impaitments, individually or

in combination, met or equaled a disability listing. (Ir. at 19-22.) Therefore, the ALJ assessed

Plaintiffs RFC and determined that she could perform light work with the following,

additional limitations:

[Plaintiff] can no more than frequently stoop, kneel, crouch, crawl, or climb

staits and ramps but could only occasionally balance or climb ladders, ropes, or

scaffolds; must avoid concentrated or frequent exposute to extreme cold,

extreme heat, pulmonaty ittitants, ot hazards. Also, [Plaintiff] was limited to

undetstanding, temembering and cattying out simple and some detailed

instructions, defined to mean work activity consistent with reasoning level 4 or

SVP 2 occupations as defined by the DOT as leatned within 30 days or less; can

sustain concentration, attention, and pace sufficient enough to catty out those

instructions for two hout intervals over the course of [a] typical eight-hour

workday; can work in occupations requiting only occasional interactions with

cowotkets, supetvisors, and the public; involving low stress work defined as

having few changes in work setting or work processes with only simple work

telated decisions.

(Tr. at 22.) At step four of the analysis, the ALJ determined, based on the above RFC and the

vocational expert’s testimony, that Plaintiff was unable to perform any of her past relevant

work. (I'r. at 34.) However, the AL] found at step five that, given Plaintiffs age, education,

work experience, and RFC, along with the testimony of the vocational expert tegatding those

factors, Plaintiff could perform other jobs available in the national economy and therefore

was not disabled under the Act. (T'r. at 35-36.)

Plaintiff now challenges the AL]’s decision in three respects. First, she contends that

“[t]he ALJ’s decision does not contain a summaty or evaluation of Plaintiffs testimony,” and

that this omission violated Social Security Regulation 16-3p. (Pl.’s Br. [Doc. #17] at 1.)

Second, Plaintiff argues that the AL] “failed to adequately account for the vocationally limiting

effects of Plaintiffs migraine headaches in the [RFC assessment].” (Id.) ‘Third, Plaintiff claims

that the Appeals Council “erred by refusing to consider new evidence.” (Id.) After a thorough

teview of the tecord, the Court agrees that the ALJ’s failute to address Plaintiff's testimony

requires remand. Accordingly, the Court need not address Plaintiff's additional arguments at

this time.

Under the applicable regulations, the ALJ’s decision must “contain specific reasons for

the weight given to the individual’s symptoms, be consistent with and supported by the

evidence, and be clearly atticulated so the individual and any subsequent teviewer 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, 2017 WL 5180304 (Oct. 25, 2017);

see also 20 C.F.R. § 404.1529. Moreover, in Arakas v. Comm’r of Soc, Sec., 983 F.3d 83 (4th

Cir. 2020), the Fourth Circuit clarified the procedure an ALJ must follow when assessing a

claimant’s statements:

When evaluating a claimant’s symptoms, ALJs must use the two-step

framework set forth in 20 C.F.R. § 404.1529 and SSR 16-3p, 2016 WL 1119029

(Mar. 16, 2016). First, the ALJ must determine whether objective medical

evidence presents a “medically determinable impairment” that could reasonably

be expected to produce the claimant’s alleged symptoms. 20 CFR. §

404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.

Second, after finding a medically determinable impairment, the AL] must assess

the intensity and persistence of the alleged symptoms to determine how they

affect the claimant’s ability to work and whether the claimant is disabled. See 20

C.F.R. § 404.1529(c); SSR 16-3p, 2016 WL 1119029, at *4. At this step,

objective evidence is wot required to find the claimant disabled. SSR 16-3p, 2016

WL 1119029, at *4—-5. SSR 16-3p recognizes that “[s]ymptoms cannot always

be measured objectively through clinical or laboratory diagnostic

techniques.” Id. at *4. Thus, the ALJ must consider the entire case record and

may “not distegatd an individual’s statements about the intensity, persistence, _

and limiting effects of symptoms solely because the objective medical evidence

does not substantiate” them. Id. at *5.

983 F.3d at 95-96. Under SSR 16-3p, in evaluating a claimant’s symptoms in light of the entire

case tecotd at the second step of this framework, the ALJ must consider the claimant’s

testimony tegarding the limiting effects of the symptoms, along with information from other

medical and non-medical sources. SSR 16-3p at *6-*7. Ultimately, “it is not sufficient for [an

ALJ] to make a single, conclusory statement that ‘the individual’s statements about his or her

symptoms have been considered’ ot that ‘the statements about the individual’s symptoms are

(or ate not) supported of consistent.’ It is also not enough for [an ALJ] simply to recite the

factors described in the regulations for evaluating symptoms. The determination ot decision

must contain specific reasons for the weight given to the individual's symptoms, be consistent

with and supported by the evidence, and be cleatly articulated so the individual and any

subsequent teviewer can assess how the [AL]] evaluated the individual's symptoms.” SSR16-

3p at *9-*10.

In the present case, the ALJ failed to discuss—or even acknowledge—Plaintiffs

testimony at the administrative heating, Instead, the ALJ only addressed statements made by

Plaintiff and her father in Function Reports completed in April 2020 and March 2021,

respectively. In het decision, the AL] described these reports as follows:

The claimant alleged on a disability report that was completed on April 21, 2020,

that she suffers from Crohn’s disease, PISD, depression, anxiety, fecal

incontinence, migtaines, inflammatory arthritis, cataracts, perianal abscess, and

cognitive dysfunction, which limits her ability to work (Exh. 3E/2). Andrew

Meyet, the claimant’s father, assisted in completing a function report on the

claimant on Match 17, 2021 (Exh. 18E). Mr. Meyer indicated that the claimant’s

conditions affected her ability for lifting, squatting, bending, standing, teaching,

walking, sitting, kneeling, talking, climbing stairs, remembering, completing

tasks, concentrating, understanding, following instructions, using her hands,

and getting along with othets (Exh. 18E/14). He further stated that her

symptoms of her Crohn’s disease caused het to have nausea and vomiting (Exh.

18E/17). He further stated that her GERD caused her to have a lot of

hoatseness, sore throat, belching, nausea and vomiting and she was sometimes

unable to talk without coughing constantly and cleating her throat which did

not seem to work vety well to help with clearer speech (Exh. 18E/17). He also

stated that due to her cognitive dysfunction, she was unable to remember where

she put things, and she had to have mall security help her find her cat in the lot

many times (Exh. 18E,/18). He further stated that she had difficulty with word

finding and following directions (Exh. 18E/19).

Despite those allegations, Mr. Meyer indicated on the same function report that

the claimant took cate of a pet cat, putting food and water out for the cat (Exh.

18E/21), It was also noted that the claimant could bathe herself (Exh. 18E/23).

It was further noted that the claimant was able to do vety light cleaning, dtive a

cat, go out alone and she could go shopping in stotes (Exh. 18E/24, 25). Mr.

Meyer further indicated that the claimant spent time with others in person and

on the phone, email and texting (Exh. 18E/27).

(I'r. at 22-23.) The AL] found that “[alll the activities that Mr. Meyer reported that the

claimant could petform ate inconsistent with his previous statements. Mr. Meyer has

described daily activities that are not limited to the extent one would expect, given the

complaints of disabling symptoms and limitations.” (I'r. at 23.)

In the next patagraph of the AL]’s decision, without acknowledging or describing any

of Plaintiff's subjective complaints beyond the bate list of alleged impairments from het April

2020 Function Report, the ALJ concluded that “claimant’s statements concerning the

intensity, persistence and limiting effects of [her] symptoms ate not entirely consistent with

the medical evidence and other evidence in the record,” but without any discussion of the

Plaintiffs statements in the Function Repott or in her testimony. (I't. at 23) (emphasis added).

Significantly, at the hearing on November 17, 2021—approximately one yeat and two

yeats after the Function Reports cited by the ALJ— Plaintiff testified at length regarding her

physical and mental abilities, At the close of the heating, Plaintiffs counsel summarized het

televant testimony and related limitations:

[Plaintiff has] had Crohn’s disease for many years, [and] she still has significant

problems with abdominal pain, nausea and fecal incontinence. And especially

due to the fecal incontinence, we believe that she would require additional

breaks during the workday to either change her Depends or just to use the

facilities.

In addition to that, with [her] migraine headaches, she suffers headaches several

times pet week, which would also interfere with her ability to attend and

complete work tasks in two hour increments as required ... to do even unskilled

work.

(Tr. at 79.) In terms of incontinence, Plaintiff testified that she had to change her prior work

and could not see patients anymore because her “incontinence had gotten so bad.” (Tr. at 54.)

She further testified that she could not work due to PTSD and her incontinence, explaining

as follows:

A ... 50 ]—it’s just alot. Its constant bowel movement issue that I have

no conttol over because my sphincter is destroyed from disease and sutgery and

there’s nothing that they can do. I ttied everything, even a device that they

implanted in me... . It’s just a very terrible situation, embarrassing.

Q [Y]ou mentioned the fecal incontinence. How many bowel movements

do you typically have a day?

A I guess that it’s very hatd for me [to] give an estimate. So it could be

three. It could be ten. Sometimes it could be more than ten if I eat something,

I guess, that doesn’t get absorbed properly because I’ve had multiple bowel

tesections. So I don’t absorb normally. It’s very unpredictable. And I write it

down. I don’t know what I can and can’t eat.

Q With the Depends, do you wear them every single day?

A Yes, I wear [whatever] is cheapest. It’s not necessarily Depends, but I

also weat like a big Maxi pad that is almost—tt looks like an open diaper inside

thete so that I could change that and not have to pull the Depends because it’s

like four or five times a day that something comes out and ] don’t want to smell.

So I take out the pad if it’s not a blow out, and that way I can preserve

the Depends and put another pad in, if that makes sense.

Q And do you still have the same number of bowel movements, even

though you started taking Humita earlier this year?

A Oh, yeah. Yeah, I think it’s worse because my rheumatologist said

maybe you have more Lupus and Humita’s going to make the lupus symptoms

wotse. So I don’t know what’s going on.

Q And this fecal incontinence, do you have problems with nausea ot

abdominal pain?

10

A So my biggest problem is nausea. And I don’t know, like my—I have a

lot of, I guess, reflux and probably gastric involvement of my Crohn’s. So I get

a lot of nausea and I have to take a drug called Zoftan.... I have to take it

every day and now my insurance isn’t giving me enough. It’s vety tough and

I’m still nauseous with that.... And I get nauseous before a bowel movement.

I don’t know if ’'m going to throw up, if I’m going to have a bowel

movement because I don’t have a lot of feeling down there. It’s when it—you

know, I could feel the nausea and then I could feel the stool hit my skin. But

in my rectum I can’t really feel what’s going on.

(Tt. at 64-66.) Significantly, PlaintifPs reports of up to ten bowel movements a day are

consistent with her reports to her providers throughout the time period at issue. The AL]

recounted two of these tepotts in the administrative decision (see Tr. at 26, 27, 1206, 2866),

along with Plaintiffs statement at an April 2020 gastroenterology appointment that “[w]hen

she went out for a walk, she would weat a Depends and a pad” (Tr. at 26, 1206).5 However,

the AL] never addressed if, let alone how, these problems might affect Plaintiffs RFC.

When faced with a substantially similar issue in Dowling y. Comm’r of Soc. Sec.

Admin., 986 F.3d 377, 389 (4th Cir. 2021), the Fourth Circuit required remand. Specifically,

the Court found that

[t]here [was] considerable evidence in the record demonstrating that Appellant

regulatly experienced diarrhea and incontinence, as well as drainage from her

anal fissure. Appellant argues that these problems caused her to requite

bathroom breaks at a frequent, and often unpredictable, rate. Obviously, the

need to visit the bathroom many times throughout the day impacts one’s ability

to work. And yet, the ALJ did not analyze Appellant’s need for regular

bathroom breaks. Instead, the AL] simply noted that Appellant

“accommodate[d] her drainage and accidents by using pads.” J.A. 16. That

finding misses the point. Pads may keep Appellant’s clothes clean and help

reduce the potential for embattassing accidents. However, they do not save

5 The transcript of the hearing also reflects that Plaintiff had to leave the hearing to go to the bathroom partway

through the proceeding. (Tr. at 67.) In addition, Plaintiffs later medical records submitted to the Appeals

Council reflect that she underwent an Anorectal Manometty procedure shortly after the hearing, which

confitmed findings “consistent with weak anal sphincters and pelvic floor dyssenergia’” with a diagnosis of “Full

incontinence of feces.” (T'r. at 86-87).

11

Appellant any trips to the bathroom, since the pads need to be changed once

they ate soiled. On remand, the ALJ should evaluate the frequency at which

Appellant needed to use the bathroom and analyze how that testtiction

impacted her ability to work.

Dowling, 986 F.3d at 389. Notably, in the present case, Plaintiffs attorney specifically

questioned the vocational expert regarding breaks during the workday:

Q [B]ased on your education, training and experience, what would be the

typical breaks that are allowed . . . during an eight-hour workday?

A On morning 15-minute, half-hour lunch and 15-minute afternoon.

Q Okay. Ifa claimant requited two additional 10-minute breaks duting the

workday to use the bathtoom, for example, would that have an effect on the

claimant’s ability to work in the national economy?

A [YJes, [the need for additional breaks] would eliminate all work.

(Tr. at 77-78.) In light of this testimony, along with Plaintif? s consistent, but unaddressed,

reports that she experienced fecal incontinence throughout the relevant time period, temand

is required so that the AL] may addtess this issue in the fitst instance. See also Moore v.

Kijakazi, 2022 WL 834295 (E.D.N.C. Match 21, 2022) (“Moreover, notably absent from the

AL]’s RFC assessment is any discussion of Claimant’s testimony from the administrative

heating, and the AL] is requited to consider a claimant's statements about het symptoms, 20

C.F.R. § 416.929(a); S.S.R. 16-3p.” (emphasis in original, internal citations omitted)).

Plaintiff further testified that she experienced pain when sitting for an extended period

of time due to both spinal pain radiating to het left leg and recurrent rectal abscesses and sores

from her frequent stools. (Tr. at 68.) Plaintiff testified that with respect to her ability to sit,

“sitting with my rectal abscess has been, you know, the sores from the stool getting on me is

difficult too.” (Tr. at 68.) Plaintiff further testified that when she has “an active dtaining

12

abscess down there” she cannot sit and instead has to lay down to rest that area. (T'r. at 68.)

Again, the ALJ failed to acknowledge ot addtess this testimony, nor did she explain the

absence of sitting restrictions in the RFC aseusemedtt. See Dowling, 986 F.3d at 388-89; see

also Denise R. v. Kijakazi, 2023 WL 4898288 (D. Md. July 31, 2023) (finding that “the ALJ

does not appeat to have evaluated Plaintiffs testimony regarding her ability to sit” in light of

het impaitments including incontinence, and “[w]hile it is not necessary that an AL] addtess

evety piece of a claimant’s testimony, the AL} erroneously ignored Plaintiffs testimony about

her difficulty sitting, which is the central component of sedentary work and material to the

disability determination in this case.”); Gravely v. Kijakazi, 2023 WL 2349600 (M.D.N.C.

Match 3, 2023) (noting that “[t]he ALJ did not mention or discuss Plaintiffs testimony that

she could not sit more than five minutes at a time, nor did the ALJ otherwise address or

mention any limitations on sitting” and “i]t is unclear whether the AL] considered the related

incontinence at all, since it is not mentioned in the decision even though it was a significant

part of Plaintiffs testimony and was teflected repeatedly in the medical records” and

remanding in light of Dowling). Notably, in the present case, Plaintiffs attorney questioned

the vocational expert regarding sitting restrictions, and, as with the need for additional breaks,

the expert testified that the addition of a sit/stand option to the jobs relied upon by the ALJ

would eliminate those positions. (Tr. at 76.) Because the ALJ did not addtess Plaintiffs

sitting restrictions at all, or even mention the effect of her rectal abscesses on her ability to sit,

the Court cannot follow the AL]’s reasoning, and the sitting limitations would potentially

affect the determination in light of the vocational expert’s testimony.

13 !

Similar problems ate teflected in the AL]’s failure to address Plaintiffs testimony

tegatding her ongoing migraine headaches. Plaintiff testified that, at the time of the

administrative heating, her migraines occutted “almost daily.” (Tr. at 66.) She farther

indicated that, if she takes her abortive medication early enough, the headaches may “go away

in a couple of hours,” but that “sometimes they last for days.” (Tt. at 66.) She reported the

same frequency of migraines despite taking all of het medications as directed, and stated that

her doctors “have not found something that works.” (T't. at 66-67.) Significantly, Plaintiff

testified that, when her headaches last for days, she has needed to contact her doctot or go to

the emetgency room “because [she doesn’t] know what to do.” (I'r. at 66.)

When recounting the medical evidence, the ALJ noted Plaintiffs reports to her

neurologist that she experienced migraines “[a]t least weekly, lasting several days” and that her

rescue medication, Sumatriptan, worked well “at times.” (I't. at 27.) ‘The AL] also noted that

Topitamate, which Plaintiff took as a daily prophylactic for migraines, caused memory and

cognitive problems. (I't. at 27-28.) ‘The ALJ found that as of August 2021, Plaintiffs

migraines were “considered chronic and stable.” (Tr. at 28.) Nothing in this discussion

explains what, if any, parts of Plaintiffs testimony and reports to her doctors the AL) found

inconsistent with the evidence. Moreover, the Function Report completed by Plaintiff's

father—the only subjective evidence discussed by the ALJ—does not address Plaintiff's

headache impaitment at all. (See Tr. at 22-23.) Accordingly, as with Plaintiffs gastrointestinal

impairments, the administrative decision lacks any meaningful—or reviewable—explanation

of how the RFC accounts for the symptoms of Plaintiffs headache disorder. In particular,

when asked to define “the tolerance for absenteeism in the national economy,” the vocational

14

expert answeted that “no mote than once a month” would be allowed. (Tr. at 78.) While it

is entitely possible that the ALJ could identify reasons for rejecting Plaintiff's testimony that

she expetienced at least one debilitating headache a week, and therefore would not miss more

than one day of work per month due to het symptoms, the ALJ did not make any such findings

in het decision.

Ultimately, the AL]’s failute to acknowledge or address Plaintiffs hearing testimony at

all in her decision, let alone provide teasons for distegarding the limitations identified by

Plaintiff duting the heating, leaves the Court unable to determine the ALJ’s reasoning and

renders the ALJ’s decision unsupported by substantial evidence. ‘These are issues that should

be addressed and considered by the AL] in the first instance.

IT IS THEREFORE ORDERED that the Commissionet’s decision finding no

disability is REVERSED, and that the matter is REMANDED to the Commissioner under

sentence four of 42 U.S.C. § 405(g). The Commissioner is directed to remand the matter to

the ALJ for further consideration of Plaintiffs claim. Defendant’s Dispositive Brief [Doc.

#18] is DENIED, and Plaintiffs Motion for Judgment on the Pleadings [Doc. #16] is

GRANTTED to the extent set out herein. However, to the extent Plaintiff seeks an immediate

awatd of benefits, her Motion is DENIED.

This, the 11% day of March, 2024.

__/s/ Joi Elizabeth Peake __

United States Magistrate Judge

15

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