Shields v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MARCEEIA S.,1

Plaintiff,

Case No. 3:21-cv-0095

v. Magistrate Judge Norah McCann King

COMMISSIONER OF SOCIAL SECURITY,2

Defendant.

OPINION AND ORDER

This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,

as amended, 42 U.S.C. § 405(g), regarding the applications of Plaintiff Marceeia S. for Disability

Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for

Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et

seq. Plaintiff appeals from the final decision of the Commissioner of Social Security denying

those applications. This matter is now before the Court, with the consent of the parties, see Joint

Consent of the Parties, ECF No. 5, on Plaintiff’s Statement of Errors, ECF No. 11, Defendant’s

Memorandum in Opposition, ECF No. 14, Plaintiff’s Reply, ECF No. 15, and the Certified

Administrative Record, ECF No. 10. After careful consideration of the entire record, the Court

decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil Procedure. For the

reasons that follow, the Court grants Plaintiff’s Statement of Errors, reverses the decision of the

Commissioner, and remands the matter to the Commissioner for further proceedings.

1 The Committee on Court Administration and Case Management of the Judicial Conference of the United States has

recommended that, due to significant privacy concerns in social security cases, federal courts should refer to

plaintiffs in such cases by only their first names and last initials. See also S.D. Ohio General Order 22-01.

2 Kilolo Kijakazi is the Acting Commissioner of Social Security. See Fed. R. Civ. P. 25(d).

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I. PROCEDURAL HISTORY

Plaintiff filed applications for disability insurance benefits and supplemental security

income on March 9, 2015, alleging that she has been disabled since February 9, 2015, based on

both physical and mental impairments. R. 231-37, 238-43.3 After a hearing held on May 21,

2018, R. 151-52, Administrative Law Judge (“ALJ”) Stuart Adkins issued a decision on July 18,

2018, concluding that Plaintiff was not disabled within the meaning of the Social Security Act at

any time from February 9, 2015, her alleged disability onset date, through July 18, 2018, the date

of that decision. R. 15-32. On Plaintiff’s appeal from that decision to this Court, S[.] v.

Commissioner, 3:19-cv-0317 (S.D. Ohio (Mar. 26, 2020), the Court granted the parties’ joint

motion to remand. Id. On remand, ALJ Adkins held a second hearing on September 16, 2020, at

which Plaintiff, who was again represented by counsel, testified, as did a vocational expert. R.

1558-87. In a decision dated December 23, 2020, ALJ Adkins concluded that Plaintiff was not

disabled prior to May 16, 2018, but had become disabled on that date and had continued to be

disabled through the date of the new decision. R. 1524-44.

Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On March

22, 2022, the case was reassigned to the undersigned. ECF No. 16. The matter is ripe for

disposition.

II. LEGAL STANDARD

A. Standard of Review

In reviewing applications for Social Security disability benefits, “[t]he Commissioner’s

conclusion will be affirmed absent a determination that the ALJ failed to apply the correct legal

3 References to pages as they appear in the Certified Administrative Record will be cited as “R. .” See S.D. Ohio

Civ.R. 8.1(d).

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standard or made fact findings unsupported by substantial evidence in the record.” Kyle v.

Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010); see also 42 U.S.C. § 405(g) (“The

findings of the Commissioner of Social Security as to any fact, if supported by substantial

evidence, shall be conclusive . . . .”). The United States Supreme Court has explained the

substantial evidence standard as follows:

Under the substantial-evidence standard, a court looks to an existing administrative

record and asks whether it contains sufficien[t] evidence to support the agency’s

factual determinations. And whatever the meaning of substantial in other contexts,

the threshold for such evidentiary sufficiency is not high. Substantial evidence, this

Court has said, is more than a mere scintilla. It means – and means only – such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.

Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations and quotation marks

omitted); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation and internal

quotations omitted). In addition, “‘[w]here substantial evidence supports the [Commissioner’s]

determination, it is conclusive, even if substantial evidence also supports the opposite

conclusion.’” Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020) (quoting Crum v.

Sullivan, 921 F.2d 642, 644 (6th Cir. 1990)); see also Blakley v. Comm’r of Soc. Sec., 581 F.3d

399, 406 (6th Cir. 2009) (“Therefore, if substantial evidence supports the ALJ's decision, this

Court defers to that finding ‘even if there is substantial evidence in the record that would have

supported an opposite conclusion.’”) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.

1997)).

“Yet, even if supported by substantial evidence, ‘a decision of the Commissioner will not

be upheld where the SSA fails to follow its own regulations and where that error prejudices a

claimant on the merits or deprives the claimant of a substantial right.’” Rabbers v. Comm’r Soc.

Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d

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742, 746 (6th Cir. 2007)). Moreover, an ALJ’s findings must not only enjoy substantial support

in the record but those findings must also be sufficiently articulated to permit meaningful review

of those findings. Bailey v. Comm’r of Soc. Sec., 174 F.3d 428 (Table), 1999 WL 96920, at *4

(6th Cir. Feb. 2, 1999) (The ALJ’s decision “must articulate with specificity reasons for the

findings and conclusions that he or she makes.”) (citing Hurst v. Sec’y of Health & Human

Servs., 753 F.2d 517, 519 (6th Cir. 1985)). See also SSR 82-62, 1982 WL 31386, at *4 (1982)

(“The rationale for a disability decision must be written so that a clear picture of the case can be

obtained.”).

B. Sequential Evaluation Process

The Social Security Act establishes a five-step sequential evaluation process for

determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §§

404.1520(a)(4), 416.920(a)(4). “The claimant bears the burden of proof through step four; at step

five, the burden shifts to the Commissioner.” Rabbers, 582 F.3d at 652 (citing Jones v. Comm’r

of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003)).

At step one, the ALJ determines whether the plaintiff is currently engaged in substantial

gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, then the inquiry ends because the

plaintiff is not disabled.

At step two, the ALJ decides whether the plaintiff has a “severe impairment” or

combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability

to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the plaintiff does not

have a severe impairment or combination of impairments, then the inquiry ends because the

plaintiff is not disabled. Otherwise, the ALJ proceeds to step three.

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At step three, the ALJ decides whether the plaintiff’s impairment or combination of

impairments “meets” or “medically equals” the severity of an impairment in the Listing of

Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §§

404.1520(d), 416.920(d). If so, then the plaintiff is presumed to be disabled if the impairment or

combination of impairments has lasted or is expected to last for a continuous period of at least 12

months. Id. at §§ 404.1509, 416.909. Otherwise, the ALJ proceeds to step four.

At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)

and determine whether the plaintiff can perform past relevant work. 20 C.F.R. §§ 404.1520(e),

(f), 416.920(e), (f). If the plaintiff can perform past relevant work, then the inquiry ends because

the plaintiff is not disabled. Otherwise, the ALJ proceeds to the final step.

At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,

age, education, and work experience, can perform other jobs that exist in significant numbers in

the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g). If the ALJ determines that the

plaintiff can do so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be

disabled if the impairment or combination of impairments has lasted or is expected to last for a

continuous period of at least twelve months.

III. ALJ DECISION AND APPELLATE ISSUES

The Plaintiff was 39 years old on her alleged disability onset date. R. 31. At step one, the

ALJ found that Plaintiff had not engaged in substantial gainful activity between February 9,

2015, her alleged disability onset date, and the date of the decision. R. 1528.

At step two, the ALJ found that Plaintiff suffered from the following severe impairments:

occipital neuralgia; migraines; plantar fasciitis; vertigo; fibromyalgia; arthritis; obesity; auto-

immune disorder; thoracic/cervical/lumbar degenerative disc disease; pseudoseizures; conversion

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syndrome; and depression. R. 1528. The ALJ also found that the following diagnosed

impairments were not severe: anemia, vitamin D deficiency, acne, eczema, scarring alopecia,

thyrotoxicosis, and allergies. R. 1530.

At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of

impairments that met or medically equaled the severity of any Listing. R. 1535.

At step four, the ALJ found that, prior to May 16, 2018, Plaintiff had the following RFC:

After careful consideration of the entire record, the undersigned finds that prior to

May 16, 2018, the date the claimant became disabled, the claimant had the residual

functional capacity to perform light work as defined in 20 CFR 404.1567(b) and

416.967(b) subject to the following limitations: (1) never climbing ladders, ropes,

or scaffolds; (2) frequently climbing ramps and stairs, balancing, stooping,

kneeling, crouching, and crawling; (3) avoid unprotected heights and dangerous

machinery; (4) performing simple, routine tasks; (5) no work at a production rate

pace; (6) occasional interaction with supervisors, coworkers and the general public;

and (7) occasional changes to a routine work setting defined as 1-2 per week.

R. 1537. The ALJ also found that this RFC did not permit the performance of Plaintiff’s past

relevant work as a kitchen helper and caretaker. R. 1541.

At step five and relying on the testimony of the vocational expert, the ALJ found that,

from Plaintiff’s alleged disability onset date through May 16, 2018, a significant number of

jobs—i.e., jobs as a housekeeper, merchandise marker, and routing clerk—existed in the national

economy and could be performed by Plaintiff. R. 1542.

However, the ALJ then found that, beginning on May 16, 2018, Plaintiff’s RFC also

included the restriction that she “would be absent 3 days per month.” R. 1543. Again relying on

the testimony of the vocational expert, the ALJ found that, with that additional limitation, there

would be no jobs that exist in significant numbers in the national economy that Plaintiff could

perform. R. 1543.

The ALJ therefore concluded that Plaintiff was not disabled within the meaning of the

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Social Security Act from February 9, 2015, her alleged disability onset date, until May 16, 2018,

but that she became disabled on May 16, 2018, and continued to be disabled through the date of

the ALJ’s decision. R. 1544.

Plaintiff disagrees with the ALJ’s findings and conclusions regarding the period prior to

May 16, 2018. She contends that the ALJ erred in his evaluation of the medical opinions of

record, in his determination of Plaintiff’s RFC for the period prior to May 16, 2018, and in his

finding that Plaintiff was not disabled prior to May 16, 2018. Plaintiff’s Statement of Errors,

ECF No. 11; Plaintiff’s Reply Brief, ECF No. 15. She asks that the decision of the Commissioner

be reversed and remanded with directions for the granting of benefits. Id. The Acting

Commissioner takes the position that her decision regarding that period should be affirmed

because the ALJ’s decision in that regard correctly applied the governing legal standards,

reflected consideration of the entire record, and was supported by sufficient explanation and

substantial evidence. Defendant’s Brief, ECF No. 14.

IV. RELEVANT EVIDENCE

As the extensive administrative record—which consists of almost 3,000 pages—

documents, Plaintiff has been treated over the years for a number of conditions.

On May 28, 2015, Victoria Brookshire, C.N.P., Plaintiff’s treating medical provider

during the period at issue in this case, completed a Basic Medical form at the request of the

Department of Job and Family Services, R, 341-42, in which she indicated that she has treated

Plaintiff for fatigue, dizziness, and pain—conditions that “flare for a few days at a time,

unpredictably.” R. 341. According to Nurse Brookshire, Plaintiff can lift and carry up to five

pounds only occasionally and is “markedly limited” in her abilities to push/pull, bend, reach,

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handle, and engage in repetitive foot movements. R. 342. “On days that she is having symptoms

[she has] very limited ability to move around, grip, lift, stand, walk. Id.

In May 2015, Amita Oza, M.D., performed a consultative physical examination of

Plaintiff at the request of the state agency, R. 329-35, and reported that her examination “was

entirely within normal limits.” R. 330. According to Dr. Oza, Plaintiff “has probably

fibromyalgia or psychiatric problem.” Id.

Gordon Harris, Ph.D., conducted a consultative psychological examination of Plaintiff on

behalf of the state agency on June 10, 2015. R. 344. Plaintiff presented with claims of physical

and psychological impairments “which fit no pattern.” R. 348. Dr. Harris noted that Plaintiff’s

affect was bright and she exhibited no difficulty with her memory. Id. Dr. Harris noted no

difficulty in understanding, remembering, or carrying out instructions. Id. Plaintiff did not

exhibit difficulties in maintaining attention or concentration. Id. Dr. Harris diagnosed “Factious

[sic] Disorder” and opined that Plaintiff’s apparent personality disorder would likely cause

difficulty in a work environment, and would manifest “to great extent” when she is under

pressure in a work environment. Id.

Plaintiff has been referred by Nurse Brookshire to neurological consultations for “seizure

like spells and shaking.” R. 850. A January 2015 neurological evaluation by Alan K. Jacobs,

M.D., reflected complaints of dizziness, numbness, tremors, pain, headaches, weakness and

memory problems, R. 320, although Plaintiff’s neurological examination was unremarkable. Id.

In November 2015, Barbara L. Phillips, M.D., performed another neurological

consultation upon referral from Plaintiff’s treating provider. R. 845-58. Plaintiff complained of,

inter alia, headaches. R. 847. A CT scan of the brain was normal. R. 849. “[N]o abnormalities

of imaging [ ] support history of strokes and TIAs. Her symptoms are not consistent with

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epileptic seizures.” R. 849. At a follow-up examination in June 2016, Plaintiff did not complain

of headaches, R. 852, and Dr. Phillips again saw no evidence of underlying epilepsy. R. 854. An

evaluation of neuromuscular concerns was negative. R. 857.

Robert N. Basil, Psy.D., has provided psychological treatment to Plaintiff “on a regular

basis,” R. 921, since September 2014, R. 336, 920. See also R. 938 (Reporting that Plaintiff

meets with Dr. Basil one to three times per month “depending on symptoms”). On March 20,

2015, Dr. Basil reported to the state agency that Plaintiff’s functioning is “variable.” R. 336-37.

She is “anxious, paranoid at times, and she fights depression.” R. 336. In January 2017, Dr. Basil

characterized Plaintiff’s conditions as “very unusual.” R. 902. In February 2017, Dr. Basil

completed a mental impairment questionnaire, R. 938-45, in which he indicated that Plaintiff’s

symptoms “are complex and variable.” R. 939. “There are several possible diagnoses, and she

could have all of them. They include a rare form of narcolepsy, PTSD, disassociative [sic]

disorder and/or conversion disorder. She has a long history of working hard to support her deaf

son, so malingering is not present.” R. 939. Dr. Basil identified a number of signs and symptoms,

R. 938, and opined that Plaintiff has “extreme” limitations in her activities of daily living, and in

her abilities to perform activities within a schedule, maintain regular attendance, and be punctual

within customary tolerances. R. 940. Plaintiff has “marked” or “serious” limitations in most

other functional areas. R. 40-41.

On May 15, 2018, Dr. Basil completed a narrative psychological evaluation of Plaintiff,

including an extensive history, at the request of her counsel. R. 1446-57. Dr. Basil diagnosed a

mood disorder due to physical conditions, with depression, R. 1452. See also R. 1448 (Plaintiff’s

“medical conditions have had a psychological effect on her over the years.”), R. 1449 (“Her

physical symptoms have had psychological effects on her mood but also cognitively on her

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concentration, attending, and on her immediate and short term memory, and at times on her long

term memory retrieval.”).

Plaintiff was involved in a “minor” motor vehicle accident on May 16, 2018, R. 1468,

during which she “[d]id not hit head or loose [sic] consciousness,” but complained of facial

numbness. R. 1458, 1468. An MRI of the brain was normal, R. 1465, and an MRI and CT scan

of the cervical spine revealed degenerative changes. R. 1466, 1470. She was discharged with a

diagnosis of “[a]cute nonintractable headache, unspecified headache type.” R. 1492.

Plaintiff followed up the next day with Nurse Brookshire for complaints of headache and

associated nausea. R. 1510, 1512. Nurse Brookshire initially diagnosed strain of the neck muscle.

R. 1513. In December 2018, Plaintiff was referred to another neurological consult for increased

neuropathy symptoms in her hands and feet. R. 2001. That referral resulted in a diagnosis of

occipital neuralgia. See R. 1992.

Beginning in March 2019, Plaintiff has undergone injections for her left occipital

neuralgia. See, e.g., 1867, 2187. The injections “last[ ] about two months with good result.” Id.

During a December 2019 consultative neurological examination by Zelijka Chobanov,

M.D., Plaintiff complained of a “lifelong history of headaches.” R. 2042, 2045, 2053. “They are

bilateral frontotemporal pressure in nature although sometimes can involve the entire head.” R.

2042, 2045. Dr. Chobanov diagnosed intractable headaches, unspecified chronicity pattern,

unspecified headache type, and commented that Plaintiff “most likely has [ ] migraine headaches

complicated with neurological breakthrough symptoms.” R. 2045.

Plaintiff testified at the most recent administrative hearing that the pain from her occipital

neuralgia “comes and goes.” R. 1570. She described the pain caused by the condition as

“electrical sparks” that radiate from the back of her head. R. 1569. “Sometimes I can have it like

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four or five times a day and then I can go a few days and not have it and then it’ll, you know,

strike again.” R. 1570. Injections help for approximately 30 days. R. 1569. She also experiences

migraine headaches, which sometimes last for days, “at least 12 days a month.” R. 1571-72.

When she gets a headache, she covers her eyes and sits in a dark, quiet room. R. 1573.

The vocational expert testified that, if a claimant were absent three days per month,

“there would be no competitive jobs.” R. 1583.

V. DISCUSSION

Plaintiff contends, inter alia, that the ALJ’s determination that her disability arose

following the May 16, 2016, motor vehicle accident, and not as the result of her long-term

impairments, is not supported by substantial evidence and is arbitrary and unreasonable.

Plaintiff’s Statement of Errors, ECF No. 11, PageID# 3028; Plaintiff’s Reply, ECF No. 15,

PageID# 3059-10. This Court concludes that the ALJ failed to fully consider evidence relating

to Plaintiff’s history of headaches and the date of onset of her diagnosed migraines.

The ALJ found that Plaintiff became disabled on May 16, 2018, because of her occipital

neuralgia, increased neck pain, and headaches, which the ALJ attributed to the May 16, 2016, car

accident. R. 1543. Yet, the ALJ also found that Plaintiff has had the severe impairments of, inter

alia, “occipital neuralgia, [and] migraines” “[s]ince the alleged onset date of disability, February

9, 2015.” R. 1528. Moreover, the ALJ appears to have overlooked evidence of headaches during

the period prior to May 16, 2018. For example, during his January 2015 neurological

examination of Plaintiff, Dr. Jacobs noted complaints of headaches, R. 320, and Dr. Phillips also

noted Plaintiff’s complaint of headaches during her November 2015 neurological examination,

R. 847. Additionally, Plaintiff reported a “lifelong history of headaches” during a December

2019 consultative neurological examination by Dr. Chobanov, who opined that Plaintiff “most

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likely has [ ] migraine headaches complicated with neurological breakthrough symptoms.” R.

2042, 2045, 2053. Even assuming that Plaintiff’s occipital neuralgia arose only as a result of the

May 16, 2018, car accident, the diagnosis of that condition was not determinative of a diagnosis

of migraine headaches, nor was that diagnosis determinative of the date of onset of Plaintiff’s

migraines.

Under these circumstances, the Court concludes that the decision of the ALJ is not

supported by substantial evidence. The decision of the Commissioner must therefore be reversed.

VI. REMAND FOR FURTHER PROCEEDINGS

Plaintiff asks that the Court remand the matter to the Commissioner with directions for

the granting of benefits for the period from February 9, 2015, Plaintiff’s alleged disability onset

date, through May 16, 2018, the established date of disability. “If a court determines that

substantial evidence does not support the [Commissioner's] decision, the court can reverse the

decision and immediately award benefits only if all essential factual issues have been resolved

and the record adequately establishes a plaintiff's entitlement to benefits.” Faucher v. Sec'y of

Health and Human Servs., 17 F.3d 171, 176 (6th Cir.1994). Otherwise, the court should remand

to the Commissioner for further consideration.

Here, the Court cannot conclude that the record establishes Plaintiff’s entitlement to

benefits. Although the ALJ failed to properly consider evidence of headaches and the date of

onset of Plaintiff’s diagnosed migraines, the record does not clearly establish that Plaintiff is

entitled to benefits on that basis for the period prior to May 16, 2018. The Court will therefore

remand the action with directions for further consideration of that issue.

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WHEREUPON, the Court GRANTS Plaintiff’s Statement of Errors, ECF No. 11,

REVERSES the decision of the Commissioner, and REMANDS the matter to the

Commissioner for further proceedings.

The Clerk is DIRECTED to enter FINAL JUDGMENT pursuant to Sentence 4 of 42

U.S.C. § 405(g).

Date: February 27, 2023 s/Norah McCann King

NORAH McCANN KING

UNITED STATES MAGISTRATE JUDGE

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