Falardo-Weller v. Kijakazi

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JANINE FALARDO-WELLER,

Plaintiff, CIVIL ACTION NO. 3:22-CV-01026

v.

(MEHALCHICK, M.J.)

KILOLO KIJAKAZI,

Defendant.

MEMORANDUM

This is an action brought under 42 U.S.C. § 405(g), seeking judicial review of the final

decision of the Commissioner of Social Security (hereinafter, “the Commissioner”) denying

Plaintiff Janine Falardo-Weller (“Falardo-Weller”)’s claims for disability insurance benefits

(“DIB”) under Title II of the Social Security Act.1 (Doc. 1). The parties have consented to

proceed before the undersigned United States Magistrate Judge pursuant to the provisions of

28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. (Doc. 11). For the

reasons expressed herein, and upon detailed consideration of the arguments raised by the

parties in their respective briefs, the Commissioner’s decision shall be VACATED.

I. BACKGROUND AND PROCEDURAL HISTORY

On June 2, 2015, Falardo-Weller filed an application for disability insurance benefits,

alleging disability beginning on October 26, 2014. (Doc. 13-2, at 18). Falardo-Weller’s claims

were initially denied by the Social Security Administration on October 8, 2015, prompting

Falardo-Weller’s request for a hearing, which was held before Administrative Law Judge

1 The Court granted Falardo-Weller’s motion to proceed in forma pauperis in a separate

order. (Doc. 4).

(“ALJ”) George C. Yatron on August 9, 2017. (Doc. 13-2, at 18). In a written opinion dated

November 22, 2017, the ALJ determined that Falardo-Weller was not disabled and, therefore,

not entitled to the benefits sought. (Doc. 13-2, at 15). Falardo-Weller appealed the decision

to the Appeals Counsel, who denied Falardo-Weller’s request for review on July 9, 2018.

(Doc. 13-2, at 2).

Thereafter, Falardo-Weller filed a complaint under 42 U.S.C. § 405(g) seeking judicial

review of the ALJ’s decision denying her claim for benefits. (Doc. 13-9, at 23). On May 9,

2020, United States Magistrate Judge Schwab issued a report and recommendation affirming

the Commissioner’s denial. (Doc. 13-9, at 27-45). On May 19, 2020, United States District

Judge Conner declined to adopt Judge Schwab’s recommendation, finding that the ALJ failed

to consider Falardo-Weller’s claims as to the severity and frequency of her migraine and

seizure episodes, and erroneously rejected Falardo-Weller’s subjective complaints without

providing a sufficient explanation. (Doc. 13-9, at 49-55). Therefore, Judge Conner vacated

the ALJ’s decision and remanded the matter to the Commissioner with instructions to

conduct a new administrative hearing, develop the record fully, and evaluate the evidence

appropriately in accordance with the Court’s accompanying memorandum. (Doc. 13-9, at

60).

On December 22, 2020, ALJ Margaret M. Gabell held a second hearing. (Doc. 13-8,

at 11). In a written opinion dated June 3, 2021, the ALJ again determined that Falardo-Weller

was not disabled and, therefore, not entitled to the benefits sought. (Doc. 13-8, at 8). Falardo-

Weller appealed the decision to the Appeals Counsel, who denied Falardo-Weller’s request

for review on June 9, 2022. (Doc. 13-8, at 2).

- 2 -

On June 29, 2022, Falardo-Weller initiated the instant action by filing a complaint.

(Doc. 1). The Commissioner responded on October 19, 2022, providing the requisite

transcripts from the disability proceedings. (Doc. 12; Doc. 13). The parties then filed their

respective briefs, with Falardo-Weller arguing one main error warrants reversal or remand.

(Doc. 16; Doc. 21).

II. STANDARD OF REVIEW

In order to receive benefits under Title II of the Social Security Act, a claimant must

demonstrate an “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 period of not less than

12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1509. To satisfy this requirement, a

claimant must have a severe physical or mental impairment2 that makes it impossible to do

his or her previous work or any other substantial gainful activity that exists in significant

numbers in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a).

Additionally, to be eligible to receive benefits under Title II of the Social Security Act, a

claimant must be insured for disability insurance benefits. 42 U.S.C. § 423(a); 20 C.F.R. §

404.131.

A. ADMINISTRATIVE REVIEW

In evaluating whether a claimant is disabled as defined in the Social Security Act, the

Commissioner follows a five-step sequential evaluation process. Hess v. Comm’r Soc. Sec., 931

2 A “physical or mental impairment” is defined as an impairment resulting from

“anatomical, physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

- 3 -

F.3d 198, 200-01 (3d Cir. 2019); 20 C.F.R. § 404.1520(a). Under this process, the

Commissioner must determine, in sequence: (1) whether the claimant is engaged in

substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the

claimant’s impairment meets or equals a listed impairment;3 (4) whether the claimant is able

to do past relevant work, considering his or her residual functional capacity (“RFC”); and (5)

whether the claimant is able to do any other work that exists in significant numbers in the

national economy, considering his or her RFC, age, education, and work experience. 20

C.F.R. § 404.1520(a). The claimant bears the initial burden of demonstrating a medically

determinable impairment that prevents him or her from doing past relevant work. 20 C.F.R.

§ 404.1512(a). Once the claimant has established at step four that he or she cannot do past

relevant work, the burden then shifts to the Commissioner at step five to show that jobs exist

in significant numbers in the national economy that the claimant could perform that are

consistent with his or her RFC, age, education, and past work experience. 20 C.F.R. §

404.1512(f).

B. JUDICIAL REVIEW

In reviewing the Commissioner’s final decision denying a claimant’s application for

benefits, the Court’s review is limited to determining whether the findings of the final

decision-maker are supported by substantial evidence in the record. See 42 U.S.C. § 1383(c)(3)

(incorporating 42 U.S.C. § 405(g) by reference); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198,

200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. Mar. 28, 2012).

3 An extensive list of impairments that warrant a finding of disability based solely on

medical criteria, without considering vocational criteria, is set forth at 20 C.F.R. Part 404,

Subpart P, Appendix 1 (effective June 12, 2015, through July 19, 2015).

- 4 -

Substantial evidence “does not mean a large or considerable amount of evidence, but rather

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

conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotations omitted).

Substantial evidence is less than a preponderance of the evidence but more than a mere

scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not

substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict

created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). In an adequately

developed factual record, however, substantial evidence may be “something less than the

weight of the evidence, and the possibility of drawing two inconsistent conclusions from the

evidence does not prevent [the ALJ’s decision] from being supported by substantial evidence.”

Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 (1966). “In determining if the

Commissioner’s decision is supported by substantial evidence the court must scrutinize the

record as a whole.” Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. Nov. 3, 2003).

The question before the Court, therefore, is not whether Falardo-Weller is disabled,

but whether the Commissioner’s finding that Falardo-Weller is not disabled is supported by

substantial evidence and was reached based upon a correct application of the relevant law.

See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014)

(“[I]t has been held that an ALJ’s errors of law denote a lack of substantial evidence.”); Burton

v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) (“The [Commissioner]’s determination

as to the status of a claim requires the correct application of the law to the facts.”); see also

Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal

matters is plenary); Ficca, 901 F. Supp. 2d at 536 (“[T]he court has plenary review of all legal

issues decided by the Commissioner.”).

- 5 -

III. THE ALJ’S DECISION

In a decision dated June 3, 2021, the ALJ determined Falardo-Weller “was not under

a disability, as defined in the Social Security Act, at any time from October 26, 2014, the

alleged onset date, through June 30, 2017, the date last insured.” (Doc. 13-8, at 31). The ALJ

reached this conclusion after proceeding through the five-step sequential analysis required by

the Social Security Act. See 20 C.F.R. § 404.1520. At the onset, the ALJ determined that

Falardo-Weller last met the insured status requirements of the Social Security Act on June

30, 2017. (Doc. 13-8, at 13).

A. STEP ONE

At step one, an ALJ must determine whether the claimant is engaging in substantial

gainful activity (“SGA”). 20 C.F.R § 404.1520(a)(4)(i). If a claimant is engaging in SGA, the

Regulations deem them not disabled, regardless of age, education, or work experience. 20

C.F.R. § 404.1520(b). SGA is defined as work activity—requiring significant physical or

mental activity—resulting in pay or profit. 20 C.F.R. § 404.1572. In making this

determination, the ALJ must consider only the earnings of the claimant. 20 C.F.R. §

404.1574. Here, the ALJ determined that Falardo-Weller “did not engage in substantial

gainful activity during the period from her alleged onset date of October 26, 2014, through

her date last insured of June 30, 2017.” (Doc. 13-8, at 14).

B. STEP TWO

At step two, the ALJ must determine whether the claimant has a medically

determinable impairment that is severe or a combination of impairments that are severe. 20

C.F.R. § 404.1520(a)(4)(ii). If the ALJ determines that a claimant does not have an

“impairment or combination of impairments which significantly limits [their] physical or

- 6 -

mental ability to do basic work activities, [the ALJ] will find that [the claimant] does not have

a severe impairment and [is], therefore not disabled.” 20 C.F.R. § 404.1520(c). If a claimant

establishes a severe impairment or combination of impairments, the analysis continues to the

third step. Here, the ALJ found that Negron had the following medically determinable severe

impairments: POTS, gastroparesis; spine disorder; migraines; tachycardia; mitral valve

prolapse; syncope; seizures; Graves’ disease; hypertension; GERD; and adjustment disorder.

(Doc. 13-8, at 14). In addition, the ALJ found that Negron had the following non-severe

impairments: diminished hearing and asthma. (Doc. 13-8, at 14).

C. STEP THREE

At step three, the ALJ must determine whether the severe impairment or combination

of impairments meets or equals the medical equivalent of an impairment listed in the version

of 20 C.F.R. § Pt. 404, Subpt. P, App. 1 that was in effect on the date of the ALJ’s decision.

20 C.F.R. §§ 404.1520(a)(4)(iii); 404.1525; 404.1526. The sections in this appendix are

commonly referred to as “listings.” If the ALJ determines that the claimant’s impairments

meet these listings, then the claimant is considered disabled, otherwise, the ALJ must proceed

to and analyze the fourth step of the sequential analysis. 20 C.F.R. § 404.1520(d). Here, the

ALJ determined that none of Falardo-Weller’s impairments, considered individually or in

combination, met or equaled a Listing. (Doc. 13-8, at 14-15). Specifically, the ALJ considered

Listings 1.15 (disorders of the skeletal spine resulting in compromise of a nerve root(s)); 4.05

(recurrent arrhythmias); 11.02 (epilepsy), 5.00 (digestive system); and 12.15 (trauma and

stressor-related disorders). (Doc. 13-8, at 14-18)

D. RESIDUAL FUNCTIONAL CAPACITY

- 7 -

Between steps three and four, the ALJ determines the claimant’s RFC, crafted upon

consideration of the medical evidence provided. At this intermediate step, the ALJ considers

all claimant’s symptoms and “the extent to which [they] can reasonably be accepted as

consistent with the objective medical evidence and other evidence.” 20 C.F.R. §§ 404.1529(a).

This involves a two-step inquiry according to which the ALJ must (1) determine whether an

underlying medically determinable mental impairment or impairments could reasonably be

expected to produce the claimant’s symptoms; and, if so, (2) evaluate the intensity,

persistence, and limiting effects of the claimant’s symptoms to determine the extent to which

they limit the claimant’s functional limitations. See 20 C.F.R. § 404.1529(b)–(c).

Falardo-Weller alleged that her impairments caused the following symptoms:

migraines, blackouts, falling, memory loss, nausea, leg swelling, blurred vision, dizziness, low

blood pressure, seizures, chest pain, and heart fluttering. (Doc. 13-8, at 19). The ALJ found

that while Falardo-Weller’s medically determinable impairments could reasonably be

expected to cause the alleged symptoms, Falardo-Weller’s statements about the intensity,

persistence, and the limiting effects of the symptoms were not entirely consistent with the

medical evidence and other evidence in the record. (Doc. 13-8, at 21). The ALJ then went on

to detail Falardo-Weller’s medical records and treatment history, activities of daily living, and

medical opinion evidence. (Doc. 13-14, at 28-36). After weighing and considering the

evidence of record, the ALJ determined that Falardo-Weller had the RFC “to perform light

work as defined in 20 CFR 404.1567(b),” with additional limitations:4

4 The limitation to “light work” “involves lifting no more than 20 pounds at a time

with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §

404.1567(b). A job will fall under this category if it requires lifting little weight, yet a good

- 8 -

occasional postural activities; no ladders, ropes or scaffolds; no exposure to

unprotected heights; occasional climbing ramps and stairs; no kneeling or

crawling; avoid temperature extremes; occasional exposure to dust, odors,

wetness, gases, fumes and poorly ventilated areas; avoid driving or operating

moving machinery. Unskilled work, involving simple, routine, tasks, making

simple decisions, tolerating only occasional changes in the workplace, no limits

on interacting with coworkers, supervisors or the public. Alternate between

standing/sitting every 30-60 minutes, would need a 10-minute change of

position, but would be able to remain on task.

(Doc. 13-8, at 18-19).

E. STEP FOUR

Step four requires the ALJ to determine whether the claimant had, during the relevant

period, the RFC to perform the requirements of his or her past relevant work regardless of the

claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(iv). Past relevant

work is work that the claimant has done within the past 15 years, that was substantial gainful

activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. §

404.1560(b). The ALJ considers whether the claimant retains the capacity to perform the

particular functional demands and job duties of the past relevant work, either as the claimant

actually performed it or as ordinarily required by employers throughout the national

economy. Garibay v. Comm’r of Soc. Sec., 336 F. App’x 152, 158 (3d Cir. 2009) (quoting SSR

82–6). “If the claimant can perform [her] past relevant work despite his limitations, [she] is

not disabled.” Hess, 931 F.3d at 202 (citing 20 C.F.R. § 404.1520(a)(4)(iv)).

Here, based on the testimony adduced from a vocational expert at Falardo-Weller’s

administrative hearing, the ALJ determined that Falardo-Weller is unable to perform her past

deal of walking or standing, or mostly sitting with some pushing and pulling of arm or leg

controls. 20 C.F.R. § 404.1567(b). An individual considered capable of performing a full range

of light work must be able to do substantially all of these activities. 20 C.F.R. § 404.1567(b).

- 9 -

relevant work as a grocery clerk and stock clerk. (Doc. 13-8, at 29). Thus, the ALJ proceeded

to step five of the sequential analysis.

F. STEP FIVE

At step five of the sequential analysis process, an ALJ considers the claimant’s age,

education, and work experience to see if a claimant can make the adjustment to other work.

20 C.F.R. § 404.1520(a)(4)(v). These factors are not considered when evaluating a claimant’s

ability to perform past relevant work. 20 C.F.R. § 404.1560(b)(3). If a claimant has the ability

to make an adjustment to other work, they will not be considered disabled. 20 C.F.R. §

404.1520(a)(4)(v). Here, the ALJ made vocational determinations that Falardo-Weller was

30 years old on the alleged onset date, defined as a younger individual age 18-49 by the

Regulations. (Doc. 13-8, at 29); see 20 C.F.R. § 404.1563. The ALJ also noted that Falardo-

Weller “has at least a high school education” as considered in 20 C.F.R. § 404.1564. (Doc.

13-8, at 29). The ALJ determined that “there are other jobs that exist in significant numbers

in the national economy that the claimant also can perform, considering [Falardo-Weller]’s

age, education, work experience, and [RFC].” (Doc. 13-8, at 29); see 20 C.F.R. § 404.1569;

404.1569(a). The ALJ specifically identified occupations of bench assembler, cashier, and

office helper, all with open positions ranging from 500,000 to 1,225,000 nationally. (Doc. 13-

8, at 30). Accordingly, the ALJ determined that Falardo-Weller is not disabled and denied

her applications for benefits. (Doc. 13-8, at 31).

IV. DISCUSSION

On appeal, Falardo-Weller contends that substantial evidence does not support the

ALJ’s step three analysis because she did not consider Falardo-Weller’s seizure disorder

under Listing 12.07 and incorrectly determined that there was no medical evidence that

- 10 -

Falardo-Weller’s migraine headache disorder could satisfy Listing 11.02. (Doc. 16, at 9-14).

In response, the Commissioner argues the ALJ appropriately concluded that Falardo-Weller’s

impairments did not meet or medically equal a listed impairment. (Doc. 21, at 25). Thus, the

Commissioner contends substantial evidence supports the ALJ’s decision. (Doc. 21, at 26-

32).

At step three of the disability analysis, the ALJ considers whether the combination of

the claimant’s medically determinable impairments meets or is equal to one of the

impairments listed in 20 C.F.R., Pt. 404, Subpt. P, Appx. 1 (“listings”). 20 C.F.R. §

404.1520(a)(4)(iii). If a claimant has an impairment that meets the twelve-month duration

requirement and meets or equals all the criteria of a listing, the claimant is found disabled. 20

C.F.R. § 404.1520(a)(4)(iii).

However, to qualify for benefits by showing that an impairment (or combination of

impairments) is equivalent to a listed impairment, the claimant bears the burden of presenting

“medical findings equal in severity to all the criteria for the one most similar listed

impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in original; citations

omitted). An impairment, no matter how severe, that meets or equals only some of the criteria

for a listed impairment is not sufficient. Sullivan, 493 U.S. at 531. Here, the ALJ found that

Falardo-Weller does not have an impairment or combination of impairments that meets or

medically equals any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix

1. (Doc. 13-8, at 14).

A. THE ALJ ERRED IN EVALUATING FALARDO-WELLER’S CONDITION UNDER

LISTING 11.02 AT STEP THREE.

Falardo-Weller asserts that remand is warranted because substantial evidence does not

- 11 -

support the ALJ’s finding that there was no documentation to show that plaintiff was unable

to function, or had significantly reduced functioning during a headache, or that the headaches

did not occur with such frequency to equal Listing 11.02. (Doc. 16, at 11-14). Falardo-Weller

contends that the ALJ’s analysis of her headaches under Listing 11.02 is wanting and flawed

because: (1) the ALJ’s mention of medication changes is not a probative consideration of

whether the listing is satisfied; (2) the ALJ’s reference to a normal EMG and normal gait with

intact reflexes and sensation not being indicative of a marked limitation in physical limitations

has nothing to do with the headache impairment; and (3) the evidence of record satisfies

Listing 11.02 as it contains documentation of a 15-year history of headaches that worsened

over time in terms of frequency and severity. (Doc. 16, at 11-14).

Conversely, the Commissioner contends that the ALJ carefully considered whether

Falardo-Weller’s condition met or medically equaled Listing 11.02 and addressed why her

headaches did not satisfy this listing. (Doc. 21, at 26). The Commissioner argues that the ALJ

had a medical expert review the evidence, who specifically opined that Falardo-Weller did

not satisfy the criteria of any listing, including listing 11.02. (Doc. 21, at 26). The

Commissioner also asserts that the record reflects that Falardo-Weller had been prescribed

Topamax for migraine prevention and treatment throughout the relevant period, and her

physicians document that this treatment was beneficial. (Doc. 21, at 27-28).

As described in SSR 19-4p, migraines are included among the category of “primary

headache disorders,” which means they “occur independently and are not caused by another

medical condition.” SSR 19-4p, 2019 WL 4169635, at *3. The medical community diagnoses

migraines and other primary headaches “only after excluding alternative medical and

psychiatric causes of a person’s symptoms.” SSR 19-4p, 2019 WL 4169635, at *4. “Migraines

- 12 -

are vascular headaches involving throbbing and pulsating pain caused by the activation of

nerve fibers that reside within the wall of brain blood vessels traveling within the meninges

(the three membranes covering the brain and spinal cord).” SSR 19-4p, 2019 WL 4169635, at

*3.

SSR 19-4p explains how primary headache disorders, like migraines, are evaluated at

step three. While a primary headache disorder is not a listed impairment, it may, “alone or in

combination with another impairment(s), medically equal[ ] a listing.” SSR 19-4p, 2019 WL

4169635, at *7. The “most closely analogous listed impairment” for a primary headache

disorder is found in Listing 11.02, addressing epilepsy. SSR 19-4p, 2019 WL 4169635, at *7.

“While uncommon, a person with a primary headache disorder may exhibit equivalent signs

and limitations to those detailed in listing 11.02 (paragraph B or D for dyscognitive seizures),”

which may result in a finding that the claimant’s primary headache disorder “medically equals

the listing.” SSR 19-4p, 2019 WL 4169635, at *7. Thus, an ALJ should look to Listings 11.02B

and 11.02D in assessing whether a claimant’s migraine headache impairment medically

equals a listing.

Listing 11.02B describes dyscognitive seizures “occurring at least once a week for at

least 3 consecutive months . . . despite adherence to prescribed treatment.” 20 C.F.R. Part

404, Subpart P, App.1, § 11.02B (internal citations omitted). In deciding whether a claimant’s

migraines are equal in severity and duration to the criteria in 11.02B, an ALJ may also

consider the following additional factors:

[a] detailed description from an [acceptable medical source] of a typical

headache event, including all associated phenomena (for example,

premonitory symptoms, aura, duration, intensity, and accompanying

symptoms); the frequency of headache events; adherence to prescribed

treatment; side effects of treatment (for example, many medications used for

- 13 -

treating a primary headache disorder can produce drowsiness, confusion, or

inattention); and limitations in functioning that may be associated with the

primary headache disorder or effects of its treatment, such as interference with

activity during the day (for example, the need for a darkened and quiet room,

having to lie down without moving, a sleep disturbance that affects daytime

activities, or other related needs and limitations).

SSR 19-4p, 2019 WL 4169635, at *7.

Listing 11.02D requires seizures “occurring at least once every 2 weeks for at least 3

consecutive months . . . despite adherence to prescribed treatment,” along with “a marked

limitation in one of the following”:

1. Physical functioning; or

2. Understanding, remembering, or applying information; or

3. Interacting with others; or

4. Concentrating, persisting, or maintaining pace; or

5. Adapting or managing oneself.

20 C.F.R. Part 404, Subpart P, App.1, § 11.02D (internal citations omitted).

In evaluating whether a claimant’s migraine impairment equals the criteria in Listing

11.02D, the ALJ may also consider “the same factors” considered for Listing 11.02B. SSR

19-4p, 2019 WL 4169635, at *7.

In assessing whether a claimant has met or equaled a listed impairment, the ALJ must

provide an explanation of his or her reasoning which is sufficient to permit a court to engage

in a meaningful judicial review. See Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119-

20 (3d Cir. 2000). “However, an ALJ need not ‘use particular language or adhere to a

particular format in conducting his analysis.’” Kulbacki v. Colvin, Civ. No. 15-297, 2016 WL

- 14 -

2609984, at *6 (W.D. Pa. May 6, 2016) (quoting Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir.

2004)). Here, regarding Falardo-Weller’s migraine headache disorder, the ALJ stated:

[Falardo-Weller] does not meet the requirements of listing 11.02 as the record

fails to establish evidence of epilepsy, documented by a detailed description of

a typical seizure characterized by one of the following: (A) generalized tonic-

clonic seizures, occurring at least once a month for at least 3 consecutive

months despite adherence to prescribed treatment; or (B) dyscognitive seizures

occurring at least once a week for at least 3 consecutive months despite

adherence to prescribed treatment, or (C) generalized tonic-clonic seizures,

occurring at least once every 2 months for at least 4 consecutive months despite

adherence to prescribed treatment and a marked limitation in (1) physical

functioning, (2) understanding, remembering, or applying information, (3)

interacting with others (4) concentrating, persisting, or maintaining pace, or (5)

adapting or managing oneself; or (D) dyscognitive seizures occurring at least

once every 2 weeks for at least 3 consecutive months despite adherence to

prescribed treatment and a marked limitation in 1) physical functioning, (2)

understanding, remembering, or applying information, (3) interacting with

others (4) concentrating, persisting, or maintaining pace, or (5) adapting or

managing oneself. The record reflects [Falardo-Weller] had numerous physical

impairments as suffered from migraine headaches as well as syncope. Despite

reporting up to four seizures per week, some with loss of consciousness, others

with loss of bladder and bowel control and shaking, [Falardo-Weller]’s

neurological examinations have been noted as more consistent with

nonepileptic spells (Exhibit 22F). [Falardo-Weller]’s MRI imaging was noted

as consistent with migraines (Exhibit 41F). An EEG was noted as normal,

although it captured multiple clinical events, some involved facial twitching

and others involved burning smell, staring and unresponsiveness. It was felt this

was consistent with psychogenic nonepileptic events (Exhibit 22F). [Falardo-

Weller] was prescribed Topamax for migraine and seizure control. Physical

examinations have shown [Falardo-Weller] to have some decreased strength,

nevertheless, EMG testing of the upper extremities were within normal limits

and the claimant has maintained a normal gait, with intact reflexes and

sensation, not indicative of marked limitations in physical functioning. The

record also indicates no more than moderate limitations in mental functioning.

The evidence does not support the severity of listing 11.02.

The undersigned notes there is no Listing that specifically addresses migraines;

however, the undersigned has considered the effects of migraines under listing

11.02 for epilepsy as instructed in SSR 19-4p. This guidance indicates a primary

headache disorder, alone or in combination with another impairment, may

medically equal listing 11.02, which is the most closely analogous listing for a

primary headache disorder. SSR 19-4p advises considering parts B and D for

dyscognitive seizures. Listing 11.02B requires dyscognitive seizures occurring

- 15 -

at least once a week for at least 3 consecutive months despite adherence to

prescribed treatment. To evaluate whether a primary headache disorder is equal

in severity and duration to the criteria in 11.02B, we consider: a detailed

description from an acceptable medical source of a typical headache event,

including all associated phenomena; the frequency of headache events;

adherence to prescribed treatment; side effects of treatment; and limitations in

functioning that may be associated with the primary headache disorder or

effects of its treatment, such as interference with activity during the day (for

example, the need for a darkened and quiet room, having to lie down without

moving, a sleep disturbance that affects daytime activities, or other related

needs and limitations). Paragraph D of listing 11.02 requires dyscognitive

seizures occurring at least once every 2 weeks for at least 3 consecutive months

despite adherence to prescribed treatment, and marked limitation in one area

of functioning. To evaluate whether a primary headache disorder is equal in

severity and duration to the criteria in 11.02D, we consider the same factors we

consider for 11.02B and we also consider whether the overall effects of the

primary headache disorder on functioning results in marked limitation in:

physical functioning; understanding, remembering, or applying information;

interacting with others; concentrating, persisting, or maintaining pace; or

adapting or managing oneself. The evidence does not support the severity of

listing 11.02. An MRI showed white matter changes which could be seen in

migraines (Exhibit 41F). A December 2016 MRA of the brain was normal

(Exhibit 50F). Despite testimony of 8-10 migraines per week and reports to

treating providers of as many as 2-4 migraines per week, [Falardo-Weller] has

been maintained on Topamax, without the need for a switch in medication.

Further, physical examinations have shown the claimant to have some

decreased strength, nevertheless, EMG testing of the upper extremities were

within normal limits and [Falardo-Weller] has maintained a normal gait, with

intact reflexes and sensation, not indicative of marked limitations in physical

functioning. The record also indicates no more than moderate limitations in

mental functioning. Therefore, the preponderance of the evidence does not

support medical equivalence of Listing 11.02.

(Doc. 13-8, at 15-17).

Upon consideration of the ALJ’s decision, the Court finds the ALJ’s analysis to be

deficient. Because the ALJ’s analysis did not individually evaluate any sections of Listing

11.02, the ALJ’s decision prevents the Court from conducting a meaningful, albeit deferential,

review. Further, the Court finds that there is evidence of record to suggest Falardo-Weller

may meet the Listing 11.0 requirements. For example, as the ALJ notes, Falardo-Weller

- 16 -

reported suffering from 8-10 migraines per week and medical treatment records reported

many as 2-4 migraines per week. (Doc. 13-8, at 16). Thus, there can be little doubt that

Falardo-Weller would meet the frequency requirement of Listing 11.02B: i.e., migraine

headaches “occurring at least once a week for at least 3 consecutive months.” See 20 C.F.R.

Part 404, Subpart P, App.1, § 11.02B. The Commissioner does not contend to the contrary.

(Doc. 21). Falardo-Weller also reported that her migraines are associated with nausea and

sensitivity to light, and that she experiences pain as an 8/10 on the visual analog scale. (Doc.

13-2, at 48; Doc. 13-7, at 472-73, 500-01, 964-65). There is no evidence indicating that

Falardo-Weller was noncompliant with the treatment requirement, and she reported that her

medications caused side effects of dizziness, nausea, and vomiting. (Doc. 13-2, at 47).

Additionally, the ALJ’s citation that the Falardo-Weller has found Topamax to be beneficial

does not cure the problem as “a meaningful explanation of how an ALJ resolves contradictory

evidence requires that the ALJ engage and discuss the contradictory evidence and explain

why it is overcome by evidence that supports the ALJ’s conclusion.” Brown v. Kijakazi, No.

20-CV-05391-RAL, 2021 WL 5356802, at *6 (E.D. Pa. Nov. 17, 2021). While this evidence

on its own may not be sufficient for a finding of significantly reduced functioning, the ALJ

must explain why this evidence does not undermine his finding. See Brown, 2021 WL 5356802

(remanding decision where medical record undermined ALJ’s assertion that plaintiff does not

experience significantly reduced functioning during a headache and ALJ failed to address

contradictory evidence).

Therefore, the Court finds that because the record reflects evidence that would tend to

support application of Listing 11.02, this case should be remanded. See Tyson v. Kijakazi, No.

1:21-CV-855, 2022 WL 3975002, at *15 (M.D. Pa. July 25, 2022) (“Because the ALJ did not

- 17 -

make findings needed to determine if [plaintiff] satisfied the criteria of Listing 11.02B, and

because the record reflects evidence that would tend to support application of that listing, this

case should be remanded”) (citing Corinne C. v. Comm’r of Soc. Sec., No. 1:20-CV-1034, 2022

WL 1590818, at *17-20 (S.D. Ohio May 19, 2022) (remanding decision where ALJ did not

mention Listing 11.02 and the “record evidence . . . strongly suggests plaintiff’s migraine

impairment may equaled listing 11.02B”)).

B. THE COURT DECLINES TO ADDRESS FALARDO-WELLER’S REMAINING

ARGUMENTS.

Because the Court has vacated and remanded the decision of the Commissioner for

further consideration, concluding that the ALJ’s step three evaluation of Listing 11.02 is not

supported by substantial evidence, the Court declines to address Falardo-Weller’s remaining

arguments. “A remand may produce different results on these claims, making discussion of

them moot.” Burns v. Colvin, 156 F.Supp.3d 579, 598 (M.D. Pa. Jan. 13, 2016). The Court’s

evaluation of Falardo-Weller’s additional contentions would be futile given that the ALJ’s

reconsideration of whether Falardo-Weller’s epilepsy and migraine headaches satisfy the

requirements of Listing 11.02, in combination with her other impairments, may yield a

different result.

V. REMEDY

As a final matter, the Court addresses whether this case should be remanded to the

Commissioner for further administrative proceedings or whether reversal and an award of

benefits is appropriate. The Court has authority to affirm, modify or reverse the

Commissioner’s decision “with or without remanding the case for rehearing.” 42 U.S.C. §

405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100–01 (1991). However, the Third Circuit has

- 18 -

advised that benefits should only be awarded where “the administrative record of the case has

been fully developed and when substantial evidence in the record as a whole indicates that

the claimant is disabled and entitled to benefits.” Morales v. Apfel, 225 F.3d 310, 320 (3d Cir.

2000); see e.g. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“[T]he proper course,

except in rare circumstances, is to remand to the agency for additional investigation or

explanation.”). Here, the appropriate measure is to remand for further consideration on the

issue of whether Falardo-Weller meets the medical equivalence of Listing 11.02. The analysis

on remand may impact, and thus include, further consideration of other issues raised by

Falardo-Weller on this appeal. Upon remand, the ALJ is instructed to consider and make

specific findings as to all relevant probative medical evidence.

VI. CONCLUSION

Based on the foregoing, the Commissioner’s decision to deny Falardo-Weller’s

disability benefits is VACATED, and the case is REMANDED to the Commissioner

pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with this

Memorandum Opinion. Further, the Clerk of Court is directed to CLOSE this case.

An appropriate Order follows.

Dated: September 18, 2023 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

Chief United States Magistrate Judge

- 19 -