The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
EDNA RENEA ESCOBAR, )
)
Plaintiff, )
) Case No: 3:21-cv-372
v. )
) Judge Christopher H. Steger
KILOLO KIJAKAZI, )
Acting Commissioner of Social Security )
Administration, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
I. Introduction
Plaintiff Edna Renea Escobar seeks judicial review under § 205(g) of the Social Security
Act (the "Act"), 42 U.S.C. § 405(g), from her denial of disability insurance benefits and
supplemental security income by the Commissioner of the Social Security Administration under
Titles II and XVI of the Act, 42 U.S.C. §§ 401-34, 1381-83f [See Doc. 1]. The parties consented
to the entry of final judgment by the undersigned United States Magistrate Judge, under 28 U.S.C.
§ 636(c), with an appeal to the Court of Appeals for the Sixth Circuit [Doc. 15].
For the reasons that follow, Plaintiff's Motion for Summary Judgment [Doc. 18] will be
GRANTED, the Commissioner's Motion for Summary Judgment [Doc. 21] will be DENIED, and
the Commissioner's decision will be REMANDED under Sentence Four of 42 U.S.C. § 405(g).
II. Procedural History
On February 27, 2018, Plaintiff applied for disability insurance benefits and supplemental
security income, alleging disability as of December 15, 2016. (Tr. 21). Plaintiff's claims were
denied initially as well as on reconsideration. Id. As a result, Plaintiff requested a hearing before
an administrative law judge. Id.
At a hearing that included Plaintiff's attorney on January 29, 2020, Administrative Law
Judge Jim Beeby (the "ALJ") heard testimony from Plaintiff and a vocational expert. (Tr. 21, 31).
Plaintiff’s counsel requested a physical consultative examination, which was granted. (Tr. 21). A
supplemental hearing was then held on January 29, 2020, at which the same ALJ again heard
testimony from Plaintiff and a vocational expert. Id. The ALJ then rendered his decision on
February 14, 2020, finding that Plaintiff was "not disabled" as defined by the Act. (Tr. 31).
Following the ALJ's decision, Plaintiff requested that the Appeals Council review the
denial; but that request was denied. (Tr. 1). Exhausting her administrative remedies, Plaintiff then
filed her Complaint [Doc. 1] on November 3, 2021, seeking judicial review of the Commissioner's
final decision under § 405(g). The parties filed competing dispositive motions, and this matter is
ripe for adjudication.
III. Findings by the ALJ
The ALJ made the following findings concerning Plaintiff's application for benefits:
1. The claimant meets the insured status requirements of the Social Security
Act through December 31, 2021.
2. The claimant has not engaged in substantial gainful activity since December
15, 2016, the alleged onset date (20 C.F.R. §§ 404.1571 et seq., 416.971 et
seq.).
3. The claimant has the following severe impairments: spine disorder, obesity,
asthma, bronchitis, migraine, and left knee disorder, status post surgeries (20
C.F.R. §§ 404.1520(c), 416.920(c)).
4. The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Pt. 404, Subpt. P, App. 11 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, 416.926).
1 Commonly referred to as, and hereinafter, "The Listings."
5. After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform sedentary work as defined in 20
C.F.R. §§ 404.1567(a) and 416.96(a). The claimant can lift and carry, push
and pull 10 pounds occasionally and 10 pounds frequently. With normal
breaks in an eight-hour day, she can sit for six hours, and stand and/or walk
for two hours. She requires the use of a cane to ambulate but not to balance,
and can use her free hand to lift and carry. She can never climb ladders,
ropes, or scaffolds; can occasionally climb ramps and stairs; can
occasionally balance, stoop, kneel, crouch, and crawl; can tolerate
occasional exposure to extreme cold, fumes, odors, dust, gases, poor
ventilation; and should avoid all exposure to dangerous hazards, such as
unprotected heights, and moving machinery.
6. The claimant is unable to perform any past relevant work (20 C.F.R. §§
404.1565, 416.965).
7. The claimant was born on July 30, 1972, and was 44 years old, which is
defined as a younger age 18-44, on the alleged disability onset date. The
claimant subsequently changed age category to a younger individual age 45-
49 (20 C.F.R. §§ 404.1563, 416.963).
8. The claimant has at least a high school education and is able to communicate
in English (20 C.F.R. §§ 404.1564, 416.964).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41, 20 C.F.R. §§ 404.1568, 416.968).
10. Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 C.F.R. §§ 404.1569,
404.1569(a), 416.969, 416.969(a)).
11. The claimant has not been under a disability, as defined by the Social
Security Act, from December 15, 2016, through the date of this decision (20
C.F.R. §§ 404.1520(g), 416.920(g)).
(Tr. at 24-31).
IV. Standard of Review
This case involves an application for disability insurance benefits ("DIB") and
supplemental security income ("SSI"). An individual qualifies for DIB if she: (1) is insured for
DIB; (2) has not reached the age of retirement; (3) has filed an application for DIB; and (4) is
disabled. 42 U.S.C. § 423(a)(1). An individual qualifies for SSI if she: (1) is aged, blind, or
disabled; and (2) has income and resources that do not exceed specific limits. 42 U.S.C. § 1382(a).
The definition of disabled is the same for DIB and SSI. Compare 42 U.S.C. § 423(d) with §
1382(a)(3).
The determination of disability is an administrative decision. To establish a disability, a
plaintiff must show that she is unable to engage in any substantial gainful activity due to the
existence of a medically determinable physical or mental impairment that can be expected to result
in death or that has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. § 423(d)(1)(A); Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
The Commissioner employs a five-step sequential evaluation to determine whether an adult
claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The following five issues are addressed in
order: (1) if a claimant is engaging in substantial gainful activity, she is not disabled; (2) if a
claimant does not have a severe impairment, she is not disabled; (3) if the claimant's impairment
meets or equals a listed impairment, she is disabled; (4) if the claimant is capable of returning to
work they have done in the past, she is not disabled; (5) if the claimant can do other work that
exists in significant numbers in the regional or the national economy, she is not disabled. Id. If, at
one step, an ALJ makes a dispositive finding, the inquiry ends without proceeding to the next. 20
C.F.R. §§ 404.1520; 416.920; Skinner v. Sec'y of Health & Human Servs., 902 F.2d 447, 449-50
(6th Cir. 1990). Once, however, the claimant makes a prima facie case that she cannot return to
her former occupation, then the burden shifts to the Commissioner to show that there is work in
the national economy that the claimant can perform considering her age, education, and work
experience. Richardson v. Sec'y of Health and Human Servs., 735 F.2d 962, 964 (6th Cir. 1984);
Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975).
The standard of judicial review is whether substantial evidence supports the
Commissioner's findings and whether the Commissioner made any legal errors in the process of
reaching their decision. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (adopting and
defining substantial evidence standard in the context of Social Security cases); Landsaw v. Sec'y
of Health and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Even if there is contrary evidence,
the Commissioner's findings must be affirmed if evidence exists to support the Commissioner's
findings. Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). Courts may not reweigh the
evidence and substitute their judgment for that of the Commissioner because substantial evidence
exists to support a different conclusion. The substantial evidence standard allows considerable
latitude to administrative decision-makers. It presupposes a "zone of choice" within which
decision-makers can go either way without court interference. Felisky v. Bowen, 35 F.3d 1027 (6th
Cir. 1994) (citing Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Sec'y, Health and
Human Servs., 790 F.2d 450 n.4 (6th Cir. 1986).
Courts may consider any evidence in the record, regardless of whether the ALJ cited to it.
See Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). But courts may not consider
evidence that was not before the ALJ. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Courts
are also not obligated to scour the record for errors not identified by the claimant. Howington v.
Astrue, No. 2:08-cv-189, 2009 WL 2579620, at *6 (E.D. Tenn. August 18, 2009) (stating that
assignments of error not made by claimant were waived). Further, "issues [that] are 'adverted to in
a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.'" Kennedy v. Comm'r of Soc. Sec., 87 F. App'x 464, 466 (6th Cir. 2003) (quoting United
States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)).
V. Analysis
Among other things, Plaintiff argues that the ALJ erred because “the ALJ failed to consider
Plaintiff’s testimony at any point in the decision.” [Doc. at 9].
A. Failure to Consider Plaintiff’s Testimony
Plaintiff claims the ALJ failed to consider Plaintiff’s testimony because the ALJ did not
discuss Plaintiff’s testimony in his decision. Plaintiff conflates two separate concepts. There is a
difference between what the ALJ must consider versus what he must discuss. Plaintiff is correct
that the ALJ must “consider all of your statements about your symptoms, such as pain.” 20 C.F.R.
§§ 404.1529(a), 416.929(a). Similarly, Plaintiff is correct that the ALJ must base his findings on
the record, “including any testimony from the individual.” SSR 16-3p. However, an ALJ is not
"required to discuss each piece of data in its opinion, so long as they consider the evidence as a
whole and reach a reasoned conclusion." Boseley v. Comm'r of Soc. Sec. Admin., 397 F. App'x
195, 199 (6th Cir. 2010).
Plaintiff claims that SSR 16-3p, which lays out how the Commissioner will evaluate
symptoms in a disability claim, requires an ALJ to “address any hearing testimony offered from a
claimant when formulating a decision.” [Doc. 19 at 10]. SSR 16-3p does not support such a broad
rule, but part of SSR 16-3p does support Plaintiff’s general claim of error in this case. In subsection
(2)(d), the ruling lists seven factors used “to evaluate the intensity, persistence, and limiting effects
of an individual’s symptoms.” SSR 16-3p(2)(d). The seven factors are:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an individual
takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for relief
of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve pain
or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s functional limitations and
restrictions due to pain or other symptoms.
Id.
The ruling then states:
We will consider other evidence to evaluate only the factors that are relevant to
assessing the intensity, persistence, and limiting effects of the individual's
symptoms. If there is no information in the evidence of record regarding one of the
factors, we will not discuss that specific factor in the determination or decision
because it is not relevant to the case. We will discuss the factors pertinent to the
evidence of record.
Id. (emphasis added).
In this case, the ALJ was required2 to discuss any of the seven factors that applied to
Defendant’s migraines from the evidence of record. The ALJ’s only discussion of Plaintiff’s
migraines states:
The record also shows evidence of migraines, but it is not so severe as to be
disabling. The record does not contain specialized or regular treatment for this
impairment. However, the claimant has gone to the emergency room a couple of
times due to migraine symptoms.
(Tr. 27).
The ALJ properly addressed the fifth factor, but certainly did not address, for instance, the
second,3 fourth, or sixth factors. Therefore, if there is information in the record regarding such
factors, then the ALJ erred.
2 Based on the criteria in subsection (2)(d) and criteria found earlier in SSR 16-3p, that have been met in this case,
such as a finding “that the individual has a medically determinable impairment(s) that could reasonably be expected
to produce those symptoms.”
3 While the ALJ’s use of the word “severe” could arguably relate to intensity, it is clear from the context that
“severe” is being used as a conclusion about Plaintiff’s condition, not in a discussion about Plaintiff’s condition (i.e.,
a discussion that would likely include other things such as location, duration, and frequency of pain and other
symptoms) that supports a conclusion.
At the initial hearing, Plaintiff testified that her migraines grew worse over time; she was
having them two to three times a week; she was taking Butalbital for both prevention and relief;
and she had to “be in the dark and the total quiet” after onset. (Tr. 73-74). Thus, the second
(frequency), fourth (medication), and sixth (measures other than treatment) factors were pertinent
to the evidence of record. Plaintiff’s testimony about her “other measures” also goes to the second
factor (severity) as does her testimony that migraines were the second most severe thing bothering
her. (Tr. 73). Additionally, medical records reflecting dosage and effectiveness information
regarding Plaintiff’s use of Butalbital further implicate the fourth factor (medication). See, e.g.,
(Tr. 611, 612, 785, 821, 935, 949, 980, 1117, 1124, 1149, 1156).
Therefore, the ALJ erred by not discussing all the pertinent factors related to Plaintiff’s
migraines as mandated by SSR 16-3p.
B. Effect of the ALJ’s Error
“[E]ven 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 742, 746 (6th
Cir. 2007)). As the Commissioner failed to follow SSR 16-3p, the question is whether that error
prejudices Plaintiff on the merits or deprives her of a substantial right.
Rabbers involved an ALJ’s failure to rate the paragraph B criteria. 582 F.3d 647. In its
opinion, the Sixth Circuit specifically admonished courts to “exercise caution in conducting
harmless error review” where the record contains “conflicting or inconclusive evidence” or
“evidence favorable to the claimant that the ALJ simply failed to acknowledge or consider.” Id. at
657–58. Though this case does not involve paragraph B criteria, the underlying principle applies.
Here, there is conflicting evidence. Plaintiff’s testimony regarding her migraines weighs in
favor of a finding of disability. However, as noted by the ALJ, Plaintiff’s lack of treatment does
not favor disability. Plaintiff makes the quite reasonable case that her inability to afford regular
medical care should not be held against her. [Doc. 19 at 11-14]. However, she sought treatment
through the years for a number of other conditions. Further exemplifying conflicting evidence,
Plaintiff both testified and argues in her brief that she took Butalbital for migraines. (Tr. 73-74);
[Doc. 19 at 13]. However, Plaintiff’s first citation in her brief is to a medical record that clearly
states the Butalbital was for low back pain. See (Tr. 611-12).
More importantly, there is evidence favorable to Plaintiff that the ALJ did not acknowledge
and may not have considered. On the one hand, the ALJ stated generally that he considered the
entire record, including Plaintiff’s statements. See (Tr. 26) (“After careful consideration of the
entire record . . .”; “I have considered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence and other evidence.”);
(Tr. 27) (“[W]henever statements about the intensity, persistence, or functionally limiting effects
of pain or other symptoms are not substantiated by objective medical evidence, I must consider
other evidence in the record to determine if the claimant’s symptoms limit the ability to do work-
related activities.”) On the other hand, the ALJ’s lack of discussion on pertinent factors related to
Plaintiff’s migraines leaves the Court without a meaningful way to review whether those specifics
were considered.
Therefore, on the record in this case, the Court cannot find that the ALJ’s error was
harmless. The ALJ’s error in failing to fulfill the requirements of SSR 16-3p prejudiced Plaintiff
on the merits. Thus, remand is appropriate whether or not the Commissioner’s decision is
supported by substantial evidence.
VI. Conclusion
Having reviewed the administrative record and the parties' briefs, Plaintiff's Motion for
Summary Judgment [Doc. 18] is GRANTED, the Commissioner's Motion for Summary
Judgment [Doc. 26] is DENIED, and the Commissioner’s decision is REMANDED to the
ALJ under Sentence Four of 42 U.S.C. § 405(g).
SO ORDERED.
/s/ Christopher H. Steger
UNITED STATES MAGISTRATE JUDGE