The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SHERRY L. HARPER PLAINTIFF
V. Civil No. 2:21-cv-02109-PKH-MEF
KILOLO KIJAKAZI1, Acting Commissioner,
Social Security Administration DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Sherry Harper, brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of Social Security Administration (the “Commissioner”)
denying her claim for a period of disability and disability insurance benefits (“DIB”) under Title
II of the Social Security Act (“the Act”), 42 U.S.C. § 423(d)(1)(A). In this judicial review, the
Court must determine whether there is substantial evidence in the administrative record to support
the Commissioner’s decision. See 42 U.S.C. § 405(g).
I. Procedural Background
Plaintiff protectively filed her application for DIB on June 29, 2018,2 alleging disability
since April 10, 2016, due to degenerative disk disease (“DDD”), back pain, nerve damage, sciatica,
neuropathy, arthritis, asthma, post-traumatic stress disorder (“PTSD”), obsessive compulsive
disorder (“OCD”), and anxiety. (ECF No. 10-3, pp. 35, 53; ECF No. 10-5, pp. 2-3; ECF No. 10-
6, p. 18, 56-57). An administrative hearing was held on June 8, 2020, at which time the Plaintiff
was present and represented by counsel. (ECF No. 10-2, pp. 42-70). At this time, she amended
her alleged onset date to July 23, 2018.
1 Kilolo Kijakazi became Acting Commissioner of the Social Security Administration on July 9, 2021. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted as the defendant in this suit.
2 The record also contains prior unfavorable decisions rendered on November 12, 2010, and September 28, 2017.
(ECF No. 10-3, pp. 10-13, 17-26).
Plaintiff was 38 years old on her amended alleged onset date and possessed a tenth-grade
education. (ECF No. 10-2, pp. 33). She had past relevant work (“PRW”) experience as a cafeteria
cook, fast food cook, and waitress. (Id. at 34; ECF No. 10-6, pp. 4-10, 19, 28-29, 38-45).
On September 3, 2020, the Administrative Law Judge (“ALJ”) identified the following
impairments as severe: mild DDD of the lumbar spine with disk protrusion and impingement of
the nerve root; PTSD; depression, variably characterized as bipolar disorder; anxiety; arthritis;
obesity; degenerative disease of the cervical spine with mild cord flattening and moderate stenosis;
asthma; and mild left shoulder joint degenerative joint disease (“DJD”), status post arthroscopy
and decompression. (ECF No. 10-2, pp. 19). She then concluded the Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 20). Despite her
impairments, the ALJ found she retained the residual functional capacity (“RFC”) to perform
unskilled, sedentary work requiring only occasional postural activities, frequent overhead reaching
with the left upper extremity, no concentrated exposure to pulmonary irritants, and no exposure to
bright light or sunshine. (Id. at 22). Further, she determined the Plaintiff could perform simple,
routine, and repetitive tasks requiring simple work-related decisions and few variables where the
social interaction is incidental to the work performed. With the assistance of a vocational expert
(“VE”), the ALJ ultimately decided there were jobs that exist in significant numbers in the national
economy that the Plaintiff could perform, including eye glass frame polisher, nut sorter, and
printed circuit board checker. (Id. at 34).
The Appeals Council denied Plaintiff’s request for review on April 8, 2021 (ECF No. 10-
2, pp. 2-7), and she filed this action on June 4, 2021. (ECF No. 2). Both parties have filed appeal
briefs. (ECF Nos. 16, 17). The matter is ready for Report and Recommendation.
II. Applicable Law
This Court’s role is to determine whether substantial evidence supports the
Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial
evidence is less than a preponderance, but it is enough that a reasonable mind would find it
adequate to support the Commissioner’s decision. Biestek v. Berryhill, 139 S.Ct. 1148, 1154
(2019). We must affirm the ALJ’s decision if the record contains substantial evidence to support
it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). If there is substantial evidence in the
record that supports the Commissioner’s decision, the Court may not reverse it simply because
substantial evidence exists in the record that would have supported a contrary outcome, or because
the Court would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir.
2015). In other words, if after reviewing the record it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the findings of the ALJ, we must affirm
the ALJ’s decision. Id.
A claimant for Social Security disability benefits has the burden of proving her disability
by establishing a physical or mental disability that has lasted at least one year and that prevents
her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2001); see also 42 U.S.C. § 423(d)(1)(A). The Act defines “physical or mental
impairment” as “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3). A Plaintiff must show that her disability, not simply her
impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given her age, education, and experience. See 20 C.F.R. § 404.1520(a)(4). The fact finder only
considers Plaintiff’s age, education, and work experience in the light of her RFC if the final stage
of the analysis is reached. 20 C.F.R. § 404.1520(a)(4)(v).
III. Discussion
Plaintiff raises five issues on appeal, including a contention that the ALJ failed to properly
consider her migraine headaches at step two and three of the sequential process. At step two, a
claimant has the burden of providing evidence of functional limitations in support of their
contention of disability. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). An impairment will
be found to be non-severe if it amounts only to “a slight abnormality that would not significantly
limit the claimant’s physical or mental ability to do basic work activities.” Id. (citing Bowen v.
Yuckert, 482 U.S. 137, 153 (1987); 20 C.F.R. § 404.1521(a)). “If the impairment would have no
more than a minimal effect on the claimant’s ability to work, then it does not satisfy the
requirement of step two.” Id. (citing Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)).
Here, records reveal a significant history of migraine headaches dating back to
adolescence. (ECF No. 10-7, pp. 61-64; ECF No. 10-8, pp. 5-18, 27-40, 60-65, 67, 72-76, 79-84,
137-141; ECF No. 10-9, pp. 5-27, 32-36, 41-57, 95-127; ECF No. 10-11, pp. 41-52, 64-94, 105-
113, 115-125; ECF No. 10-12, pp. 35-42, ECF No. 10-13, pp. 111-112; ECF No. 10-14, pp. 38-
45). Relying on treatment notes from December 2017, February 2018, March 2018, October 2018,
and January 2019, wherein the Plaintiff reported that the medications prescribed to treat her
headaches, namely Topamax and Sumatriptan, were at least somewhat effective, the ALJ found
her headaches to be non-severe. (ECF No. 10-7, pp. 61-64; ECF No. 10-8, pp. 10-14, 23-27, 40-
49, 60-65, 67; ECF No. 10-9, pp. 53-61, 117-127). She concluded that a restriction to simple,
routine, and repetitive tasks with simple work-related decisions and few variables, as well as the
avoidance to bright light and sunshine would sufficiently address any limitations resulting from
Plaintiff’s headaches. Following a review of the evidence, we disagree.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545.
The United States Court of Appeals for the Eighth Circuit has held that a claimant’s RFC is a
“medical question” that is determined based on “all relevant evidence in the record, including
medical records, observations of treating physicians and others, and the claimant’s own
descriptions of his or her limitations.” Miller v. Colvin, 784 F.3d 472, 479 (8th Cir. 2015) (citing
Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001); Jones v. Astrue, 619 F.3d 963, 971 (8th Cir.
2010); Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009). Therefore, an ALJ’s RFC
determination must be supported by some medical evidence that addresses the claimant’s ability
to function in the workplace. Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012). Further,
limitations resulting from symptoms such as pain must be factored into the assessment. 20 C.F.R.
§ 404.1545(a)(3).
In February and March 2018, Plaintiff complained of weekly migraines. (ECF No. 10-8,
pp. 40-44). Although she reported some improvement over the next few months, she suffered a
setback in December 2018, at which point her weekly headaches returned, lasting up to three days,
despite the use of Topiramate. (ECF No. 10-8, pp. 14-18, 23-40).
On December 11, 2018, Plaintiff’s treating healthcare provider, Advance Practical Nurse
(“APN”) Linda Blasingame completed a Migraine Headache Form indicating that the Plaintiff
experienced one or more headaches per week with associated nausea, vomiting, photophobia,
and/or phonophobia, that would cause her to miss approximately one day of work per week. (ECF
No. 10-7, pp. 72-73; ECF No. 10-8, pp. 14-18). She documented only a fair response to
Topiramate and Sumatriptan.
In January 2019, Plaintiff reported migraines once every two to three weeks. (ECF No.
10-8, pp. 10-14). Seven months later, this had increased to daily headaches with typical migraines
occurring once per week “or so.” (ECF No. 10-8, pp. 137-141).
On October 9, 2019, Plaintiff sought out treatment for a migraine that had been ongoing
for several days. (ECF No. 10-14, pp. 38-45). She indicated that her migraines had become more
frequent, despite taking the Topiramate as prescribed, and requested to see a neurologist. Although
she did report being out of Sumatriptan, we note that Sumatriptan is an acute medication rather
than a preventative and, as such, will do nothing to prevent the onset of a headache. Nurse
Blasingame granted the referral and made no medication changes.
Neurologist Tonya Phillips, M. D., evaluated the Plaintiff on February 19, 2020, at which
time she reported waking up with a headache every morning with typical migraines occurring two
to three times per week. (ECF No. 10-12, pp. 35-42). Plaintiff also had a history of neck, back,
and shoulder issues for which Hydrocodone, Cyclobenzaprine, and Gabapentin had been
prescribed. She opined that the Topiramate made her headaches less severe, as opposed to less
frequent, and that the Sumatriptan only “sometimes” helped. Dr. Phillips diagnosed chronic
intractable migraines, most likely transformed migraine and analgesic rebound. She explained that
the Plaintiff would be unlikely to reign in her migraines if she continued to use narcotic pain
medication. Concluding that an increased dose of Topiramate would not be helpful, Dr. Phillips
prescribed Verapamil.
On April 8, 2020, Plaintiff advised Nurse Blasingame that her migraines persisted, with
the Sumatriptan and Topiramate being only somewhat beneficial. (ECF No. 10-14, pp. 48-54).
Her medications were continued without change. And on July 8, 2020, she reported continued
issues with migraine headaches. (ECF No. 10-14, pp. 65-72).
After reviewing this evidence, we do not find substantial evidence to support the ALJ’s
conclusion that the Plaintiff’s migraine headaches were a non-severe impairment. The link
between her neck pain, the pain medication prescribed to treat her chronic neck, back, and shoulder
pain, and her migraines is clear. Records dating back to at least 2003 reveal a history of chronic
pain related to disk protrusions, stenosis, nerve root impingement, and degenerative changes in the
lumbar and cervical spine. (ECF No. 10-8, pp. 18-19; ECF No. 10-10, pp. 32-33, 39, 53, 74-75;
ECF No. 10-14, pp. 28-29). Plaintiff was treated by a pain specialist, Adam Sewel, M. D., through
January 2017, at which point insurance changes forced her to find another provider. (ECF No. 10-
11, pp. 115-125). Most recently, a January 2019 MRI of her lumbar spine showed a moderate
sized L4-5 left paracentral disc protrusion causing lateral recess stenosis and impingement on the
traversing nerve roots. (ECF No. 10-8, pp. 18-19; ECF No. 10-10, pp. 32-33; ECF No. 10-14, p.
28-29). Nurse Blasingame prescribed conservative measures, including physical therapy and a
TENS unit to no avail. (ECF No. 10-8, pp. 5-14; ECF No. 10-13, pp. 111-112).
In May 2019, a neurosurgeon, Joseph Queeney, D.O., opined that surgical fusion was not
recommended because it offered only a 10 percent chance of relieving her chronic pain. (ECF No.
10-8, pp. 123-133). Accordingly, in August 2019, the Plaintiff established with Dr. Ornette Gaines
and Advanced Registered Nurse Practitioner (“ARNP”) Amberlyn Naples at Optimal Pain and
Wellness. (ECF No. 10-12, pp. 4-8). They prescribed Hydrocodone, Gabapentin, and
Cyclobenzaprine to treat her chronic pain. (ECF No. 10-12, pp. 4-18).
An MRI of Plaintiff’s cervical spine conducted in February 2020 also revealed mild
multilevel cervical spondylosis, central disc protrusions with mild cord flattening at the C4-5 and
C5-6 levels, moderate central canal stenosis at the C5-6 level, and mild left neural foraminal
stenosis at the C6-7 level due to uncinated process hypertrophy. (ECF No. 10-13, pp. 36-37).
Further, an MRI of her left shoulder later that month disclosed a small amount of fluid present in
the subacromial (“SA”) bursa with mild degenerative changes in the acromioclavicular (“AC”)
joint. (ECF No. 10-13, pp. 30-35). Orthopedic surgeon, Jeffrey Evans, M.D., read the MRI to
show AC joint arthritis and SA bursitis. (Id. at 55-70). He recommended left shoulder arthroscopy
with distal clavicle resection and arthroscopic subacromial decompression, which the Plaintiff
underwent on February 25, 2020. (Id. at 70-78).
These records clearly reveal significant issues involving Plaintiff’s back, neck, and
shoulder for which narcotic pain medication was necessary. The fact that this medication caused
rebound headaches that contributed to, if not accounted for, her frequent migraines, should have
been considered by the ALJ at both steps two and three of the sequential analysis. Merely limiting
the Plaintiff to unskilled work is not sufficient to account for the work absences and potential
concentration issues resulting from said headaches, as well as the medications prescribed to treat
them. As such, we find that remand is necessary to allow the ALJ to reconsider the Plaintiff’s
migraine headaches in combination with her chronic back, neck, and shoulder issues. In so doing,
the ALJ should also consider Social Security Ruling 19-4p concerning the evaluation of primary
headache disorders.
We also find that the ALJ’s limitation to frequent overhead reaching with the left upper
extremity may not fully account for the restrictions resulting from her shoulder impairment. As
previously mentioned, her arthritis and bursitis necessitated surgical correction. Records dated as
late as July 2020 documented persistent shoulder pain, and Nurse Blasingame referred her to
therapy. Therefore, further development of the record is necessary to determine the Plaintiff’s
ability to use her left arm for work-related tasks.
Accordingly, on remand, the ALJ is directed to obtain medical source statements from
Plaintiff’s treating pain specialist, neurologist, and orthopedic surgeon. If said physicians are
unwilling or otherwise unable to complete said statements, the ALJ is directed to order a
consultative neurological exam, complete with a thorough RFC assessment to determine Plaintiff’s
true work restrictions.
V. Conclusion
For the reasons stated above, I recommend reversing and remanding this case to the
Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).
The parties have fourteen (14) days from receipt of our report and recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. We remind the parties
that objections must be both timely and specific to trigger de novo review by the district
court.
DATED this 27th day of June 2022.
/s/ Mark E. Ford
HON. MARK E. FORD
CHIEF UNITED STATES MAGISTRATE JUDGE