United States District Court, S.D. West Virginia, Charleston Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. EIFERT, UNITED STATES MAGISTRATE JUDGE
action seeks a review of the decision of the Commissioner of
the Social Security Administration (hereinafter
“Commissioner”) denying Plaintiff's
application for a period of disability and disability
insurance benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C. §§ 401-433. The
matter is assigned to the Honorable John T. Copenhaver, Jr.,
United States District Judge, and was referred to the
undersigned United States Magistrate Judge by standing order
for submission of proposed findings of fact and
recommendations for disposition pursuant to 28 U.S.C. §
636(b)(1)(B). Presently pending before the Court are the
parties' cross motions for judgment on the pleadings as
articulated in their briefs. (ECF Nos. 14, 17). The
undersigned has fully considered the evidence and the
arguments of counsel. For the following reasons, the
undersigned RECOMMENDS that Plaintiff's
request for judgment on the pleadings be
DENIED, the Commissioner's request for
judgment on the pleadings be GRANTED, the
Commissioner's decision be AFFIRMED, and
that this case be DISMISSED and removed from
the docket of the Court.
August 9, 2013, Plaintiff, Anna Lee Johnson
(“Claimant”), completed an application for DIB,
alleging a disability onset date of May 3, 2010, due to
fibromyalgia; hypothyroidism that caused short-term memory
problems; muscle spasms in her back, neck, and shoulders;
anxiety; insomnia; severe headaches lasting over a month;
joint pain in every joint that was worst in the hips and
knees; hand and wrist pain; hypercholesterolemia; disc
degeneration and/or bone spurs at ¶ 3 through C7 and
Luschka's joint spondylosis. (Tr. at 252-57, 271). The
Social Security Administration (“SSA”) denied
Claimant's application initially and upon
reconsideration. (Tr. at 166, 176). Claimant filed a request
for an administrative hearing, which was held on September
24, 2015, before the Honorable Toby J. Buel, Sr.,
Administrative Law Judge (“ALJ”). (Tr. at
79-124). By written decision dated October 26, 2015, the ALJ
found that Claimant was not disabled as defined in the Social
Security Act. (Tr. at 56-78). The ALJ's decision became
the final decision of the Commissioner on January 9, 2017,
when the Appeals Council denied Claimant's request for
review. (Tr. 1-7).
timely filed the present civil action seeking judicial review
pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The
Commissioner filed an Answer and a Transcript of the
Administrative Proceedings. (ECF Nos. 8, 9). Both parties
filed memoranda in support of judgment on the pleadings. (ECF
Nos. 14, 17). Consequently, the issues are fully briefed and
ready for resolution.
was 42 years old on her alleged onset date and 47 years old
on her date last insured. (Tr. at 69). She has the equivalent
of a high school education and communicates in English. (Tr.
at 270, 272). In the past, Claimant worked as a commercial
cleaner, home health aide, cashier, and overnight stocker.
(Tr. at 116-18).
Summary of ALJ's Decision
42 U.S.C. § 423(d)(5), a claimant seeking disability
benefits has the burden of proving a disability. See
Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir.
1972). A disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable impairment 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).
Social Security regulations establish a five-step sequential
evaluation process for the adjudication of disability claims.
If an individual is found “not disabled” at any
step of the process, further inquiry is unnecessary and
benefits are denied. 20 C.F.R. § 404.1520. The first
step in the sequence is determining whether a claimant is
currently engaged in substantial gainful employment.
Id. § 404.1520(b). If the claimant is not, then
the second step requires a determination of whether the
claimant suffers from a severe impairment. Id.
§ 404.1520(c). If severe impairment is present, the
third inquiry is whether this impairment meets or equals any
of the impairments listed in Appendix 1 to Subpart P of the
Administrative Regulations No. 4 (the “Listing”).
Id. § 404.1520(d). If the impairment does, then
the claimant is found disabled and awarded benefits.
if the impairment does not meet or equal a listed impairment,
the adjudicator must determine the claimant's residual
functional capacity (“RFC”), which is the measure
of the claimant's ability to engage in substantial
gainful activity despite the limitations of his or her
impairments. Id. § 404.1520(e). After making
this determination, the fourth step is to ascertain whether
the claimant's impairments prevent the performance of
past relevant work. Id. § 404.1520(f). If the
impairments do prevent the performance of past relevant work,
then the claimant has established a prima facie case
of disability, and the burden shifts to the Commissioner to
demonstrate, as the fifth and final step in the process, that
the claimant is able to perform other forms of substantial
gainful activity when considering the claimant's
remaining physical and mental capacities, age, education, and
prior work experiences. 20 C.F.R. § 404.1520(g); see
also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983). The Commissioner must establish two things: (1) that
the claimant, considering his or her age, education, skills,
work experience, and physical shortcomings has the capacity
to perform an alternative job, and (2) that this specific job
exists in significant numbers in the national economy.
McLamore v. Weinberger, 538 F.2d. 572, 574 (4th Cir.
the ALJ determined as a preliminary matter that Claimant met
the insured status for disability insurance benefits through
March 31, 2015. (Tr. at 61, Finding No. 1). At the first step
of the sequential evaluation, the ALJ confirmed that Claimant
had not engaged in substantial gainful activity since May 3,
2010, her alleged onset date, through her date last insured.
(Id., Finding No. 2). At the second step of the
evaluation, the ALJ found that Claimant had the following
severe impairments: “fibromyalgia, degenerative disc
disease of the cervical and lumbar spine, and
headaches.” (Id., Finding No. 3). The ALJ also
considered Claimant's hypothyroidism, hyperlipidemia,
urinary tract infections, renal insufficiency, asymptomatic
stage III chronic kidney disease, status post left wrist
fracture, anxiety, and depression, but determined that these
impairments were non-severe. (Tr. at 61-63). Under the third
inquiry, the ALJ found that Claimant did not have an
impairment or combination of impairments that met or
medically equaled any of the impairments contained in the
Listing. (Tr. at 63, Finding No. 4). Accordingly, the ALJ
determined that Claimant possessed:
[T]he residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except never climb ladders,
ropes, or scaffolds and perform all other postural activity
occasionally. She may have no exposure to heights, moving
machinery, and hazards. The Claimant is afflicted with
chronic pain noticeable to herself at all times, but could
maintain attention and concentration in two-hour increments
with normal breaks.
(Tr. at 63-69, Finding No. 5).
fourth step, the ALJ found that Claimant could perform her
past relevant work as a cashier/checker. (Tr. at 69-70,
Finding No. 6). Therefore, the ALJ found that Claimant was
not disabled and was not entitled to benefits. (Tr. at 71,
Finding No. 7).
Claimant's Challenge to the Commissioner's
asserts two challenges to the Commissioner's decision.
First, Claimant contends that the ALJ's step three
analysis of her cervical spine impairment and migraines was
not supported by substantial evidence. Claimant argues that
the ALJ's analysis of her cervical spine impairment under
Listing 1.04 was conclusory, inconsistent with the ALJ's
subsequent discussion of the evidence, and that the ALJ
failed to apply any of the evidence to the listing criteria.
(ECF No. 14 at 9-11). Claimant asserts that the analysis of
her migraine headaches was similarly deficient because the
ALJ did not identify the specific listing under Listing 11.00
that was considered, did not acknowledge that her headaches
were to be considered under Listing 11.03, and did not
compare the evidence to the listing criteria. (Id.
also challenges the ALJ's assessment of her pain and
credibility. Specifically, Claimant argues that the ALJ erred
in relying almost exclusively on objective evidence to
discredit allegations of disabling pain from headaches. (ECF
No. 14 at 5-9). Claimant points to case law emphasizing that
migraine headaches are not detectable in laboratory testing
and physical examinations; therefore, an ALJ should not rely
on the absence of objective evidence of migraine headaches to
discredit a claimant's allegations of pain. (Id.
at 7-8). Claimant states that the ALJ did not demonstrate how
Claimant's statements were inconsistent with the
evidence. Moreover, the ALJ selected and presented evidence
in a manner designed to favor his own conclusions. (ECF No.
14 at 5-6).
response to Claimant's arguments, the Commissioner argues
that the record did not contain probative evidence that
Claimant met or equaled any of the listed impairments;
therefore, any further articulation than the ALJ provided was
unnecessary. Regarding Claimant's cervical spine
impairment, the Commissioner states that the ALJ correctly
found that Claimant could not meet the introductory criteria
of Listing 1.04 because there was no evidence of nerve root
compression, spinal arachnoiditis, or lumbar spinal stenosis.
(ECF No. 17 at 17-19). Further, the Commissioner argues that
the record showed that Claimant did not suffer sensory loss,
which was required under the listing. (Id. at
18-19). Regarding Claimant's headaches, the Commissioner
contends that the ALJ thoroughly reviewed the evidence, which
showed an absence of symptoms normally associated with
migraines such as photophobia, sonophobia, nausea, or
vomiting; daily activities that were inconsistent with
Claimant's complaints; and testimony by a medical expert
that Claimant did not meet a listing. (Id. at
Claimant's pain and credibility, the Commissioner asserts
that the ALJ correctly analyzed Claimant's allegations
regarding her headaches by considering a number of factors,
not just the lack of objective evidence, including the fact
that Claimant underwent little treatment prior to 2011, the
type of treatment Claimant received or used, the lack of
associated symptoms, and Claimant's daily activities.
(Id. at 23-25). Further, the Commissioner points out
that the ALJ accounted for Claimant's pain in the RFC
finding, noting that Claimant had chronic pain noticeable to
her at all times, but still had the ability to maintain
attention and concentration in two-hour increments.
(Id. at 25).
the undersigned has reviewed all evidence of record, only the
notations most relevant to the disputed issues are summarized
December 8, 2011, a MRI was taken of Claimant's cervical
spine due to her complaints of neck and arm pain. Claimant
had some moderate disc degeneration and narrowing at ¶
4-5 and C3-4, as well as mild degeneration and narrowing at
¶ 5-6 and C6-7, but there was no contact with
Claimant's spinal cord. (Tr. at 396). Claimant also had a
MRI of her thoracic spine, which was an “essentially
negative” examination. (Tr. at 397).
thereafter, on December 21, 2011, Claimant presented to Gregg
A. Alexander, M.D., at Tallahassee Orthopedic Clinic, for
chronic neck and back pain. (Tr. at 472). Claimant stated
that she remained symptomatic despite trying physical
therapy. (Id.). Dr. Alexander reviewed the MRIs of
Claimant's spine taken earlier that month, noting that in
Claimant's cervical spine, there was moderate
disc/osteophyte at ¶ 4-5 and C5-6, but no central canal
narrowing or neuroforaminal narrowing of significance. Dr.
Alexander found the imaging, overall, reflected an
essentially normal MRI for an individual of Claimant's
age. He also saw no significant abnormalities in
Claimant's thoracic spine. (Id.). Dr. Alexander
remarked that Claimant's spine was normal in size and
signal throughout. (Id.). On examination, Claimant
had mild/moderate tightness in her neck and upper back, rapid
withdrawal from light touch, and diffuse muscle tenderness,
but no neurological deficits. (Id.). Dr. Alexander
diagnosed Claimant with cervical disc degeneration at ¶
4-5 and C5-6 that was moderate in severity, without any
compressive lesion or clinical findings of spinal cord or
nerve root compression, and mid-back pain with a normal MRI.
(Tr. at 472). Dr. Alexander offered a prescription for
Fioricet to Claimant to take as needed for muscle tension
headaches. (Id.). Dr. Alexander documented that he
tried to reassure Claimant that her spine anatomy did not
require surgery and was not extreme. (Id.).
November 2, 2012, Claimant presented to Deborah E. Newsome,
ARNP, for a disability examination because her request for
benefits was recently denied. (Tr. at 422). Claimant reported
neck pain and exhibited trapezius spasms bilaterally on
examination. (Tr. at 422, 424). Claimant stated that her neck
pain and spasms were somewhat relieved by Flexeril; thus, the
medication was refilled. (Tr. at 426). Claimant also reported
intermittent headaches for which she took Fioricet in the
past with relief of symptoms. (Tr. at 425). Claimant's
prescription for Fioricet was renewed, and she was advised to
rest in a dark room when she had a headache. (Id.).
August 14, 2013, Claimant returned to Ms. Newsome, stating
that she was experiencing persistent headaches that she rated
a “10” out of “10” in severity, which
began one month prior. (Tr. at 427). Claimant also continued
to have neck pain. (Id.). Her neck pain was assessed
to be cervicalgia for which Flexeril was renewed. (Tr. at
429). For her headaches, Claimant was prescribed the opioid
pain medication, Tramadol, and the nonsteroidal
anti-inflammatory drug (NSAID), Mobic. (Id.).
29, 2014, x-rays were taken of Claimant's lumbar,
thoracic, and cervical spine with normal results; it was
noted that if Claimant had further unexplained pain, a MRI or
bone scan should be considered. (Tr. at 520-22). The
following month, on June 17, 2014, Claimant presented as a
new patient to Jessica M. Shreve, M.D., at Rosemar Clinic, to
establish her primary care in West Virginia after moving from
Florida. (Tr. at 582). Claimant explained that she suffered
from neck and back pain and headaches that began several
years ago when her mother, who suffered hallucinations
secondary to a hypoglycemic episode, pushed Claimant into a
door, twisting her neck, and kicked Claimant in the face.
(Id.). Claimant stated that she saw a chiropractor
over the past year with no relief. (Id.). She also
complained that “nothing seemed to help” her
headaches, although she did not regularly take Tylenol or
ibuprofen. (Id.). On examination, Claimant had no
tenderness, pain, or swelling in her cervical spine and she
demonstrated normal movements, posture, and sensation. (Tr.
7, 2014, Claimant reported to Dr. Shreve that she continued
to have neck pain and a headache almost daily. (Tr. at 575).
She went to Med Express on June 27 and was given Narco to
try, but it provided no relief, and she had previously tried
tramadol with no relief. (Id.). Claimant had a
headache at the time of her visit, but felt well in general
with no visual, auditory, or neurological symptoms. (Tr. at
576). On examination, Claimant had no tenderness in her
cervical spine and normal movement, posture, and sensation.
(Tr. at 577). Dr. Shreve ordered a CT scan of Claimant's
head and referred her for a neurosurgical consultation. (Tr.
28, 2014, Claimant presented to Houman Khosrovi, M.D., at
PARS Neurosurgical Associates, Inc. Claimant reported that
she suffered neck pain extending into her head, resulting in
headaches. (Tr. at 503). Claimant explained that the
headaches began after her mother shut Claimant's neck in
a door and kicked her on both sides of her face in July 2013.
(Id.). Claimant's musculoskeletal and
neurological examinations were normal, except that Claimant
had a moderately reduced range of motion in her cervical
spine. (Tr. at 506-07). Claimant maintained a normal range of
motion in her extremities; had no atrophy; demonstrated
normal muscle tone, strength, and movement; and her sensation
was intact. (Id.). Claimant was assessed with a
headache and cervicalgia and the plan was for her to pursue
physical therapy. If she continued to be symptomatic, Dr.
Khosrovi would order a MRI. (Tr. at 507).
September 15, 2014, Claimant returned to PARS Neurosurgical
Associates, Inc., and saw Brian P. Showalter, PA-C. She
reported having completed four weeks of physical therapy, but
the sessions were discontinued by the therapist because
Claimant was not experiencing any relief of her symptoms.
(Tr. at 508). Claimant further reported that she tried Mobic
for two months, but it was discontinued due to kidney
disease, and she stated that muscle relaxers offered modest