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
applications for a period of disability and disability
insurance benefits (“DIB”) and supplemental
security income (“SSI”) under Titles II and XVI
of the Social Security Act, 42 U.S.C. §§ 401-433,
1381-1383f. 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
Plaintiff's Brief in Support of Judgment on the Pleadings
and the Commissioner's Brief in Support of
Defendant's Decision, requesting judgment in her favor.
(ECF Nos. 10, 11).
fully considered the record and the arguments of the parties,
the undersigned United States Magistrate Judge respectfully
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
November 15, 2013, Plaintiff Robert Kenneth Walker
(“Claimant”), completed applications for DIB and
SSI, alleging a disability onset date of October 21, 2013, on
the basis that he was “unable to focus” and had a
degenerated disc in his lower back, sciatica, severe migraine
headaches, a cyst in the back of his head, high blood
pressure, and gout. (Tr. at 195-208, 229). The Social
Security Administration (“SSA”) denied
Claimant's applications initially and upon
reconsideration. (Tr. at 19). Claimant filed a request for an
administrative hearing, which was held on March 25, 2016
before the Honorable David Thompson, Administrative Law
Judge. (Tr. at 39-75). By written decision dated May 31,
2016, the ALJ found that Claimant was not disabled as defined
in the Social Security Act. (Tr. at 16-38). The ALJ's
decision became the final decision of the Commissioner on
February 21, 2017, when the Appeals Council denied
Claimant's request for review. (Tr. at 1-7).
timely filed the present civil action seeking judicial review
pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The
Commissioner subsequently filed an Answer opposing
Claimant's complaint and a Transcript of Proceedings.
(ECF Nos. 8, 9). Claimant then filed a Brief in Support of
Judgment on the Pleadings, (ECF No. 10), and the Commissioner
responded with a Brief in Support of Defendant's
Decision. (ECF No. 11). Therefore, the matter is fully
briefed and ready for resolution.
was 34 years old at the time of his alleged onset of
disability and 36 years old at the time of the ALJ's
decision. Claimant completed high school and was trained in
automotive service technology. (Tr. at 230). He communicates
in English and previously worked as an automotive service
manager, mechanic, and food deliverer. (Tr. at 62-63, 228).
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, 775 (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(a)(4),
416.920(a)(4). The first step in the sequence is determining
whether a claimant is currently engaged in substantial
gainful employment. Id. §§ 404.1520(b),
416.920(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),
416.920(c). A severe impairment is one that
“significantly limits [a claimant's] physical or
mental ability to do basic work activities.”
Id. 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), 416.920(d). If so,
then the claimant is found disabled and awarded benefits.
if the impairment does not meet or equal a listed impairment,
the adjudicator must assess 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),
416.920(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), 416.920(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, in the fifth and final step of the process, that
the claimant is able to perform other forms of substantial
gainful activity, given the claimant's remaining physical
and mental capacities, age, education, and prior work
experiences. 20 C.F.R. §§ 404.1520(g), 416.920(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. 1976).
the ALJ determined as a preliminary matter that Claimant met
the insured status for disability insurance benefits through
December 31, 2018. (Tr. at 21, Finding No. 1). At the first
step of the sequential evaluation, the ALJ found that
Claimant had not engaged in substantial gainful activity
since the alleged onset date, October 21, 2013.
(Id., Finding No. 2). At the second step of the
evaluation, the ALJ found that Claimant had the following
severe impairments: “degenerative disc disease,
headaches (alleged migraines), and obesity.” (Tr. at
22, Finding No. 3). 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 24, 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) and 416.967(b) except limited
to occasional climbing of ramps, stairs, and ladders; no
climbing of ladders, ropes and scaffolds; occasional
stooping, kneeling, crouching and crawling; and must avoid
concentrated exposure to noise above Level IV, and fumes,
dusts, gases, unprotected heights and unprotected moving
(Tr. 24-31, Finding No. 5). At the fourth step, the ALJ found
that Claimant was unable to perform any past relevant work.
(Tr. at 31, Finding No. 6). Under the fifth and final
inquiry, the ALJ reviewed Claimant's past work
experience, age, and education in combination with his RFC to
determine his ability to engage in substantial gainful
activity. (Tr. at 31, Finding Nos. 7-10). The ALJ considered
that (1) Claimant was born in 1979 and was defined as a
younger individual on the alleged disability onset date; (2)
he had at least a high school education and could communicate
in English; and (3) transferability of job skills was not
material to the disability determination because the
Medical-Vocational Rules supported a finding that Claimant
was “not disabled, ” regardless of his
transferable job skills. (Tr. at 31, Finding Nos. 7-9). Given
these factors, Claimant's RFC, and the testimony of a
vocational expert, the ALJ determined that Claimant could
perform jobs that existed in significant numbers in the
national economy, (Tr. at 31-32, Finding No. 10), including
work as an inventory clerk, service writer, or sales employee
at the light exertional level, or personnel interviewer or
time keeper at the sedentary exertional level. (Tr. at 32).
Therefore, the ALJ concluded that Claimant was not disabled
as defined in the Social Security Act, and thus, he was not
entitled to benefits. (Id., Finding No. 11).
Claimant's Challenge to the Commissioner's
asserts that the Commissioner's decision is unsupported
by substantial evidence because the ALJ failed to properly
consider the impact of his migraine headaches. (ECF No. 10).
Specifically, Claimant contends that the ALJ's step three
analysis was conclusory and failed to identify the specific
listing to which Claimant's medical findings for his
migraine headaches should have been compared. (Id.
at 12-15). In addition, Claimant states that the ALJ's
pain analysis and credibility findings were not in compliance
with applicable regulatory and case law, because the ALJ
relied almost exclusively on objective evidence to discredit
Claimant's allegations of disabling pain and did not
demonstrate how Claimant's statements were inconsistent
with the evidence. (Id. at 6-12). Finally, within
his challenge to the credibility analysis, Claimant contends
that “the ALJ declined to provide any limitations in
[Claimant's] RFC assessment that related to the obvious
absenteeism or the need for additional rest breaks that would
occur as a result of [Claimant's] migraine headache
episodes.” (Id. at 12).
response to Claimant's arguments, the Commissioner argues
that the ALJ complied with all applicable laws, provided an
exemplary pain and credibility analysis, and thoroughly
analyzed all of the evidence concerning Claimant's
migraine headaches. (ECF No. 11).
undersigned has considered all of the evidence of record,
including documentation of medical examinations, treatment,
evaluations, and statements. The information that is most
relevant to Claimant's challenge is summarized as
January 2011, several years prior to Claimant's alleged
onset of disability and while he was still employed,
Claimant's primary care provider, Amado Gabriel Maijub,
M.D., Ph.D., referred him to PARS Neurosurgical Associates,
Inc. (“PARS”) for an evaluation of headaches,
which reportedly began three weeks earlier. (Tr. at 505).
During Claimant's subsequent visit with Dr. Maijub a few
months later on March 22, 2011, migraine headaches were
included in Claimant's list of complaints and assessed
conditions, but Claimant denied having a headache at the time
of the visit. (Tr. at 308-09). He was alert, fully oriented,
and in no acute distress. (Id.). His mental status
and eye movements were normal. (Id.). Dr. Maijub
prescribed Topamax to treat Claimant's headaches. (Tr. at
returned to PARS for follow-up on March 28, 2011. He advised
nurse practitioner, Sheena Geer, that his symptoms had
improved 50 to 75 percent. He had suffered only two migraines
since his initial appointment in January. (Tr. at 510).
Claimant continued to take Topamax. (Id.).
December 20, 2011, Claimant saw a neurologist, Jay A.
Bauerle, M.D. Claimant reported ongoing headaches, but stated
that he had them only once or twice a week as compared to the
daily headaches that he previously experienced. (Tr. at 539).
Claimant was taking Topamax twice per day, which was reducing
the frequency of his headaches, and he was taking Imitrex at
the onset of a headache, which was effective for acute
treatment. (Tr. at 539, 541). Claimant noted that medication
resolved his headaches in approximately one hour. (Tr. at
539). He added that numbness and tingling in his fingers and
toes, which were a side effect of Topamax, had much improved.
(Id.). On his review of systems, Claimant reported
headaches, but denied vision issues, dizziness, nausea,
vomiting, weakness, or difficulty with memory or
concentration. (Tr. at 540-41). Dr. Bauerle's
differential diagnosis included migraines without aura,
mention of intractable migraine, or status migrainosus (a
headache lasting more than 72 hours). (Tr. at 541). Claimant
was continued on Topamax and Imitrex. (Id.).
saw Dr. Maijub again on April 17, 2012. He denied having a
headache; was alert, fully oriented, and in no acute
distress; and his mental status and eye movements were
normal. (Tr. at 453-54). The following month, on May 7, 2012,
Claimant again followed-up at PARS. On a review of systems,
Claimant reported headaches, but denied double vision or
other vision issues, dizziness, nausea, vomiting, loss of
balance, lack of concentration, or memory difficulties. (Tr.
at 516). His headaches were improving. (Tr. at 517).
next saw Dr. Bauerle on June 12, 2012. Claimant still
reported having headaches once or twice per week that
resolved in approximately one hour after taking medication.
(Tr. at 543). He reported photophobia, but denied vision
changes, dizziness, nausea, vomiting, weakness, difficulties
with memory, or lack of concentration. (Tr. at 543-45). He
reported a small decrease in headache frequency and intensity
with an increased dosage of Topamax. (Tr. at 543). Claimant
also stated that one dose of Imitrex was generally effective
as an abortive treatment. (Id.). Claimant denied
having any difficulty or intolerance with either medication.
(Id.). Although Claimant showed some improvement,
Dr. Bauerle felt that Claimant's reported migraines were
still too frequent. (Tr. at 545). Thus, he increased
Claimant's dosage of Topamax and advised him to take
Aleve in conjunction with Imitrex for acute headaches. (Tr.
August 8, 2012, Claimant saw physician's assistant, Brian
P. Showalter, at PARS. (Tr. at 520). Claimant's headaches
were still improving. (Tr. at 520, 522). His gait was normal,
without suggestion of weakness, and he did not grimace or
show obvious signs of pain. (Tr. at 522). Similarly, at his
October 3, 2012 visit with Dr. Maijub, Claimant denied having
a headache, was alert, fully oriented, and in no acute
distress. (Tr. at 297). Claimant followed up with Dr. Bauerle
later in the year on December 11, 2012. (Tr. at 547). The
frequency of his headaches had reduced to a severe headache
every other week as opposed to his prior reports of one to
two headaches per week. (Id.). Claimant was taking
Topamax daily and Imitrex as needed. (Id.). He
stated that Imitrex alleviated his headaches, and he denied
symptoms of photophobia, phonophobia, nausea, dizziness, loss
of balance, or vision disturbances. (Id.).
Nonetheless, given that Claimant continued to have headaches,
Dr. Bauerle again increased Claimant's dosage of Topamax.
(Tr. at 549).
saw Dr. Maijub on May 1, 2013. Like his prior visits, his
list of complaints and assessed conditions included
headaches, although he denied having a headache at the time
of the visit and was alert, fully oriented, and in no acute
distress. (Tr. at 294). The following month, on June 11,
2013, Claimant saw Dr. Bauerle. (Tr. at 551). Claimant
reported three to four headaches per month, as opposed to his
previous report of four to eight headaches per month and
noted that he was taking his medications without difficulty.
(Id.). Claimant stated that he vomited once since
his last visit. (Id.). Claimant's diagnosis
remained the same, but because he was still requiring Imitrex
for acute headaches on a fairly frequent basis, Dr. Bauerle
again increased Claimant's dosage of Topamax. (Tr. at
553). Claimant was accompanied by his wife and children at
the visit; he was in no acute distress, with normal attention
and gait; and his affect was appropriate. (Tr. at 551, 553).
15, 2013, Claimant saw Mr. Showalter at PARS. Claimant
reported that he was still having severe headaches, but they
were tolerable with medication. (Tr. at 524). On a review of
systems, Claimant reported dizziness and lightheadedness, but
denied loss of balance. (Tr. at 526). Claimant was
neurologically intact, and his brain MRI was stable. ...