United States District Court, N.D. Texas, Abilene Division
REPORT AND RECOMMENDATION
SCOTT FROST, UNITED STATES MAGISTRATE JUDGE.
to 42 U.S.C. § 405(g), Plaintiff/Claimant seeks judicial
review of a decision of the Commissioner of Social Security
("Commissioner") denying her application for
Disability Insurance Benefits ("DIB") under Title
II of the Social Security Act and Supplemental Security
Income ("SSI") under Title XVI of the
See Compl. (doc. 1). The Commissioner has filed an
answer, see Def.'s Answer (doc. 10), and a
certified copy of the transcript of the administrative
proceedings, see SSA Admin. R. [hereinafter
"R."] (doc. 12), including all hearings before the
Administrative Law Judge ("ALJ"). The parties have
briefed the issues. See PL's Mem. (doc. 15);
Comm'r's Br. (doc. 16). The United States District
Judge referred the case to the undersigned pursuant to 28
U.S.C. § 636 and the parties have not consented to
proceed before a United States Magistrate Judge. After
considering the pleadings, briefs, and administrative record,
the undersigned recommends that the Court affirm the
filed applications for DIB and SSI in December 2012 and May
2013, respectively, alleging disability beginning August 1,
2011. R. 196-99. She claimed to be disabled due to various
physical and mental impairments. R. 216. As calculated by the
ALJ, her date of last insured ("DLI") is December
31, 2013. See R. 13, 15. Therefore, the most
relevant time period for her applications and the Court's
review commenced August 1, 2011, and continued through
December 2013. Nevertheless, medical records from outside
that period remain relevant to the extent they are indicative
of Plaintiffs physical or mental condition during that period
Commissioner denied the applications initially and on
reconsideration. See R. 112, 118-19, 122, 126-27. On
June 24 and December 15, 2014, Administrative Law Judge
("ALJ") William H. Helsper held hearings on
Plaintiff s claims. See R. 30-68. On February 26,
2015, the ALJ issued an unfavorable decision finding that
Plaintiff was not disabled and was capable of performing her
past relevant work. R. 13-24. Applying the sequential,
five-step analysis set out in the regulations (20 C.F.R.
§§ 4O4.l52O(a)(4), 4l6.92O(a)(4)) the ALJ first
determined that Plaintiff had not engaged in substantial
gainful activity since the alleged onset date. R. 14-15. The
ALJ next determined that Plaintiff suffers from the following
severe impairments: fibromyalgia, degenerative disc disease,
sacroiliitis, arthritis, and chronic pain syndrome. R. 16-18.
He found a migraine headache impairment non-severe. R. 16.
Third, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or equaled
the severity of any impairment in the listings. R. 18-19.
then determined that Plaintiff retained the residual
functional capacity ("RFC") to perform medium work as
defined in 20 C.F.R. §§ 404.1567(c),
416.967(c). R. 19-23. Given her severe impairments,
she could perform "detailed but not complex tasks."
R. 19. The ALJ found that Plaintiff could (1) lift/carry
twenty-five pounds frequently and fifty pounds occasionally;
(2) stand or walk up to six hours; and (3) sit for that same
amount of time in an eight-hour workday. Id.
upon the RFC determination and testimony from a vocational
expert ("VE") about the exertional demands and
skill requirements of Plaintiff s prior jobs, the ALJ
concluded that Plaintiff could perform her past relevant work
as a nurse aide. R. 23. At Step 4 of the sequential analysis,
the ALJ found that Plaintiff was not disabled within the
meaning of the Social Security Act between August 1, 2011,
and the date of the ALJ's decision. See R. 24.
Appeals Council received and considered an attorney brief
(Ex. 2OE) when it denied review on July 25, 2016.
See R. 1-4. The ALJ's decision is the
Commissioner's final decision and is properly before the
Court for review. See Higginbotham v. Barnhart, 405
F.3d 332, 334 (5th Cir. 2005) (stating that the
Commissioner's final decision "includes the Appeals
Council's denial of [a claimant's] request for
commenced this social security appeal on September 23, 2016.
See Compl. She presents three issues for review.
See PL's Mem. at 4.
general,  a person is disabled within the meaning of
the Social Security Act, when he or she is unable "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
twelve months." 42 U.S.C. §§ 423(d)(1)(A),
l382c(a)(3)(A). '"Substantial gainful activity'
is work activity involving significant physical or mental
abilities for pay or profit." Masterson v.
Barnhart, 309 F.3d 267, 271 n.2 (5th Cir. 2002) (citing
20 C.F.R. § 404.1572(a)-(b)); accord 20 C.F.R.
§ 4l6.972(a)-(b). To evaluate a disability claim, the
Commissioner employs the previously mentioned
five-step sequential analysis to determine whether (1) the
claimant is presently working; (2) the claimant has a severe
impairment; (3) the impairment meets or equals an impairment
listed in appendix 1 of the social security regulations; (4)
the impairment prevents the claimant from doing past relevant
work; and (5) the impairment prevents the claimant from doing
any other substantial gainful activity.
Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir.
2007). If, at any step, the Commissioner determines that the
claimant is or is "not disabled, the inquiry is
terminated." Id. at 448. The Commissioner must
assess the claimant's RFC before proceeding to Steps 4
and 5. Perez v. Barnhart, 415 F.3d 457, 461 (5th
Cir. 2005). For Steps 1 through 4, the claimant has the
burden to show disability, but the Commissioner has the
burden at Step 5 to "show that there is other
substantial work in the national economy that the claimant
can perform." Audler, 501 F.3d at 448. If the
Commissioner carries that Step 5 burden, "the burden
shifts back to the claimant to rebut th[e] finding" that
he or she can perform other work that is available in the
national economy. Newton v. Apfel, 209 F.3d 448, 453
(5th Cir. 2000).
review of the Commissioner's decision to deny benefits is
limited to determining whether that decision is supported by
substantial evidence and whether the proper legal standards
are applied." Sun v. Colvin, 793 F.3d 502, 508
(5th Cir. 2015) (quoting Boyd v. Apfel, 239 F.3d
698, 704 (5th Cir. 2001)). "Substantial evidence is
'such relevant evidence as a reasonable mind might accept
to support a conclusion' and constitutes 'more than a
mere scintilla' but 'less than a preponderance'
of evidence." Hardman v. Colvin, 820 F.3d 142,
147 (5th Cir. 2016) (quoting Newton, 209 F.3d at
452). "In applying the substantial evidence standard,
the court scrutinizes the record to determine whether such
evidence is present, but may not reweigh the evidence or
substitute its judgment for the Commissioner's."
Perez, 415 F.3d at 461. The courts neither "try
the questions de novo" nor substitute their
"judgment for the Commissioner's, even if [they]
believe the evidence weighs against the Commissioner's
decision." Masterson, 309 F.3d at 272. The
Commissioner resolves conflicts of evidence. Sun,
793 F.3d at 508.
appeal raises the following issues: (1) whether the ALJ
properly considered Claimant's migraine headaches in
accordance with policy of the Social Security Administration
("SSA"); (2) whether the ALJ erred in considering
opinions of Roberta Kalafut, M.D., an agency examining
physician; and (3) whether the ALJ properly considered
opinions of Claimant's treating physician, Henry Fosah,
M.D. See PL's Mem. at 4.
2, the ALJ found five severe impairments, but found
Claimant's migraine headaches non-severe because (1) she
was only prescribed pain medication; (2) she "received
little treatment for migraine headaches during the relevant
period"; and (3) September 2013 diagnostic images were
normal. R. 16. Claimant argues that, by finding her
migraines non-severe, the ALJ erred under unambiguous SSA
policy as set out in SSR 96-3p,  SSR 85-28,  and Stone
v. Heckler, 752 F.2d 1099 (5th Cir. 1985). PL's Mem.
1985, the SSA issued a statement to clarify its policy for
determining when an impairment may be found not severe.
SeeSSR85-28, 1985 WL 56856, at* 1-2. SSR 85-28 set out the
following guidance on non-severity of impairments at Step 2:
An impairment or combination of impairments is found
"not severe" and a finding of "not
disabled" is made at this step when medical evidence
establishes only a slight abnormality or a combination of
slight abnormalities which would have no more than a minimal
effect on an individual's ability to work even if the
individual's age, education, or work experience were
specifically considered (i.e., the person's impairments)
has no more than a minimal effect on his or her physical or
mental ability(ies) to perform basic work activities).
Id. at *3. Some courts describe this standard as the
"minimal effect" standard. Mills v.
Berryhill, No. 4:16-CV-0331-Y-BL, 2017 WL 3972009, at *7
(N.D. Tex. Aug. 3, 2017) (recommendation of Mag. J.)
adopted by 2017 WL 3891391 (N.D. Tex. Sept. 6,
2017). "With minor linguistic or semantic variations,
SSR 96-3p uses the same minimal effect standard as SSR
85-28." Id. at *8. While there are cases to the
contrary, the minimal effect standard satisfies Stone.
See Id. at *9 (addressing issue and considering contrary
has a documented history of headaches beginning in 2006. On
April 24, 2006, Claimant visited the emergency room of
Hendrick Medical Center ("ER") complaining of a
"migraine" following an assault. R. 579-80. The
physician characterized the headache as severe. See
R. 580. In December 2006, Claimant complained of a headache
and received medication. R. 567, 571. The next month, her
chief complaint was a congested headache and the ER noted
"migraines" as a chronic problem. R. 561. At this
ER visit, symptoms included nausea, blurred vision, and light
sensitivity. R. 562. Records of Abilene Diagnostic Clinic
("Clinic") show migraine diagnoses in March,
September, and October 2007. See R. 429-30, 33 (Code
346.20). In October 2007, the ER also treated her for a
chronic migraine headache and prescribed Toradol. R. 865-66.
February 2008, Claimant complained of a headache lasting a
week and the ER again listed migraines as a chronic problem.
R. 853. The Clinic's records show diagnoses of tension
headaches in February and April 2008. See R. 424-26
(Code 307.81). The April 2008 record states that
"amitriptyline is helping her headaches." R. 424.
On July 18, 2008, Claimant complained about a two-day sinus
headache resulting in a migraine diagnosis (Code 346.20) and
a diagnosis of tension headache (Code 307.81). R. 421. In
September 2008 and November 2009, Claimant was positive for
headaches. R. 778-79, 825-28. Additionally, in January 2011,
while receiving treatment for pregnancy-induced hypertension,
she was positive for mild headaches. R. 523.
foregoing medical records clearly reflect a history of
headaches, including migraines, before Claimant's alleged
date of onset of disability on August 1, 2011. Prior to that
date, the medical record also contains numerous entries that
either do not mention headaches or specifically state
headaches were not present. Similarly, the medical record