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Stahl v. Berryhill

United States District Court, N.D. Texas, Abilene Division

March 2, 2018

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         Pursuant 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 Act.[2] 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 Commissioner's decision.

         I. BACKGROUND

         Plaintiff 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 of time.

         The 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))[3] 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.[4] R. 18-19.

         The ALJ then determined that Plaintiff retained the residual functional capacity ("RFC")[5] to perform medium work as defined in 20 C.F.R. §§ 404.1567(c), 416.967(c).[6] 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.

         Based 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.

         The 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 review").

         Plaintiff commenced this social security appeal on September 23, 2016. See Compl. She presents three issues for review. See PL's Mem. at 4.


         In general, [7] 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).

         "Judicial 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.

         III. ANALYSIS

         This 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.

         A. Migraine Headaches

         At Step 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.[8] Claimant argues that, by finding her migraines non-severe, the ALJ erred under unambiguous SSA policy as set out in SSR 96-3p, [9] SSR 85-28, [10] and Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985). PL's Mem. at 5.

         In 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 cases).

         Claimant 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.

         In 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).[11] 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.

         The 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.[12] Similarly, the medical record contains ...

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