Opinion
Civil Action 1:21-cv-855
07-25-2022
EILEEN RUTH TYSON, Plaintiff, v. KILOLO KIJAKAZI,[1]Acting Commissioner of Social Security, Defendant.
BRANN, C.J.
REPORT AND RECOMMENDATION
PETER E. ORMSBY UNITED STATES MAGISTRATE JUDGE
Plaintiff Eileen Ruth Tyson filed this action pursuant to 42 U.S.C. § 405(g), seeking review of the Commissioner of Social Security's denial of disability insurance benefits (DIB). Tyson alleges she became disabled due to chronic migraine headaches and low back problems. An Administrative Law Judge (ALJ) found that Tyson is not disabled because she can perform certain light duty jobs. Tyson claims the ALJ erred in several ways, including by ignoring Social Security Ruling (SSR) 19-4p and thereby failing to consider whether her migraine headache impairment is equivalent to Listing 11.02, which is one of the disabling impairments listed in the Commissioner's regulations.
In considering challenges to the Commissioner's denial of benefits, a federal court applies “a deferential standard of review.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). After carefully considering the parties' briefing and the record, the undersigned concludes that the ALJ erred in failing to make findings sufficient to determine whether Tyson's migraine impairment is equivalent to Listing 11.02B. The absence of such findings prevents meaningful judicial review on that issue. Accordingly, for the reasons discussed further below, it is recommended that the Commissioner's decision be vacated and remanded.
This matter has been referred to the undersigned magistrate judge to prepare a report and recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.
I. BACKGROUND
On July 13, 2018, Plaintiff Eileen Ruth Tyson applied for DIB under Title II of the Social Security Act. (See Tr. 113-19.) Tyson was 50 years old as of the alleged disability onset date, May 15, 2018. She listed three conditions that limited her ability to work: 1) “severe migraines”; 2) “degenerative disc disease in lower spine”; and 3) “sciatica.” (Tr. 158.) Tyson had been treated for migraine headaches since at least December 2014.
The Commissioner has filed a transcript of the record of the administrative proceedings (Doc. 10), which will be cited as “Tr.” The page numbers refer to the numbers in bold typeface located in the bottom right corner of the transcript pages. Throughout this report, “Doc. ” refers to the docket entry numbers assigned by the Court's electronic filing system (CM/ECF). Page cites included with docket numbers (“at ”) refer to the electronically assigned page numbers found on the top right of each page.
Tyson's application was denied initially on January 17, 2019. She then requested a hearing, which was held on October 8, 2019, before ALJ Paula Garrety. The ALJ issued a decision on November 15, 2019, finding that Tyson was not disabled because she can perform a limited range of light work that encompassed jobs existing in significant numbers in the national economy. (Tr. 15-29.)
Tyson requested the Social Security Administration's Appeals Council to review the ALJ's adverse decision. The Appeals Council denied review, rendering the ALJ's decision the Commissioner's final decision for purposes of judicial review. In considering Tyson's challenge to the ALJ's decision, the evidence in the record will be summarized as it relates to the issues raised.
The Court must “scrutinize” the record to determine whether the ALJ's decision is supported by substantial evidence. Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003) (citing Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981)). The undersigned has reviewed the relevant medical records and other evidence. In this report, the record will be summarized to the extent it may be helpful in providing context for Plaintiff's argument that the ALJ erred at step three in finding that her migraines did not meet or equal a listing.
A. Education, Work Experience, and Activities
Tyson is a high school graduate. From 1998 to 2008, she owned and operated a convenience store. After selling the store, Tyson worked at various jobs through February 22, 2019, when she stopped working. Those jobs included work as a bartender, manager at a nursing home, and cashier at a store. (See Tr. 176.) When she filed her DIB application, Tyson was working part-time at a store. (Tr. 200.) Her employer later asked her to quit her job because she was often in the breakroom and unable to work due to pain from her migraines. (See Tr. 41-42.)
In support of her disability application, Tyson submitted a “Function Report.” (Tr. 168-75.) In describing the conditions that limit her ability to work, Tyson stated: “I get severe migraines almost daily. Fluorescent lighting & smells & noise can bring a headache on in minutes.” (Tr. 168.) Her headaches cause severe pain in her head; she gets tunnel vision or double vision; and they can make her nauseous. (Id.) She also gets severe pain in her back and down her left arm and leg. (Id.) Tyson reported she can walk “only a few minutes” before needing to stop and rest, and she can pay attention for about half an hour-if she is “having a good day.” (Tr. 173.)
Tyson's daily activities include trying to make dinner for her husband and putting the dishes in the dishwater. (Tr. 169.) She also takes care of her pets. She can dress and bath herself, but she sometimes has difficulties with certain personal care tasks. Although she used to run and play, she can no longer do those things due to “too much pain.” (Tr. 172.)
B. The Medical Evidence
Although Tyson's medical records reflect treatment she has received for back problems and other issues, her challenge to the ALJ's decision focuses exclusively on her migraine headache impairment. (See Doc. 11 at 5.) It is thus not necessary to describe her medical treatment for back problems, other than to note that the treatment she received for back pain often overlapped with treatment for her headache pain. Tyson's medical treatment for her migraine headaches is relevant to the listing issue (discussed later) and will be summarized.
Beginning sometime before December 2014, Tyson was treated for headache and back pain by Paul Horchos, D.O. (See Tr. 577-78.) Dr. Horchos's treatment notes from Tyson's examination on December 12, 2014, reflects that she was returning “for a follow-up evaluation regarding her neck and back pain, and also her headache based pain.” (Tr. 577.) Tyson reported “significant pain in her cervical spine and also into her forehead region, consistent with the ongoing headache based pain.” (Tr. 578.) Dr. Horchos noted the “[m]edications we have had her on have just not been sufficient for controlling her headache based pain.” (Id.) He talked with her about the “possible use of Zonisamide,” but decided instead to try her on Keppra to “see if that is beneficial for her migraine headaches without causing significant neurocognitive impairment or suppression.” (Id.) Tyson was “agreeable with [that] plan of action.” (Id.)
That was in 2014. Dr. Horchos's medical reports reflect that he continued to provide Tyson with pain management treatment over the next five years. (See Tr. 577-652.) During that time, Tyson consistently complained of frequent headache and back pain. Over those years, Dr. Horchos tried different approaches to relieving Tyson's pain, including a series of Botox injections. He also prescribed multiple medications, often involving medicines to be taken in combination with others. Dr. Horchos frequently noted that Tyson was agreeable to his recommended treatment plan.
Despite those various treatments, Tyson continued to experience headache and back pain. During her follow up visit with Dr. Horchos on September 25, 2018, she expressed “frustrat[ion] that the headaches and the lower back discomfort persist.” (Tr. 637.) Having exhausted other treatment options, Dr. Horchos referred Tyson to “Dr. Michael Kim for further high-level migraine evaluation and treatment.” (Tr. 638.)
Dr. Kim is a neurologist. He first saw Tyson on November 5, 2018. (Tr. 56062.) Tyson reported she had experienced chronic headaches since 1996. Dr. Kim noted that she “has tried and failed multiple medications.” (Tr. 560.) He listed eight “current” medications that had been prescribed. (Id.) Dr. Kim found that Tyson had “[l]imited therapeutic options,” and he referred her to a migraine headache specialist. (Tr. 561.) Dr. Kim also added to Tyson's long list of medications by prescribing another one: Methylprednisolone. (Id.) His “neurology consultation” report was addressed to Dr. Horchos, which was consistent with Dr. Horchos's referral of his patient to Dr. Kim. (Tr. 560.)
About two weeks after Tyson saw Dr. Kim, she visited Marielle Stone, M.D., who performed a consultative examination at the request of the state agency initially evaluating Tyson's disability claim. (Tr. 373-85.) Dr. Stone's diagnosis included “frequent” migraines, chronic low back pain, and lumbar spine degenerative disc disease. (Tr. 376.) Dr. Stone also completed a “Medical Source Statement of Ability to Do Work-Related Activities.” (Tr. 377-81.)
On December 6, 2018, a state agency medical consultant, Angela Walker, M.D., reviewed and evaluated Tyson's medical records and performed a physical residual functional capacity assessment. (See Tr. 61-69.) Dr. Walker's opinion was not mentioned by the ALJ and has not been discussed by the parties.
Shortly after Tyson's visit with Dr. Stone, she had a follow up visit with Dr. Horchos on November 26, 2018. (Tr. 639-640.) Dr. Horchos's report notes that Tyson was recently seen by Dr. Kim, who concluded “that the patient has really gone through all of the treatment modalities that are typically utilized for migraine headaches without significant benefit.” (Tr. 639.) For that reason, Dr. Kim referred Tyson to a headache specialist. (Id.) Meanwhile, Dr. Horchos continued to treat Tyson for her headache and back pain. Dr. Horchos found she “requires continued use of pain medications,” including Fentanyl patches, Oxycodone, Cymbalta, Neurontin, and Zanaflex “as currently prescribed.” (Tr. 640.)
In December 2018, Tyson received another round of Botox injections. (Tr. 641-42.) During her follow up visit with Dr. Horchos on January 29, 2019, she reported some benefit from the injections, although she continued to have headache and back pain. (Tr. 643-44.) Dr. Horchos prescribed a new medication, Propanolol, “to see if that could help reduce some of the residual headache based pains.” (Tr. 644.) He also continued her on other medications, including Oxycodone and Fentanyl. (Id.) Dr. Horchos found those medications “to be appropriate” and noted that Tyson's “SOAPP [Screener and Opioid Assessment for Patients with Pain] evaluation is also consistent with reasonable narcotic risk.” (Id.)
Tyson saw Dr. Kim for “a routine neurology follow-up” on February 13, 2019. (Tr. 563-65.) She was “not doing well.” (Tr. 563.) Her headaches had “progressively worsened” and she was having “daily headaches”; she was “anxious and tearful” during the exam. (Tr. 563-64.) Dr. Kim again noted that Tyson had “tried and failed multiple medications,” and he again suggested that Tyson consult with a headache specialist. (Id.) However, his report included a new assessment: “Headache pattern change; complicated by medication overuse.” (Tr. 564.) He suggested Tyson was having “[d]rug-induced headache” caused by “[a]nalgesic rebound, medication overuse.” (Tr. 565.) Dr. Kim recommended that she “[d]iscontinue short-acting NSAID, Advil, Tylenol, etc.” (Id.) He also recommended that Tyson “[f]ollow-up with pain management, Dr. Horchos.” (Id.) As with his prior report, Dr. Kim addressed his neurology progress notes to Dr. Horchos. (Tr. 563.)
Consistent with Dr. Kim's recommendation, on April 1, 2019, Tyson visited the Geisinger Headache Center and was seen by Sana Ghafoor, M.D. (Tr. 9941007.) Dr. Ghafoor reviewed Tyson's history of migraines and noted eight medications/treatments she had “[p]reviously tried with no response or severe side effects.” (Tr. 994-95.) Tyson's physical examination was essentially normal. (Tr. 996-97.) Dr. Ghafoor discussed several topics with Tyson, including medication side effects, lifestyle issues (such as getting enough sleep), and “medication overuse headache (MOH) and how to avoid it in the future.” (Tr. 997.) Dr. Ghafoor explained that “all analgesics have the potential to cause . . . MOH and analgesic overuse can negate the effectiveness of headache preventive measures.” (Tr. 997.) The doctor advised Tyson to “[a]void medications with narcotics, barbiturates, or caffeine in them as these can cause rebound headaches.” (Id.) Dr. Ghafoor recommended that Tyson begin taking a new medication, Aimovig, for prevention of migraines. (Tr. 996.)
The next day, on April 2, 2019, Tyson returned for a follow up visit with Dr. Horchos. (Tr. 647-48.) She reported “ongoing migraine headaches,” with some mild improvement after her most recent Botox injections. (Tr. 647.) Dr. Horchos noted that she was “recently seen by neurology.” (Id.) Consistent with Dr. Ghafoor's recommendation, Dr. Horchos arranged for Tyson to try Aimovig “to see if that is effective for her, but currently we will continue her on her same mediations including the Fentanyl and the Oxycodone.” (Tr. 648.) As to those narcotic medications, Dr. Horchos noted that Tyson's “urine drug screens have been reviewed and found to be appropriate without red flags.” (Id.)
On May 13, 2019, Tyson visited Dr. Kim again for “a routine neurology follow-up.” (Tr. 566-68.) He noted that Tyson had seen a headache specialist at Geisinger (referring to Dr. Ghafoor) and started Aimovig on April 18, 2019. (Tr. 566.) Since then (about a month), “she has had 10 headache free days (improvement from baseline).” (Tr. 566.) On physical examination, Tyson was essentially normal. (Tr. 567.) Dr. Kim's assessment notes again include “[d]rug-induced headache,” with the comment: “Analgesic rebound, medication-overuse, headache is very difficult to treat.” (Tr. 567.) Dr. Kim also observed that Tyson “is on fentanyl, oxycodone, carbamazepine for chronic pain” and that she sees Dr. Horchos for pain management. (Tr. 566.)
Tyson went back to see Dr. Horchos on June 4, 2019. (Tr. 649-50.) She reported no “dramatic improvements with regards to her headaches.” (Tr. 649.) Dr. Horchos again noted that her “urine drug screen [was] reviewed and found to be appropriate for prescribed medications.” (Tr. 650.) Dr. Horchos continued her “on Fentanyl and Oxycodone as prescribed.” (Id.) He also noted she would “continue treatment with neurology.” (Id.)
On October 2, 2019, Tyson returned to the neurology clinic at Geisinger where she was seen by Barbara Graves, D.O. (in place of Dr. Ghafoor). (Tr. 1086-91.) Tyson reported that the Aimovig prescribed by Dr. Ghafoor had initially helped but that her headaches had since gotten worse and were occurring daily. (Tr. 1087.) Tyson requested a higher dose of Aimovig. (Id.) Dr. Graves's medical “impression” included the following:
Was started on Aimovig, which helped initially as well as frovatriptan that she reported [she] was trying not to use it every day, estimates 3 days per week. She does report hx of ? [sic] TIA vs stroke like symptoms associated with headaches for which, along with overuse, may want to hold off on triptans as PRNs. Also discussed decreased response to preventative agent may be due to MOH [medication overuse headaches] with fentanyl and oxy for back pain.(Tr. 1091.) This assessment is not easy to follow, but it appears Dr. Graves is suggesting that Tyson's use of Fentanyl and Oxycodone “may be” contributing to medication overuse headaches. Ultimately, Dr. Graves recommended an increase Tyson's Aimovig dosage and a “repeat Medrol dose pack.” (Id.)
On October 7, 2019, Dr. Horchos completed a “Medical Source Statement Regarding Headaches and Headache Pain.” (Tr. 943-47.) Dr. Horchos opined that Tyson suffers from migraine headaches that were “occurring without cause” and had been treated “without effect.” (Tr. 943.) He agreed with the statement that Tyson's frequent headaches were consistent “with all the medical and other evidence” of which he was aware. (Tr. 944.) Dr. Horchos also found that Tyson was “seriously limited” in mental workplace functions due to her headaches. (Tr. 945-46.)
As of the time of the ALJ's decision, Tyson reported that she was still taking seven medications prescribed by Dr. Horchos: Carbamazepine, Cymbalta, Fentanyl, Neurontin, Oxycodone, Chantix, and Zanaflex. (Tr. 199.)
C. The Evidentiary Hearing
The hearing was held on October 8, 2019. Two witnesses testified: Tyson and a vocational expert, Michele Giorgio. Tyson was represented by counsel.
Tyson was 51 at the time of the hearing. She is married and has three grown children. She had worked at a Tractor Supply store until February 22, 2019. Her employment there lasted about a year and three months. During her work at Tractor Supply, she was scheduled to work about 25 hours a week, with six to eight hour daily shifts. But Tyson explained that she never made it through a full shift due to headaches brought on by “the smells, the fluorescent lighting, the noise.” (Tr. 4142.) She would spend “most of [her] shift in the break room in the dark with ice packs.” (Tr. 42.) Ultimately, she was asked to quit work so someone more reliable could take her position.
During her testimony, Tyson indicated she was suffering from a migraine that day. (See Tr. 40 (“I have a migraine.”); Tr. 41 (“Oh, my God. It started yesterday.”).) The ALJ appeared to cut short her questions out of consideration for Tyson. (See Tr. 41.)
Tyson was able to respond to follow up questions from her attorney. She stated that she had headaches “at least 26 days a month” and that the headaches “last between five to 15 hours.” (Tr. 43.) The intensity level was on “average between six and eight.” (Id.) Sometimes her headaches were preceded by “sciatica or a ringing in [her] ears,” but other times they came with no warning (“like getting hit in the head with a baseball bat”). (Id.) She described an incident the week before when a headache hit while she was at the grocery store, and she had to call her husband to come and get her. (Id.)
When asked what happens during her headaches, Tyson described multiple symptoms she experiences:
• ringing in her ears;
• pain in her left eye;
• throbbing pain in the left side of her head that travels down her neck and arm to her fingers;
• “severe sciatica” that travels down her left leg into her toes;
• she becomes nauseous;
• her face falls (“resembles Bell's palsy”);
• her eyes tear and her nose runs; and
• she cannot stand the smell of food or any noise.(Tr. 44-45.) During her headaches, Tyson is “usually hiding in the dark, no TV, no noise, nothing.” (Tr. 45.) She carries an ice pack for relief when a headache hits, and she had one with her at the hearing. (Tr. 40, 42.) After a headache, she feels like she has a “hangover.” (Tr. 46.)
Tyson described the many treatments her doctors prescribed in attempting to address her migraines. (Tr. 46-48.) She had tried Botox injections, trigeminal nerve block, and multiple medications. (Tr. 46.) She was “still trying” different remedies. (Id.) This included her recent trial of Aimovig, and Tyson noted her doctor had increased the Aimovig dosage during a visit the week before the hearing. (Id.)
When asked about “overmedication headaches,” Tyson responded that the doctors “of course, you know, again they're trying . . . different medicines.” (Tr. 47.) She explained that she “was on a higher dosage of Carbamazepine which with that mixed with the opiate medication for [her] back[,] [she] was having bad dizzy spells and [they] decreased all the meds.” (Id.) Tyson felt like a “guinea pig”: “we try this new med, we'll try that new med.” (Id.) But at least twice a year, she and her doctor go through all her medications. (Tr. 48.) She described the specific side effects she experienced with each of the medications she had taken. (Tr. 48-49.) When asked about treatment for her lower back problem, Tyson explained that the doctors “feel that [her] migraines are more of an issue.” (Tr. 50.)
The vocational expert, Ms. Giorgio, described Tyson's past work as light and involving jobs that were either unskilled or semiskilled. (Tr. 55-56.) The ALJ asked Giorgio whether a hypothetical individual with the same age, education, and work history as Tyson could perform Tyson's prior work assuming also the following limitations:
[T]he individual is capable of lifting and carrying to 20 pounds, sitting up to eight hours in up to two hour increments, standing up to six hours in up to one hour increments, walking up to four hours in up to 20 minute increments[,] with no overhead reaching with the left upper extremity, and no more than occasional reaching in all other directions with the left upper extremity, jobs that do not involve climbing ladders, scaffolds, or stooping, or crawling, nor exposure to extremes of humidity, dust, odors, fumes, extremes of cold or heat, or extremely bright lights, with exposure to no more than moderate noise such as would be found for example in an office setting.(Tr. 56-57.)
Giorgio stated that the hypothetical person would be unable to perform Tyson's prior work except for the “housekeeper manager position.” (Tr. 57.) Giorgio also identified other jobs the hypothetical person could perform:
• General office clerk (with 212,000 jobs available nationally);
• Information clerk (with 86,000 jobs available nationally); and
• Interview clerk (with 101,000 jobs available nationally).(Tr. 58.) In response to questions by counsel, Giorgio testified that a person who was off task 15 percent or more of the time or who was absent four or more times a month would not be able to maintain any employment. (Tr. 58-59.)
D. The ALJ's Decision
The ALJ issued her written decision on November 15, 2019. (Tr. 15-29.) In deciding Tyson's DIB application, the ALJ applied the five-step method for evaluating disability claims. See 20 C.F.R. § 404.1520.
The five-step disability analysis will be explained further in the Standard of Review section of this report, infra Part II.A.
The ALJ first found (at step one) that Tyson had not engaged in substantial gainful activity since the alleged onset date, May 15, 2018. (Tr. 17.) In considering the severity of Tyson's impairments (step two), the ALJ determined that she had two “severe” medical impairments: “Degenerative disc disease of the lumbar spine and migraine headaches.” (Tr. 18.)
The ALJ next determined (at step three) that Tyson does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in the regulations. (Tr. 19.) In reaching this conclusion, the ALJ considered “the medical evidence against the criteria of relevant listings, including listing 1.04,” which was previously the listing for disorders of the skeletal spine (now found in Listing 1.15). (Id.) As will be discussed later in this report, see infra Part II.C, the ALJ also observed that “there is no listing for migraines” and that Tyson's migraines did not medically equal any other listing. (Id.)
Before proceeding to the next step in the disability analysis, the ALJ assessed Tyson's residual functional capacity (RFC) to do physical and mental work activities. The ALJ found that Tyson could perform “a range of light work,” with additional limitations consistent with the ALJ's hypothetical question to the vocational expert at the hearing. (Tr. 19.)
In making this finding, the ALJ “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSR 16-3p.” (Id.) As part of that assessment, the ALJ summarized Tyson's hearing testimony and other statements about her symptoms and described in some detail the medical evidence in the record. (Tr. 20-26.)
In reviewing the evidence, the ALJ described Dr. Stone's consultative examination findings and thoroughly assessed the doctor's opinion about Tyson's functional limitations arising from her migraines and back problems. (Tr. 23-24, 2627.) The ALJ found Dr. Stone's opinion “generally persuasive.” (Tr. 26.) The ALJ summed up her review and assessment of the evidence by finding
that the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms. However, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not accepted to the extent and for the reasons explained in this decision.(Tr. 26.)
Next, the ALJ found (at step four) that Tyson “is unable to perform any past relevant work.” (Tr. 27.) In considering whether Tyson could perform any type of work (step five), the ALJ relied on the testimony of the vocational expert to find that Tyson could perform several jobs that exist in significant numbers in the national economy. (Tr. 27-28.) From this, the ALJ concluded that Tyson is not disabled.
E. Request for Judicial Review
As noted earlier, Plaintiff sought administrative review of the ALJ's decision. After the Appeals Council denied that request, Plaintiff filed the instant action seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). (Doc. 1.) The issues raised by Plaintiff have been briefed by the parties and will be analyzed in light of the applicable standard of review. (Doc. 11, 16, 18.)
II. ANALYSIS
A. Standard of Review
To qualify for benefits under the Social Security Act (the “Act”), Plaintiff bears the burden of proving she is disabled. 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require.”); see also Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (noting the claimant's “burden to produce evidence supporting her disability claim”). The Act defines disability as the “inability 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). A “physical or mental impairment” is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. at § 423(d)(3).
To determine whether a claimant is disabled within the meaning of the Act, the Commissioner applies the following five-step inquiry:
(1) whether the claimant is currently working in substantial gainful employment;
(2) whether the claimant suffers from a severe impairment;
(3) whether the claimant's severe impairment is sufficient under the pertinent regulations (“listings”) to support a finding of disability;
(4) whether the claimant is capable of returning to his or her past relevant work; and, if not,
(5) whether the impairment prevents the claimant from doing any other work.See 20 C.F.R. § 404.1520.
At steps one through four, the burden of proof is on the claimant to show that she is disabled. Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). If the claimant satisfies this responsibility, the burden then shifts to the Commissioner at step five of the process to show there is other gainful employment the claimant can perform despite her existing impairments. Id.
In this case, the ALJ applied the five-step evaluation process and found at step five that Tyson was not disabled because she could perform jobs existing in significant numbers in the national economy. The issues Tyson raises principally challenge the ALJ's step three finding and her RFC determination.
A federal court's review of the Commissioner's final decision is limited to determining whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence. See Chandler, 667 F.3d at 359. As the Supreme Court has emphasized, substantial evidence review is deferential:
Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). In applying this standard, “[c]ourts are not permitted to re-weigh the evidence or impose their own factual determinations.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2008) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Although the substantial evidence standard is deferential, this does not mean a court may accept unsupported or unexplained findings. For meaningful judicial review to occur, the Third Circuit “requires an ALJ to set forth the reasons for his decision.” Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000) (citing Cotter v. Harris, 642 F.2d 700, 704-06 (3d Cir. 1981)). The “ALJ must consider all evidence before him” and “must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence.” Burnett, 220 F.3d at 12122 (citing Plummer v. Apfel, 186 F.3d 422, (3d Cir. 1999) and Cotter, 642 F.2d at 705) (holding that the ALJ erred in failing to mention and explain contradictory medical and non-medical evidence). Although an ALJ need not “use particular language or adhere to a particular format in conducting his analysis,” the ALJ must ensure “sufficient development of the record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).
B. Issues
In seeking review of the Commissioner's denial of benefits, Plaintiff asserts that the ALJ's decision was not supported by substantial evidence because she erred in three ways:
1) failing to “develop the record by not having a medical expert testify regarding whether Plaintiff[']s chronic headache impairments equaled Listing 11.02(B)(D) . . . pursuant to . . . SSR 19-4p”;
2) failing to properly evaluate the opinion of Dr. Horchos; and
3) failing to adequately consider the statement of Plaintiff's husband.(Doc. 11 at 13-14; see also Doc. 18.) In responding to these claims, the Commissioner contends that they lack merit and that the ALJ's decision should be affirmed because it is supported by substantial evidence. (Doc. 16.) For the reasons that follow, only Plaintiff's first issue-addressing the ALJ's step three findings- needs to be addressed.
C. Step Three Listings Analysis
Plaintiff contends that substantial evidence does not support the ALJ's step three analysis because she did not consider Listing 11.02 in accordance with SSR 19-4p and did not obtain evidence from a medical expert to guide her in applying Listing 11.02. (See Doc. 11 at 13-16.) The Commissioner acknowledges and attempts to refute the argument “that the ALJ's finding that her migraines did not medically equal listing-level severity is not supported by substantial evidence and that the ALJ should have developed the record further.” (Doc. 16 at 14-21.)
At step three of the disability analysis, the ALJ considers whether the combination of the claimant's medically determinable impairments meets or is equal to one of the impairments listed in 20 C.F.R., Pt. 404, Subpt. P, Appx. 1 (“listings”). 20 C.F.R. §404.1520(a)(4)(iii). If a claimant has an impairment that meets the twelve-month duration requirement and meets or equals all the criteria of a listing, the claimant is found disabled. 20 C.F.R. §404.1520(a)(4)(iii).
However, to qualify for benefits by showing that an impairment (or combination of impairments) is equivalent to a listed impairment, the claimant bears the burden of presenting “medical findings equal in severity to all the criteria for the one most similar listed impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (emphasis in original; citations omitted). An impairment, no matter how severe, that meets or equals only some of the criteria for a listed impairment is not sufficient. Id.
Here, the ALJ found that Tyson does not have an impairment or combination of impairments that meets or medically equals any of the listings. Regarding Tyson's migraine headache impairment, the ALJ stated: “There is no listing for migraines in the Listing of Impairments, and the evidence of record does not show that the claimant's migraines medically equal the criteria of a listing, or that her migraines cause her lumbar degenerative disc disease to meet or medically equal the criteria of a listing.” (Tr. 19.)
The ALJ's decision did not refer to or cite SSR 19-4p, which addresses how headache disorders are evaluated in disability claims. As described in SSR 19-4p, migraines are included among the category of “primary headache disorders,” which means they “occur independently and are not caused by another medical condition.” SSR 19-4p, 2019 WL 4169635, at *3. The medical community diagnoses migraines and other primary headaches “only after excluding alternative medical and psychiatric causes of a person's symptoms.” Id. at *4. “Migraines are vascular headaches involving throbbing and pulsating pain caused by the activation of nerve fibers that reside within the wall of brain blood vessels traveling within the meninges (the three membranes covering the brain and spinal cord).” Id. at *3.
In fairness to the ALJ, and as she pointed out, Tyson did not argue that her migraines met or medically equaled a listing. (Tr. 19.) Also, SSR 19-4p became effective on August 26, 2019, which was only about three months before the ALJ's decision. See SSR 19-4p, 2019 WL 4169635.
Courts have recognized that migraines cannot be diagnosed by objective medical testing. See, e.g., Means v. Colvin, No. 2:15-CV-01107-TFM, 2016 WL 3386814, at *5 (W.D. Pa. June 20, 2016) (“Brain scans and physical examinations cannot detect migraine headaches.”) (citing cases). Here, an MRI of Tyson's brain taken on February 20, 2019, was found to be “unremarkable.” (Tr. 645.) But this does not suggest that Tyson does not suffer from migraines. If anything, it tends to exclude other causes for Tyson's headaches and thus supports her doctors' diagnosis of migraines. Dr. Horchos found that Tyson's headaches were “migraines,” noting that “[t]hey are occurring without cause.” (Tr. 943.)
SSR 19-4p explains how primary headache disorders, like migraines, are evaluated at step three. While a primary headache disorder is not a listed impairment, it may, “alone or in combination with another impairment(s), medically equal[] a listing.” 2019 WL 4169635, at *7. The “most closely analogous listed impairment” for a primary headache disorder is found in Listing 11.02, addressing epilepsy. Id. “While uncommon, a person with a primary headache disorder may exhibit equivalent signs and limitations to those detailed in listing 11.02 (paragraph B or D for dyscognitive seizures),” which may result in a finding that the claimant's primary headache disorder “medically equals the listing.” Id. Thus, an ALJ should look to Listings 11.02B and 11.02D in assessing whether a claimant's migraine headache impairment medically equals a listing.
Listing 11.02B describes dyscognitive seizures “occurring at least once a week for at least 3 consecutive months . . . despite adherence to prescribed treatment.” 20 C.F.R. Part 404, Subpart P, App.1, § 11.02B (internal citations omitted). In deciding whether a claimant's migraines are equal in severity and duration to the criteria in 11.02B, an ALJ may also consider the following additional factors:
[a] detailed description from an [acceptable medical source] of a typical headache event, including all associated phenomena (for example, premonitory symptoms, aura, duration, intensity, and accompanying symptoms); the frequency of headache events; adherence to prescribed treatment; side effects of treatment (for example, many medications used for treating a primary headache disorder can produce drowsiness, confusion, or inattention); and limitations in functioning that may be associated with the primary headache disorder or effects of its treatment, such as interference with activity during the day (for example, the need for a darkened and quiet room, having to lie down without moving, a sleep disturbance that affects daytime activities, or other related needs and limitations).SSR 19-4p, 2019 WL 4169635, at *7.
Listing 11.02D requires seizures “occurring at least once every 2 weeks for at least 3 consecutive months . . . despite adherence to prescribed treatment,” along with “a marked limitation in one of the following”:
1. Physical functioning; or
2. Understanding, remembering, or applying information; or
3. Interacting with others; or
4. Concentrating, persisting, or maintaining pace; or
5. Adapting or managing oneself.20 C.F.R. Part 404, Subpart P, App.1, § 11.02D (internal citations omitted). In evaluating whether a claimant's migraine impairment equals the criteria in Listing 11.02D, the ALJ may also consider “the same factors” considered for Listing 11.02B. SSR 19-4p, 2019 WL 4169635, at *7.
Here, the ALJ did not discuss or even cite Listing 11.02B or 11.02D in addressing Tyson's migraines at step three. But that omission, standing alone, is not dispositive.
It is true that the Third Circuit “requires the ALJ to set forth the reasons for [her] decision.” Burnett, 220 F.3d at 119 (citing Cotter, 642 F.2d at 704-05). A conclusory statement at Step 3 that a claimant's impairments did not meet or equal a listing is “beyond meaningful judicial review.” Id. (citing Knepp v. Apfel, 204 F.3d 78, 84 (3d Cir.2000)). However, an ALJ need not use “particular language or adhere to a particular format in conducting [her] analysis.” Jones, 364 F.3d at 505. An ALJ's decision should be “read as a whole.” Id. Although it would be preferable for an ALJ “to specifically identify the listed impairments under consideration,” the failure to do so is not reversible error where the court can “discern the particular listed impairments considered” based on the ALJ's discussion of the relevant evidence. Arroyo v. Comm'r of Soc. Sec., 155 Fed.Appx. 605, 608 (3d Cir. 2005). Thus, “an ALJ need not specifically mention any of the listed impairments in order to make a judicially reviewable finding, provided that the ALJ's decision clearly analyzes and evaluates the relevant medical evidence as it relates to the Listing requirements.” Scuderi v. Comm'r of Soc. Sec., 302 Fed.Appx. 88, 90 (3d Cir. 2008) (emphasis added).
Applying that standard in the context of the requirements for Listing 11.02B, the ALJ's analysis of the evidence in determining Tyson's RFC does not support the conclusion that her migraine headache impairment fails to satisfy the two main criteria of that listing.
1. Frequency Requirement
To begin with, the ALJ's summary of the evidence tends to confirm that Tyson meets the frequency requirement of Listing 11.02B. As applied in this context, Tyson's migraines must occur “at least once a week for at least 3 consecutive months.” See 20 C.F.R. Part 404, Subpart P, App.1, § 11.02B; see also Corey Z. v. Saul, No. 18 CV 50219, 2019 WL 6327427, at *4 (N.D. Ill. Nov. 26, 2019) (“Courts analyzing migraine headaches under listing 11.02 have found that equivalence can be shown where migraines occur at these time intervals despite prescribed treatment.”) (citation omitted).
As noted by the ALJ, Tyson stated in her function and disability reports that she experienced severe migraine headaches either “daily” or “almost daily.” (Tr. 20.) These migraines are accompanied by other symptoms, including “tunnel or double vision, severe head pain, and sometimes nausea and vomiting.” (Id.) During Tyson's hearing testimony, she described “headaches 26 days out of a month” with symptoms lasting “anywhere from 1-to-8 hours a day.” (Id.) The ALJ also noted that Tyson's husband reported that she “got a headache 25 out of 30 days a month,” most of which were “severe by the end of the day.” (Id.)
The ALJ's review of the medical evidence further showed that when Tyson saw treating neurologist Dr. Kim on February 13, 2019, “she complained that her migraine headaches had progressively worsened and were now occurring daily.” (Tr. 24.) Similarly, when Tyson saw Dr. Ghafoor at the Geisinger Headache Center on April 1, 2019, she “complained of having severe headaches 4-5 times a week lasting from 12 hours to 3 days with associated symptoms of nausea, photophobia, phonophobia, tinnitus, and feelings of subjective weakness and lagging of the left side at times,” as well as “post-headache exhaustion.” (Tr. 24-25.)
In addition, Dr. Horchos provided evidence about the frequency and intensity of Tyson's headaches. As the ALJ noted, Tyson received pain management treatment from Dr. Horchos “since at least December 2014.” (Tr. 21.) Dr. Horchos completed a medical source statement that included the following question:
During the period in question, Ms. Tyson estimates that she has had headaches 4 days a week and 26 days a month with each lasting between five and fifteen hours. On her own defined pain scale, the pain ranged from 5 to 9 with the treatment she received. Is this frequency, persistence, intensity and duration of the headache pain consistent with all the medical and other evidence of which you are aware including diagnostic/laboratory tests and physical exams? Please explain.(Tr. 944; underscoring in original.) Dr. Horchos answered, “YES, ” and explained that Tyson was then trying another pain medication “without effect or benefit as of this time.” (Tr. 944; emphasis in original.) This evidence was not specifically mentioned by the ALJ. Nor did the ALJ mention Tyson's “Headache Journal” records reflecting the number, intensity, and side effects of the migraines she experienced during July 1, 2019 through September 19, 2019. (Tr. 925-41.) Tyson's journal further confirmed that she was experiencing multiple migraines each week.
As part of the ALJ's step three assessment, she addressed another part of Dr. Horchos's medical source statement:
Treating physical medicine and rehabilitation specialist Paul Horchos, D.O., opined on October 7, 2019, that the claimant's migraines caused her to be seriously limited in understanding, remembering, or applying information, interacting with others, and concentrating, persisting, or maintaining pace. (See Exhibit 17F). This opinion is not consistent with or supported by the activities of daily living reported by the claimant or the mental status examination findings and other objective medical evidence of record. (See Exhibits 4F; 5F; 8F; 9F; 18F).(Tr. 19.) The Commissioner points out that Dr. Horchos's opinion about Tyson's “mental areas of functioning were relevant to Listing 11.02D.” (Doc. 16 at 17; citing SSR 19-4, 2019 WL 4169635 at *7.) From this, the Commissioner reasons: “The ALJ's consideration of Dr. Horchos's opinion shows that she did consider the appropriate listing, even if the ALJ did not specifically identify it.” (Id.) This conclusion seems a bit of a stretch since the ALJ did not refer to the “physical functioning” limitation alternative in Listing 11.02D, nor did she address the frequency requirement of either Listing 11.02D or 11.02B. In any event, for the reasons discussed above, remand is warranted as to Listing 11.02B.
Based on this evidence in the record, there can be little doubt that Tyson would meet the frequency requirement of Listing 11.02B: i.e., migraine headaches “occurring at least once a week for at least 3 consecutive months.” See 20 C.F.R. Part 404, Subpart P, App.1, § 11.02B. The Commissioner does not contend to the contrary.
2. Adherence to Prescribed Treatment Requirement
However, the Commissioner does contest Tyson's ability to meet Listing 11.02B's requirement that those frequent migraines occurred “despite adherence to prescribed treatment.” Id. The Commissioner contends that Tyson “had not adhered to prescribed treatment,” as reflected by the ALJ's discussion of evidence relating to Tyson's alleged “medication overuse.” (Doc. 16 at 17-19.) Plaintiff contests the Commissioner's suggestion that the evidence shows she either did not adhere to prescribed treatment or overused medication. (Doc. 18 at 3-5.)
The medication overuse issue was first raised during Tyson's visit with Dr. Kim on February 13, 2019. (Tr. 563-65.) This was about nine months after Tyson's alleged disability onset date (May 15, 2018). It was Tyson's second visit with Dr. Kim. For at least the past four years, she had been taking various medications as prescribed by Dr. Horchos for her migraine headache pain and back pain. Dr. Horchos referred Tyson to Dr. Kim, and Dr. Horchos continued as Tyson's pain management treating physician throughout the relevant period, as Dr. Kim acknowledged. (Tr. 565 (“Follow-up with pain management, Dr. Horchos.”).)
The Commissioner describes the ALJ's discussion of the “medication overuse” evidence as follows:
As the ALJ correctly noted, Dr. Kim stated that Plaintiff's persistent headaches were complicated by medication overuse and he instructed Plaintiff to stop using any short-acting NSAIDs (Tr. 24, 564). Similarly, Dr. Ghafoor, the headache specialist, discussed medication overuse headaches with Plaintiff and how to avoid them (Tr. 24, 997). She informed Plaintiff that analgesic medications had the potential to cause medication overuse headaches and could negate the effectiveness of headache preventative measures (Tr. 997). Therefore, she instructed Plaintiff to avoid medications with narcotics, barbiturates, and caffeine, explaining that they could cause rebound headaches (Tr. 997). She also cautioned Plaintiff that taking any analgesic medications for more than two or three days a week could cause medication overuse headaches (Tr. 997).
Dr. Horchos nevertheless kept Plaintiff on the same pain medications ostensibly for her back pain (Tr. 650). Accordingly,
Plaintiff was still using Fentanyl patches and taking Oxycodone, despite both being narcotic medications (Tr. 650, 1087).
Plaintiff's problem with medication overuse was confirmed by Dr. Graves, who evaluated her in October 2019, a few days before the hearing. Dr. Graves similarly noted that Plaintiff was overusing pain medication and suspected that Plaintiffs decreased response to preventative medications were due to Plaintiff's overuse of Fentanyl and Oxycodone (Tr. 1091). She suggested that Plaintiff hold off on such medications and use them only on an as needed basis (Tr. 1091).
Because of this evidence about Plaintiff's medication overuse and the effect on her headaches, the ALJ appropriately noted it in her decision (Tr. 24-25). It showed that Plaintiff had not fully adhered to prescribed treatment measures in terms of her headaches, as advised by Drs. Kim, Ghafoor, and Graves. It supported why her migraines could not been found to have medically equaled a listing.(Doc. 16 at 17-19; emphasis added.)
Perhaps not surprisingly, Plaintiff has a different take on the ALJ's recitation of the evidence:
On February 13, 2019, Dr. Kim, who plaintiff saw twice during the period at issue, stated that her case was “complicated by medication overuse.” (Tr. 563-564) On April 1, 2019, Dr. Ghafoor, who saw Plaintiff once during the period at issue, advised plaintiff about medication overuse but never stated that plaintiff was overusing medication. On October 2, 2019, Dr. Graves, who saw Plaintiff once, stated to the plaintiff that some medications the plaintiff was taking may have been adversely affecting the effectiveness of others. Dr. Graves did not “confirm” any medication overuse nor did she “suspect” any kind of wrongdoing as stated by the Commissioner. (Tr. 1043, 1086-87)
Pain Management Specialist Dr. Horchos, continued all through the period at issue to be the primary and coordinating treating physician for plaintiff's treatment. He sent her to various neurologists for consults. He was aware of all their opinions. The insinuation that
plaintiff was abusing prescription drugs and somehow all at fault for all her headaches is wrong and not reflected in the longitudinal record.(Doc. 18 at 4.)
As can be seen, Plaintiff and the Commissioner take somewhat differing views on the ALJ's description of the medication overuse issue. But apart from that, there is a more fundamental question: Does Tyson's alleged medication overuse constitute a failure to “adhere[] to prescribed treatment” within the meaning of Listing 11.02B? The explanatory comments for the neurological listings discuss how the Commissioner will “consider adherence to prescribed treatment”:
As Plaintiff suggests, the doctors who noted this issue were less than clear about whether they thought Tyson was in fact overusing medication. Dr. Kim came closest to such a finding, noting that Tyson's headaches were “complicated by medication overuse.” (Tr. 564.) Dr. Ghafoor's notes reflect that she “discussed medication overuse headache (MOH) and how to avoid it in the future.” (Tr. 997.) And Dr. Graves reported that she “discussed” how Tyson's “decreased response to preventative agent may be due to MOH.” (Tr. 1091; emphasis added.) Although the ALJ described this evidence, she did not find that Tyson was overusing medication. In any event, even assuming the ALJ had made such a finding, it would not compel the conclusion that Tyson failed to adhere to prescribed treatment within the meaning of Listing 11.02B (as discussed above).
“Despite adherence to prescribed treatment” means that you have taken medication(s) or followed other treatment procedures for your neurological disorder(s) as prescribed by a physician for three consecutive months but your impairment continues to meet the other listing requirements despite this treatment. You may receive your treatment at a health care facility that you visit regularly, even if you do not see the same physician on each visit.See 20 C.F.R. Part 404, Subpart P, App.1, § 11.00C.
Applying that guidance here, there is no suggestion that Tyson failed to take her prescribed medications or failed to try any other treatment procedures recommended by her doctors. For example, she received Botox injections for years as recommended by Dr. Horchos. She also tried multiple medications over the years as prescribed by her doctors. As to the medication overuse issue, none of Tyson's medical providers suggested that she was taking pain medication other than as prescribed by Dr. Horchos or that she was otherwise abusing or misusing medication.
Dr. Horchos's treatment notes reflect that Tyson was regularly evaluated for possible misuse of her prescription medicines (which included opioid drugs) and that her “urine drug screens [had] been reviewed and found to be appropriate without red flags.” (Tr. 648; see also Tr. 632, 634, 636, 638, 640, 644, 650 (same).)
As shown by the ALJ's summary of the medical evidence relating to the “medication overuse” issue-and by the Commissioner's summary of the ALJ's summary (quoted above)-Dr. Horchos “continued the claimant on the same pain management regimen” even after Dr. Kim and Dr. Ghafoor had warned against medication overuse and documented that warning in reports that Dr. Horchos no doubt saw. (Tr. 25.) Indeed, although Dr. Horchos went along with Dr. Ghafoor's recommendation to try Aimovig, he otherwise made no changes in Tyson's prescribed medications, stating: “The patient will be set up for a trial of Aimovig to see if that is effective for her, but currently we will continue her on her same medications including the Fentanyl and the Oxycodone.” (Tr. 648; see also Tr. 25 (ALJ noting that again during a later visit “Dr. Horchos did not make any changes to the claimant's prescription medication regimen”).)
Dr. Kim addressed his February 13, 2019, treatment notes to Dr. Horchos. (Tr. 563.) Dr. Ghafoor's notes about Tyson's April 1, 2019, examination were prepared on the same day of the visit. (See Tr. 994 (“Progress Notes by Sana Ghafoor, MD at 04/01/19”).) Although Dr. Horchos saw Tyson the very next day (April 2, 2019), he was likely aware of Dr. Ghafoor's recommendations since he started Tyson on Aimovig, as Dr. Ghafoor had suggested the day before. (Tr. 647 (“She was recently seen by neurology, who recommended the trial of Aimovig.”).)
The “medication overuse” issue appears to reflect a disagreement or difference in approach between Dr. Horchos and other doctors. Did Tyson fail to “adhere[] to prescribed treatment” by taking medication as prescribed by her longtime treating doctor-but discouraged by other doctors? Perhaps so and perhaps not. Either way, that is a question for the ALJ to resolve in the first instance, not the Court. The ALJ made no finding on that issue-explicitly or implicitly.
Even if the ALJ had found that Tyson's medication overuse constituted a failure to adhere to prescribed treatment, the ALJ would have had to also consider whether there were periods during which Tyson was adhering to prescribed treatments. As clarified in the listing description, Listing 11.02B applies where there has been “adherence to prescribed treatment . . . for three consecutive but [the claimant's] impairment continues to meet the other listing requirements despite this treatment.” See 20 C.F.R. Part 404, Subpart P, App.1, §§ 11.00C, 11.02B. Dr. Kim first raised the medication overuse issue in February 2019. Before that, Tyson presumably could not be said to have failed to adhere to prescribed treatment since the evidence suggests she was taking medication as prescribed by Dr. Horchos. See Corinne C. v. Comm r of Soc. Sec., No. 1:20-CV-1034, 2022 WL 1590818, at *17-20 (S.D. Ohio May 19, 2022) (ordering remand where the “record evidence . . . strongly suggests plaintiff's migraine impairment may have equaled Listing 11.02B for at least a period of time, potentially entitling plaintiff to a closed period of disability”) (emphasis added).
After taking into account the ALJ's entire decision, her conclusory finding that Tyson's migraine headache impairment does not meet or medically equal the criteria of any listing is “beyond meaningful judicial review.” See Burnett, 220 F.3d at 119. Because the ALJ did not make findings needed to determine if Tyson satisfied the criteria of Listing 11.02B, and because the record reflects evidence that would tend to support application of that listing, this case should be remanded. See Corinne C. v. Comm r of Soc. Sec., No. 1:20-CV-1034, 2022 WL 1590818, at *17-20 (S.D. Ohio May 19, 2022) (ordering remand where the ALJ did not mention Listing 11.02 and the “record evidence . . . strongly suggests plaintiff's migraine impairment may have equaled Listing 11.02B”).
See also Shawna Marie N. v. Kijakazi, No. CV 21-2076-JWL, 2022 WL 579252, at *3-4 (D. Kan. Feb. 25, 2022) (holding that the ALJ did not err in finding the plaintiff did not meet the criteria of Listing 11.02 where “the record evidence does not demonstrate any medical treatment for migraine headaches during [the relevant] period”); Julie F. v. Comm'r of Soc. Sec., No. 2:21-CV-00120-SAB, 2021 WL 5750929, at *4-5 (E.D. Wash. Dec. 2, 2021) (ordering remand where the ALJ failed to refer to SSR 19-4p and failed to properly assess the plaintiff's migraine headaches under Listing 11.02B where “the ALJ simply provided boilerplate language in concluding that Plaintiff did not meet the listing for 11.02”); Willis v. Comm'r of Soc. Sec. Admin., No. 2:19-CV-11689, 2020 WL 1934932, at *7 (E.D. Mich. Apr. 22, 2020) (ordering remand where ALJ failed to address whether the plaintiff's migraine headache impairment equaled Listing 11.2B and the plaintiff “raised a substantial question that her impairment medically equals Listing 11.02(B)”); Means v. Colvin, No. 2:15-CV-01107-TFM, 2016 WL 3386814, at *6 (W.D. Pa. June 20, 2016) (ordering remand where the “Court is unable to judicially review whether or not Plaintiff's migraines met Listing 11.03 [predecessor to Listing 11.02] from the ALJ's analysis”).
If the District Court agrees with this recommendation, it is unnecessary to decide the remaining issues raised by Plaintiff, particularly since they may be affected by the ALJ's consideration of this case on remand. At the same time, those other issues suggest steps the ALJ should consider on remand, including whether additional medical expert evidence should be sought and whether the ALJ's terse assessment of Dr. Horchos's opinion complies with the Commissioner's relatively recent regulation clarifying how medical opinions are to be considered. See 20 C.F.R. § 404.1520c.
Nothing in this report should be construed to suggest whether Plaintiff should be found disabled on remand.
III. RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the Commissioner's decision be VACATED and that this matter be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with this Report. It is further recommended that the Clerk be directed to CLOSE this case.
NOTICE TO THE PARTIES
Any party may obtain review of this Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.