Opinion
CV 22-00192 PHX DLR (CDB)
03-31-2023
Tammi R. McCabe, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
TO THE HONORABLE DOUGLAS L. RAYES, JUDGE:
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge.
The case was referred to the Magistrate Judge for a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for the District of Arizona. The matter is fully pled and ready for the Court's review. The primary issue before the Court is whether the ALJ erred in concluding the frequency and severity of McCabe's migraine headaches did not render her “disabled” as that term is defined by the Social Security Administration.
I. Procedural Background
McCabe filed an application for Title II Social Security disability insurance benefits on May 7, 2014. (ECF No. 14-6 at 1; ECF No. 14-7 at 26). In her application McCabe alleged disability beginning April 13, 2013 (ECF No. 14-6 at 1), due to chronic migraine headaches, depression, anxiety, high blood pressure, and hypothyroidism. (ECF No. 14-7 at 28). McCabe's date last insured for benefits was March 31, 2019. (ECF No. 15-16 at 12).
McCabe's claim was denied initially on July 18, 2014 (ECF No. 14-4 at 1-13), and upon reconsideration on September 30, 2014. (ECF No. 14-4 at 14-27). McCabe requested a hearing before an Administrative Law Judge (“ALJ”), which was conducted April 19, 2016. (ECF No. 14-4 at 31). McCabe was represented by a “non-attorney representative” at the hearing. (Id.). At the hearing the ALJ determined McCabe had the following severe impairments: “cervical and lumbar spine disorders; migraine headaches; thyroid disorder; depression; and anxiety.” (ECF No. 14-4 at 33). In an order entered June 2, 2016, the ALJ (Martin) determined McCabe was not disabled. (ECF No. 14-4 at 31-42).
McCabe appealed, and the Social Security Appeals Council remanded the matter to the ALJ on June 2, 2017. (ECF No. 14-4 at 48-51). Noting the ALJ's decision “did not substantively address medical records submitted after the state agency decision,” and noting the subject records “documented] the claimant's ongoing treatment for her migraines and her fibromyalgia through February 2016,” and thus there was “an unadjudicated period of a year and a half,” the Appeals Council remanded for further evaluation of the evidence contained in Exhibit 9F (treatment records from Center for Pain Management dated October 15, 2012 through March 9, 2016) and 11F (treatment records from Cornerstone Family Physicians dated April 24, 2015 through March 24, 2016), as well as consideration of obesity. (ECF No. 14-4 at 48). The Appeals Council ordered the ALJ to give “further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations.” (ECF No. 14-4 at 49).
On remand, a hearing was conducted on December 5, 2017, at which McCabe testified and was represented by counsel. (ECF No. 14-3 at 140-84). In a written decision issued March 14, 2018, the ALJ (Whitfield) considered the exhibits and newly submitted evidence, and also reviewed McCabe's “apparent obesity with regard to possible functional limitations.” (ECF No. 15-3 at 121). The ALJ found McCabe's severe impairments as migraine headaches, fibromyalgia, complex regional pain syndrome, degenerative disc disease of the cervical and lumbar spine, obstructive sleep apnea, obesity, depression, post-traumatic stress disorder, and anxiety. (ECF No. 15-3 at 11840). The ALJ concluded McCabe was not disabled. (ECF No. 15-3 at 118-40).
McCabe sought review of the ALJ's decision by the Social Security Appeals Council, submitting additional medical records. (ECF No. 15-3 at 3; ECF No. 15-6 at 150-51). The Appeals Council denied relief on July 18, 2018. (ECF No. 15-3 at 2-5).
McCabe sought judicial review of the Commissioner's denial of benefits; her case proceeded in the United States District Court for the Southern District of Indiana. After McCabe filing her opening brief in that matter (the brief is not in the record on appeal in this matter and the brief is sealed in PACER), the parties filed a joint motion to remand the matter pursuant to section four of 42 U.S.C. § 405(g). See McCabe v. Saul, No. 18-CV-2879, ECF No. 16 & ECF No. 24.
ALJ Whitfield conducted an in-person hearing on November 9, 2019, at which McCabe was present with her counsel. (ECF No. 15-16 at 66-88). A second hearing was conducted by ALJ Whitfield on February 2, 2021, at which McCabe testified and was represented by counsel.
In a decision issued April 23, 2021, the ALJ concluded McCabe was not disabled. (ECF No. 15-16 at 8-34). McCabe sought review of the ALJ's decision by the Social Security Appeals Council, which denied relief on December 6, 2021 (ECF No. 15-16 at 2-7), making the ALJ's decision the final, appealable decision of the Commissioner.
II. Governing Law
McCabe seeks disability benefits pursuant to Title II of the Social Security Act. Disability insurance benefits pursuant to Title II are paid to disabled persons who have contributed to the Social Security program regardless of financial need. 42 U.S.C. §§ 401-425. Disability is defined as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(a).
To establish eligibility for Social Security benefits based on disability, the claimant must show: (1) she suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (2) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. 20 C.F.R. § 404.1505. If a claimant meets both of these requirements, she is by definition “disabled.” See, e.g., Frost v. Barnhart, 314 F.3d 359, 365 (9th Cir. 2002). To be entitled to disability insurance benefits pursuant to Title II, the claimant must also establish they were either permanently disabled, or subject to a condition which became so severe as to disable them, prior to the date upon which their disability insured status expired, i.e., prior to their “date last insured” for benefits. See, e.g., Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998).
A five-step sequential evaluation governs eligibility for disability-based benefits under Title II. See 20 C.F.R. §§ 404.1520; Barnhart v. Thomas, 540 U.S. 20, 24 (2003); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). First, the claimant must establish she is not gainfully employed at the time of her application. See 20 C.F.R. § 404.1520(a)(4)(i). Next, the claimant must be suffering from a “medically severe” impairment or “combination of impairments.” Id. § 404.1520(a)(4)(ii). The third step is to determine whether any of the claimant's impairments meets or equals one of the “listed” impairments included in Appendix 1 to this section of the Code of Federal Regulations. See id. § 404.1520(a)(4)(iii). If any of the claimant's impairments meets or equals one of the impairments listed in Appendix 1, the claimant is conclusively “disabled.” See id.
The fourth step of the process requires the ALJ to determine whether the claimant, despite her impairments, can perform work similar to work she has performed in the past. This requires the ALJ to make an assessment of the plaintiff's “residual functional capacity” to do work-related tasks on a sustained basis. A claimant whose “residual functional capacity” allows her to perform her “past relevant work,” despite her impairments, is denied benefits. Id. § 404.1520(a)(4)(iv).
The claimant bears the burden of proof throughout the first four steps of the evaluation. See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Valentine v. Social Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995). If the claimant cannot perform her past relevant work because of her impairments, the Commissioner proceeds to step five. At step five of the evaluation the burden shifts to the Commissioner to demonstrate that the claimant can perform other substantial gainful work that exists in the national economy, given her residual functional capacity. See 20 C.F.R. § 404.1520(a)(4)(v); Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). In making this determination the Commissioner considers whether, in view of the claimant's residual functional capacity, the claimant is capable of performing other work in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v). In making this determination, the Commissioner must also consider vocational factors such as the claimant's age, education, and past work experience. Id. § 404.1520(g). If the claimant can adjust to other work, the Commissioner must find that the claimant is not disabled. Id. § 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits.
III. Standard of Review
The Court's jurisdiction extends to review of the final decision of the Commissioner denying McCabe's application for Social Security disability-based benefits. See 42 U.S.C. § 405(g). Judicial review of a decision of the Commissioner is based upon the pleadings and the administrative record of the contested decision. See Id. The scope of the Court's review is limited to determining whether the ALJ applied the correct legal standards to McCabe's claims for benefits and whether the record as a whole contains substantial evidence to support the ALJ's findings of fact. See id. § 423; Allen v. Kijakazi, 35 F.4th 752, 756 (9th Cir. 2022); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Satisfying the substantial evidence standard requires more than a scintilla but less than a preponderance of record evidence. E.g., Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). Substantial evidence has been defined as the amount of relevant evidence a reasonable mind would accept as adequate to support a conclusion. Id. at 1154. See also Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022); Garrison, 759 F.3d at 1009. The Court should uphold the ALJ's decision “unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. []. Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficient] evidence” to support the agency's factual determinations. []. And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations omitted).
The Court must consider the record evidence in its entirety, weighing both the evidence that supports and detracts from the ALJ's conclusion. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). A reviewing court may not affirm the Commissioner's denial of benefits by isolating a specific quantum of supporting evidence. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017); Revels v. Berryhill, 784 F.3d 648, 654 (9th Cir. 2017). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995), quoted in Garrison, 759 F.3d 1010. Where “the evidence can reasonably support either affirming or reversing a decision,” the Court may not substitute its judgment for that of the ALJ. Garrison, 759 F.3d at 1010. See also Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). And, if an ALJ's legal error was harmless, i.e., if there is substantial evidence in the record to support the ALJ's conclusion on the challenged issue absent the legal error, the case need not be remanded for further proceedings. See, e.g., Ford, 950 F.3d at 1154; Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015).
III. Record on Appeal
The Magistrate Judge has thoroughly reviewed the 3000-plus pages of the record medical evidence (much of it duplicated) in its entirety. In the interest of judicial efficiency, the entire record evidence will not be summarized. The pertinent medical evidence will be discussed as relevant to McCabe's claims of error.
McCabe was born in August of 1973, and was approximately 41 years of age at the alleged onset of disability. (ECF No. 14-6 at 1). Per her employer, she stopped working full-time in March of 2013, was placed on sick leave on April 1, 2013, tried returning to work in December of 2013, “but worked only 5 days over the course of 3 weeks” and her employment was terminated on January 8, 2014. (ECF No. 14-6 at 11). McCabe's earnings report shows increasing wages from 1986, becoming substantial in 1993, and continuing at the substantial level through the end of 2012. (ECF No. 14-6 at 15-16, 24, 27). Wages in 2013 were less than half ($16,390.80) of those earned from 2003 through 2012. (ECF No. 14-6 at 16, 24, 41). Total earnings for 2014 were $801.41. (ECF No. 14-6 at 41).
McCabe completed high school. (ECF No. 14-7 at 29). At the time she applied for benefits in 2014 McCabe reported she was “self-employed” in “direct sales.” With regard to her past relevant work, McCabe reported that for the 15 years prior to filing her application she worked for a little over a year as a human resources office manager, for three months as a human resources manager, and for five and a half years as a “plans/services consultant” for an insurance company. (ECF No. 14-7 at 29). In her initial application for benefits McCabe listed her medications as Corgard for high blood pressure, dihydrocrgotamine (DHE) and Imitrex for migraines, Klonopin for anxiety, levothyroxine for hypothyroidism, and Wellbutrin for depression. (ECF No. 14-7 at 31). She reported “problems concentrating as all I can focus on is the pain. When I drive, I feel like I am going to pass [out] because of my anxiety. At least 3 days a week I [feel] I have no motivation to get up an I s (nothing else was typed in).” (ECF No. 14-7 at 36).
In an Adult Function Report dated June 16, 2014 (ECF No. 14-7 at 58-65) McCabe averred: “My migraines/headaches are daily. There is not a day that I do not have some sort of headache. I get 15+ migraines per month.” (ECF No. 14-7 at 65). McCabe reported her daily activities as “rest on chair, may take children to activities, when I can laundry, dishes, dust, sweep. Most days are spent in bed w/headaches, watch some tv, computer time.” (ECF No. 14-7 at 58). She stated she watched television “daily,” and that she read twice per week, and watched her children kids' sports activities three times per week, but “sometimes cannot make it to all activities outside of home.” (ECF No. 14-7 at 62). McCabe reported she shopped for groceries once per month and that she could drive; she also interacted with others on her computer or on her phone six times per week. (ECF No. 14-7 at 61-62). She stated that problems with nausea, vertigo, and fatigue interfered with her personal hygiene. (ECF No. 14-7 at 59). She reported she had a hard time sleeping because of headaches. (Id.). If McCabe had a headache she could not drive her children to activities-her husband took care of this and did the cooking and household chores. (Id.).
On July 31, 2014, on appeal from the initial denial of benefits, McCabe asserted her conditions had become more severe and caused greater limitations, stating: “The limitations that I experience are more severe in virtually every aspect of my daily life,” and she noted “chronic headaches” as new condition (ECF No. 14-7 at 70). At that time she reported her prescription medications as baclofen (for pain), Corgard, Effexor (to treat depression), Imitrex, indometacin (for pain), Klonopin, levothyroxine, lisinopril (for high blood pressure), Phenergan (an anti-nausea medication), Sumavel (injected Imitrex (sumatriptan), to treat migraines), and Zofran (an anti-nausea medication). (ECF No. 14-7 at 73).
In an Adult Function Report dated September 15, 2014 (ECF No. 14-7 at 78-85), McCabe reported: “The migraines started in 2006 and have progressively gotten worse. Currently I have daily headaches and chronic migraines. Most days are spent in bed. I get behind on household work and the paying of bills. The constant headaches and migraines have made my anxiety and depression worse.” (ECF No. 14-7 at 85). She stated she could follow written and spoken instructions, and her ability to concentrate “depend[ed] on severity of headache.” (ECF No. 14-7 at 83). McCabe stated: “I never sleep all night. I have severe insomnia. I wake up with migraines.” (ECF No. 14-7 at 79). She stated she did not do any shopping, but she could drive. (ECF No. 14-7 at 81). “Most days are spent either in bed or on the couch. It depends on the level of headache I have. At times, I can do light cleaning. I run very few errands due to daily pain. I take medication three times per day and regularly attend medical visits.” (ECF No. 14-7 at 78). McCabe stated she talked on the phone or chatted online “[b]etween headaches and migraines,” and that she attended her daughters' softball games once per week. (ECF No. 14-7 at 82).
In an order entered June 2, 2016, the ALJ determined McCabe was not disabled. (ECF No. 14-4 at 31-42).
The ALJ noted, with regard to McCabe's migraine headaches:
In a brief submitted by the claimant's representative, he alleges that the claimant meets the requirements of Listing 11.03 relating to non-convulsive epilepsy (Ex. 17E/2). The claimant does not meet the requirements of Listing 11.03 non-convulsive epilepsy because there is no evidence that claimant has episodes occurring more frequently than once weekly in spite of at least three months of prescribed treatment. Overall, there is no evidence of any treatment or diagnosis for an epilepsy condition. In fact, the claimant's representative does not even discuss epilepsy or a related condition in summarizing the claimant's diagnosis and treatment.(ECF No. 14-4 at 34). The ALJ further noted McCabe had “mild restriction” with regard to activities of daily living, stating: “The premise of many of the claimant's limitations in this area is due to pain and not mental health. Nonetheless, the claimant remains capable of living independently within her household, tending to her personal hygiene, preparing simply meals, and performing routine household chores (Ex. 9E and 12E).” (Id.). As to how McCabe's headaches impacted her activities and residual functional capacity, the ALJ found:
After careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.
The claimant reports she has had migraine headaches since she was 31 years old (Ex. 2F/33). At the time of the hearing, the claimant was 42 years old. Up until April 2013, the claimant was able to work despite her migraines. Workup in the past has included an MIRI scan of the brain done with and without contrast initially in January of 2011 and in October of 2012 that were both within normal limits (Ex. 1F/9). The medical evidence of record does not include evidence showing worsening of the claimant's migraine headaches (Ex. 1F and 3F). The fact that the claimant's migraine headaches did not prevent her from working previously strongly suggests that it would not currently prevent work.
Additionally, the medical evidence of record shows improvement of the claimant's headache/migraines since starting treatment at the Michigan Head, Pain, and Neurological Institute (Ex. 2F/8). The claimant underwent initial evaluation on May 20, 2013 with James Weintraub, D.O. (Ex. 1F and 3F). At that time, Dr. Weintraub reported that the claimant has findings most consistent with chronic migraine cephalgia (Ex. 2F/31). Dr. Weintraub has proceeded with a multidisciplinary treatment program, which included behavioral examination with Jan Bachman, Ph.D. on the same day (Ex. 2F/33). Based on her examination, Dr. Bachman noted the claimant's mood is consistent with a mild level of depression (Ex. 2P/35). In addition to a change in the claimant's medication, both Drs. Weintraub and Bachman suggested better sleep hygiene, consistent diet, and exercise (Exs. 2F/32 and 2F/35).
By July 2013, the claimant reported a month of improvement in her headaches (Ex. 2F/24). Then again, on October 24, 2013, Dr. Bachman reported the claimant was doing remarkably better (Ex. 2F/8). Dr. Bachman went on to report that the claimant's affect was better and the claimant reported she is going out more and feels like she is more comfortable with doing things outside of her home (Ex. 2F/8). Also of note, Dr. Bachman's treatment notes indicate that the claimant has expressed interest in going back to work (Ex. 2F/8). The claimant had an appointment with Dr. Bachman on December 17, 2013 but did not attend this meeting (Ex. 2F/6). The claimant has not returned to the Michigan Head, Pain, and Neurological Institute.
At the end of 2013, the claimant reported to her primary care provider, Mark Wyant, M.D., that she was not doing well (Ex. 6F/75). The claimant reported she had Botox injections that did not help and wants to come off all medications (Ex. 6F/75). Dr. Wyant kept the claimant on Corgard as a headache preventative and prescribed Toradol, Zofran, and DHE as needed for breakthrough migraines. (Ex. 6F/77). At that time, the claimant also indicated that she would like to try pain management. (Ex. 6F/77).
Prior to presenting to pain management the claimant underwent a comprehensive craniofacial examination with Arthur Roberts, D.D.S., M.D. (Ex. 5F/15. Based on his examination and testing, Dr. Roberts indicated that the claimant has some jaw, headache, and sleep issues (Ex. 5F/15-19). However, Dr. Roberts indicated that the claimant has a significant stress component. In addition, there may be sympathetic maintenance and developing central sensitization syndrome. Dr. Roberts noted these factors have been known to initiate and/or exacerbate a number of head and neck pain disorders (Ex. SF/19). Dr. Roberts prescribed an intra-oral orthotic (Ex. 5F/19). There is no evidence of follow-up treatment with Dr. Roberts.
Before starting pain management, the claimant returned to Dr. Wyant for her annual physical on March 3, 2014. Dr. Wyant's treatment notes indicate that the claimant is generally doing well. ... In fact, there were no complaints of headaches (Ex. 3F/7-11). The next day, the claimant returned to her neurologist, Cassandra Curtis, M.D., for follow-up (Ex. 6F/37). During this examination the claimant also reported she was doing better (Ex. 6F/37). Overall, the claimant reported still experiencing headaches but had fewer migraines (Fx. 6F/39). Dr. Curtis again noted the claimant was doing better on follow-up on June 30, 2014 (Ex. 6F/29). The claimant's headaches have not resolved completely which is accounted for [in] the residual functional capacity by providing for simple, routine work and recognizing some off-task behavior. However, the evidence does show improvement in her symptoms all around.(ECF No. 14-4 at 37-38).
McCabe appealed, and the Social Security Appeals Council remanded the matter to the ALJ on June 2, 2017. (ECF No. 14-4 at 48-51). Noting the ALJ's decision “did not substantively address medical records submitted after the state agency decision, and noting the subject records “documented] the claimant's ongoing treatment for her migraines and her fibromyalgia through February 2016,” and thus there was “an unadjudicated period of a year and a half,” the Appeals Council remanded for further evaluation of the evidence contained in Exhibit 9F (treatment records from Center for Pain Management dated October 15, 2012 through March 9, 2016) and 11F (treatment records from Cornerstone Family Physicians dated April 24, 2015 through March 24, 2016), as well as consideration of obesity. (ECF No. 14-4 at 48). The Appeals Council ordered the ALJ to give “further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations.” (ECF No. 14-4 at 49).
On remand, a hearing was conducted on December 5, 2017, at which McCabe testified and was represented by counsel. (ECF No. 14-3 at 140-84). McCabe's counsel described McCabe's severe impairments as migraine headaches, complex regional pain syndrome (“overlapping” with fibromyalgia), depression, insomnia, and neck pain due to degenerative disc disease. (ECF No. 14-3 at 141, 147). Counsel averred: “While all of those are severe impairments, the primary problem that she's having is her migraine headaches.” (ECF No. 14-3 at 141). In response to the ALJ's questions, McCabe testified that she did not “sleep much,” stating she would wake at 2:30 in the morning, sleep on the couch in the early morning, and then take her medications. (ECF No. 14-3 at 164-65). She testified: “I have a headache constantly.” (Id.). She testified her husband did most of the cooking, and that she could use the microwave and did what she could when she was not “down with a headache or down with a migraine,” such as sweeping the living room. (ECF No. 14-3 at 165). McCabe testified that, with regard to cleaning “. It just depends .. some days I spend the whole day in bed. .. some days I spend the whole day on the couch. ... typically lately, it's just been going to my psychologist appointments or doctor's appointments. Very rarely do I get out for anything else.” (ECF No. 14-3 at 166). She stated she and her husband had traveled to Hawaii and to Arizona (McCabe was then living in Indiana). (ECF No. 14-3 at 166-67). She testified that after traveling to Hawaii she “was in bed the next couple of days after that. I didn't get to enjoy Hawaii much.” (ECF No. 14-3 at 167). McCabe also testified that Migraine Treatment Centers of America sent her to Tennessee for surgical implantation of a neurostimulator. (ECF No. 14-3 at 167-68).
The ALJ questioned McCabe with regard to her past relevant work and her work after her alleged date of onset of disability, which consisted of two “home-based” or “direct sales” businesses, and three or four months evaluating resumes for a friend's employment recruiting business. (ECF No. 14-3 at 148-62). She stated that, at best, she was able to work 10 hours per week with regard to the direct sales work, and that her maximum earnings were fifty dollars per month. (ECF No. 14-3 at 151-52, 154). She was able to place one person with regard to the resume evaluations job and she earned $2500 from that placement. (ECF No. 14-3 at 157). In response to the ALJ's question, McCabe testified that headaches, daily migraines, and “daily pain” made it difficult to concentrate and kept her from working, and that she had a “hard time” with anxiety and depression. (ECF No. 14-3 at 169). She stated that lifting more than five pounds hurt her head and neck, and that she experienced pain in her back and upper neck if she stood for more than ten minutes at a time. (Id.). She could sit for 45 minutes to an hour before needing to “move around.” (Id.). She also stated her hands hurt from the “fibromyalgia or chronic pain syndrome.” (ECF No. 14-3 at 170).
In response to counsel's questioning, McCabe stated that she ceased the direct sales businesses because she could not “keep up with - with the migraines, with the headaches, it was just like working in an office. I couldn't do it. I couldn't concentrate on it.” (Id.). With regard to the job screening resumes, McCabe stated that she was unable to work three to four days per week due to pain. (ECF No. 14-3 at 171). McCabe testified that she could not cook, clean, or do laundry when experiencing a migraine because she had to be in bed after taking Imitrex (a pill) or sumatriptan (a shot) (“wait[ing] for [the medications] to work”), and that she used “Migraine Buddy” to track her headaches and migraines. (ECF No. 14-3 at 171-72). She stated that after implantation of the neurostimulator she still experienced migraines, although it helped “some” for about six months, after which she “was getting the daily headaches over again.” (ECF No. 14-3 at 173). She stated that after six months “the migraines and the frequency of the actual migraines,” which she rated as “a seven to a ten,” “stayed about the same.” (Id.). She testified that four or five days per week she experienced a “seven or a ten,” resulting in being “in bed or on the couch and it's dark and I'm not watching TV and I'm not on my phone and I'm not doing anything, but trying to get rid of the pain that's in my head.” (ECF No. 14-3 at 173-74). She testified the migraines lasted 48 to 72 hours, and that she took her migraine medication by injection because it worked better and faster and “the pill form makes me sick to my stomach all day.” (ECF No. 14-3 at 174).
In a written decision issued March 14, 2018, the ALJ considered the exhibits, newly submitted evidence, and also considered McCabe's “apparent obesity with regard to possible functional limitations.” (ECF No. 15-3 at 121). The ALJ found McCabe's severe impairments as migraine headaches, fibromyalgia, complex regional pain syndrome, degenerative disc disease of the cervical and lumbar spine, obstructive sleep apnea, obesity, depression, post-traumatic stress disorder, and anxiety. (ECF No. 15-3 at 124). The ALJ again concluded McCabe was not disabled. (ECF No. 15-3 at 134).
At the third step of the sequential evaluation the ALJ determined:
The claimant has testified that she has frequent migraine headaches. The most analogous Listing is 11.02 that refers to epilepsy, however, the record does not document the presence of the criteria necessary to meet the Listing. The claimant has a primary neuropathic pathology, without clear etiology; symptom management with neuro-stimulation is effective, but not a cure (Ex. 17F). Per the claimant's report, the claimant's headache pain is all but eliminated, however, she still has severe episodes, but the pain is greatly managed and treatment has been 80% successful; the claimant is capable of work with moderate stress (Ex. 17F). With treatment, the pain was described as constant, and radiating, but mild; the claimant was doing well overall (Ex. 15F at 2).(ECF No. 15-3 at 125).
Exhibit 15F contains a treatment note regarding a neurostimulator implant on December 19, 2016, performed by Dr. Rupert. (ECF No. 15-15 at 15). The notes indicate McCabe had “failed over six months of conservative care” for “chronic intractable neuropathic pain secondary to unknown secondary cause,” and had “been on monitor management and medication management with limited benefit.” (Id.). The notes indicate McCabe had “undergone a trial of neuromodulation with significantly positive improvements in pain, functioning, and quality of life indices,” warranting placement of a permanent neurostimulator. (Id.). Exhibit 15F also contains treatment records from Dr. Rupert's practice dated October 3, 2016 through July 10, 2017 (32 pages). On November 28, 2016, a trial neurostimulator was implanted. (ECF No. 15-15 at 9). McCabe was seen once before the trial neurostimulator was implanted, and four times after the permanent stimulator was implanted in December of 2016, with the last appointment July 10, 2017. The initial encounter notes report the “chronic neuropathic pain of the head neck and face” had been “ongoing now for many years,” and that McCabe had been treated “primarily with symptom management tools, including activity modification, physical therapy, chiropractic care, injection therapy, intravenous infusions of lidocaine and a whole host of medications.” (ECF No. 15-5 at 32). The notes state: “The patient is having less and less benefit from medications with higher and higher doses. She has pain that is moderate to severe all day and will exacerbate two periods of severe intolerable pain on a daily basis. Current medications including high dose opioids do not provide benefit.” (Id.). On July 10, 2017, McCabe reported she was “doing really well overall,” although she was still experiencing “some bad pain episodes but much, much less.” (ECF No. 15-15 at 3). McCabe reported she was experiencing throbbing, constant, mild pain in her head, radiating to the neck. (ECF No. 15-15 at 3). “The problem interferes with sleep, work, relationships and activities of daily living. The problem makes her feel frustrated, depressed, angry and hopeless.” (Id.). The doctor noted she was “doing really well overall-Able to wean off 100 mg of Oxycontin, still has some bad pain episodes but much, much less.” (Id.). McCabe denied visual disturbances. (ECF No. 15-15 at 4). The assessment noted “Has all but [eliminated] her daily head pain episodes ... still has some severe episodes but greatly [manageable] now w[ith] device and Imitrex.” (ECF No. 15-15 at 5).
Exhibit 17F is a physical residual functional capacity assessment dated September 22, 2017, (three months prior to the hearing) authored by Dr. Rupert. The doctor noted a diagnosis of complex regional pain syndrome, and that he first saw McCabe “about a year ago.” (ECF No. 15-15 at 39). With regard to McCabe's headaches, the doctor characterized the headaches as “moderate to severe head neck and face pain.” (Id.). Other symptoms associated with the headaches were “hyperalgesia, allodynia, sudomotor changes, vasomotor changes.” (ECF No. 15-15 at 40). The doctor did not note the symptoms of nausea, vomiting, vertigo, photosensitivity, visual disturbances, or inability to concentrate. (Id.). With regard to the frequency of the headaches, the doctor noted “patient describes pain as chronic,” and the duration of the headaches was “years.” (Id.). The doctor did not note any specific triggers, such as lack of sleep, noise, stress, or bright lights, and did not note any aggravating factors such as bright lights, noise, or moving around. (Id.). Additionally, the doctor did not note any mitigating factors such as lying in a dark room. (ECF No. 15-15 at 41). With regard to test results and objective signs of headaches, the doctor noted allodynia [pain from stimuli which are not ordinarily painful], and hyperalgesia [hyper sensitivity to pain], and Homer's Syndrome [an interruption of nerve supply from the brain to the face and eye, on one side of the body. Usually caused due to injury to the spinal cord, stroke, tumor or underlying conditions.] (Id.). Dr. Rupert noted McCabe was not a malingerer, and that, with regard to “emotional factors” contributing to the severity of the headaches: “Almost always a contributor to worsening symptoms but not likely a cause.” (Id.). The doctor noted no “quantitative impairments,” and with regard to treatment stated: “Treated with neuromodulation. 80% success with trial. Percent benefit has not been quantitated on last visit but she has weaned off of 150 morphine daily equivalents of narcotics.” (ECF No. 15-15 at 42). The prognosis was “Patient has a primary neuropathic pathology without clear etiology. Symptom management with neurostimulation is effective but not a cure.” (Id.). Dr. Rupert opined that, with regard to McCabe's ability to perform “even basic work activities:” “Unable for me to answer, but reasonable to expect decreased ability to concentrate when severe.” (Id.). He stated McCabe would “[p]ossibly” need to take unscheduled breaks during a workday, and that “[p]er last note [a year prior], ‘Has all but eliminated her daily pain ... Still has severe episodes but greatly managed now with device and Imitrex ..'” (Id.). The doctor predicted McCabe's impairments would produce good days and bad days. (ECF No. 15-15 at 43).
McCabe sought review of the ALJ's decision by the Social Security Appeals Council, submitting additional medical records. (ECF No. 15-3 at 3; ECF No. 15-6 at 150-51). The Appeals Council denied relief on July 18, 2018. (ECF No. 15-3 at 2-5).
Several weeks after the ALJ issued the decision denying benefits, in the interim between that decision and the remand of the matter by the Indiana federal court, McCabe was evaluated at Indiana Polyclinic, an integrated pain management practice, on April 9, 2018. (ECF No. 14-3 at 106). Regarding the severity of her symptoms, McCabe reported in that the prior month she had not been bothered by trouble falling or staying asleep, or sleeping too much, but that she was “bothered a lot” by back pain, pain in her joints, and headaches. (ECF No. 14-3 at 60). She reported that she could not cope with her pain without medication, could not accomplish her goals despite her pain, could not live a normal lifestyle despite her pain, and could not gradually become more active despite her pain. (ECF No. 14-3 at 63).
In a Personal Data Form submitted to Indiana Polyclinic dated April 9, 2018 (ECF No. 14-3 at 97), McCabe reported her daily activities as “Painting, [c]rafts, reading,” her exercise as “Walking,” and her activity level as “5,” with 10 being very active and 0 being inactive. (ECF No. 14-3 at 98). She reported that standing, cold, walking, and exercise made her pain worse. (ECF No. 14-3 at 104). On the Personal Data Form McCabe stated the intensity of her average daily pain was a “4” (out of 10, with 0 being “no pain” and 10 being “worst pain imaginable”), and that her pain had been at this level for the prior 5 years. (ECF No. 14-3 at 105). She stated she was able to do “some light housework.” (Id.). She stated she spent her day “typically” reading and resting, “depending] on how I'm feeling.” (Id.). McCabe told the nurse practitioner (“NP”) “her headache never goes away. It just intensifies periodically.” (ECF No. 14-3 at 106). The NP noted “multiple evaluations and a very thorough workup and [she] has tried a trial of many medications,” including “multiple IV treatments,” and that she had failed “Topamax, multiple beta-blockers, muscle relaxers, amitriptyline, Imitrex (adverse side effects).” (Id.). Prior medications were listed as Effexor, Elavil, Nardil, Prozac, Vilbryd, Wellbutrin, Zoloft, Buspar, clonazepam, Alsuma, DHE, Frova, Imitrex, Indocin, gabapentin, Keppra, Lyrica, Topamax, Zonisamide, Depakote, Singulair, Flexeril, Zanaflex, Dilaudid, Fentanyl, hydrocodone, MS Contin, Oxycontin, Tylenol #3, and Namenda. (ECF No. 14-3 at 107). The NP noted McCabe “likes painting, crafts, reading, and walking,” and that she was “moderately active socially.” (Id.). Diagnoses included “Chronic daily headache for three (3) years,” “Long history of failed trials of multiple medications including anticonvulsants, antidepressants, multiple pain medications, and IV treatments,” and “fibromyalgia.” (Id.). The NP opined McCabe was “an excellent candidate for a multidisciplinary approach to her chronic headache,” noting she had “not had much interventional treatment from a headache block and from a cervical standpoint. It is likely that her headache is multifactorial and certainly the cervical spine could be contributing as she has facet disease seen on MRI from last year.” (ECF No. 14-3 at 109). Diagnosis included “Chronic migraine w/o aura, intractable, w/o stat migr,” and “headache.” (ECF No. 14-3 at 113) (emphasis added).
The notes on this form indicate McCabe stated her average daily headache pain was a “4/10 or 5/10,” with the worst pain a “9/10. Best is a 4/10.” (ECF No. 14-3 at 106).
An “intractable” (or refractory) migraine is a severe migraine which lasts 72 hours and has been resistant to the usual therapies and medication for migraine. See Stedman's Medical Dictionary, 28th Edition. Lippincott, Williams & Wilkins, pub. “Status migrainosus” refers to a migraine attack that lasts longer than 72 hours combined with prolonged symptoms, such as vomiting. These terms are sometimes used interchangeably, however status migrainosus seems to refer to more serious episodes of migraine headaches which, in addition to pain, also include symptoms such as dizziness, vomiting, aura, and other symptoms that last for longer than 72 hours, even with treatment; the headache might go away for a few hours, but it keeps coming back. Throughout McCabe's treatment records, her migraines are sometimes referred to as intractable but without status migrainosus.
On April 30, 2018, McCabe reported to her occupational therapist at Indiana Polyclinic that her overall daily function was a 5 out of 10, with 10 being “completely disabled.” (ECF No. 14-3 at 66). She rated her depression and anxiety as 3 out of 10. (Id.). In an Indiana Polyclinic Occupational Therapy Evaluation completed May 14, 2018, the physician noted McCabe described her “[a]verage pain level for past month” as “5/10,” the least pain in the prior month as “4/10,” the worst pain in the prior month as “8/10,” with six “exacerbations per month with the longest lasting a day.” (ECF No. 14-3 at 55). She described her leisure activities as “bunco, hubby time, out to eat,” and said that prior to that time she was “independent with ADLS/work/leisure/other occupations of life with an average pain level of 6/10,” and her level of “function at that time was moderate.” (Id.). Her current activities were reported as “up 6 [a.m.], water, smaller puppies, tv, rest there for an hour, light house chores depending on how she feels, adjusts activity based on her pain level, with frequent breaks, volunteer M and W at home on computer, may go outside read, meditation, water garden, to bed 1030p.” (Id.). She rated her sleep quality as “fair,” and reported moderate to severe limitations with household tasks and some personal hygiene, lifting/carrying, pushing/pulling, squatting, sitting, standing, and walking. (Id.).
On April 30, 2019, approximately one year after McCabe was first seen at Indiana Polyclinic and one month after her date last insured, her claim for disability benefits was remanded to the Commissioner by the Southern District of Indiana. Pursuant to the District Court's order on remand, the Appeals Council admonished the ALJ to conduct further proceedings as follows:
The hearing decision does not contain an adequate evaluation of the State agency reviewing psychologist's opinions (20 CFR 404.1527). Reviewing consultant's [sic], Ken Lovko, Ph.D., and J. Gange, Ph.D., both rated the claimant with moderate difficulties in maintaining social functioning and indicated the claimant would have moderate limitations in the ability to interact with the general public (Exhibits 1A and 3A). . . . [The ALJ's] rationale is not sufficient to support rejecting their opinions regarding moderate social functioning limitations and, therefore, further evaluation is needed (20 CFR 404.1527).
In addition, the Appeals Council notes an internal inconsistency within both the reviewing psychologist's [sic] opinions that warrants further evaluation.....Clarification of such opinions should be obtained.
The hearing decision does not contain an adequate evaluation of the opinion from consultative examiner, Laura Boggs, Psy.D. (20 CFR 404.1527). After evaluating the claimant in July 2014, Dr. Boggs noted there was evidence the claimant would experience difficulties learning, remembering and comprehending simple instructions, noting that depression and migraines caused difficulties with concentration and memory (Exhibit 4F, page 6). . . .
The Administrative Law Judge did not cite sufficient evidentiary support for the assessed physical and mental residual functional capacity limitations, pursuant to Social Security Ruling 96-8p. In evaluating the claimant's mental abilities, the Administrative Law Judge assigned partial weight to all of the medical opinions and did not cite to specific evidence in the record or provide a meaningful explanation as to how such evidence correlates with the assessed limitations (Decision, pages 6-12). In evaluating the claimant's physical abilities, the Administrative Law Judge assigned considerable weight to the opinions from treating physician, Matt Rupert, M.D., and partial weight to the State agency medical consultants (Decision, page 12). However, State agency medical consultants determined the claimant was capable of performing a range of medium
work, while Dr. Rupert noted he was unable to determine or predict the claimant's ability to function in multiple areas []. The Appeals Council notes it is unclear from the decision how the evidence and opinions translate into the ability to perform work at the light exertional level, with a sit-stand option, and additional nonexertional limitations (Decision, pages 7-12). As such, the Appeals Council finds that the evidentiary basis of the residual functional capacity assessment is unclear and further evaluation is necessary.
The step five finding is not supported by substantial evidence as the vocational expert's testimony was not based on a hypothetical question consistent with the residual functional capacity assessment. The residual functional capacity assessment includes a limitation to a work environment with no “tandem tasks or teamwork” []. However, when presented with such limitation (along with the limitation of only occasional interactions with the public, coworkers, and supervisors), the vocational expert testified that no work would be available in the national economy due to the combination of the social limitations and the limitation to no fast paced work []. The Administrative Law Judge then asked the vocational expert whether there would be jobs available if “I remove the social limitations”, to which the vocational expert identified the jobs cited in the hearing decision []. The Appeals Council notes that a limitation to “no tandem tasks or teamwork” constitutes a social limitation and it is unclear from the hearing testimony whether the jobs identified would accommodate such limitations, as the vocational expert testified that all jobs identified required at least frequent contact with others []. Accordingly, the step five finding is not supported by substantial evidence and further vocational expert evidence is needed. ...(ECF No. 15-7 at 13-15) (some internal citations to the record omitted). Upon remand, the ALJ was instructed to update the record and further evaluate McCabe's mental impairments. (ECF No. 15-7 at). The ALJ was further advised to give further consideration to the treating, nontreating, and nonexamining source opinions, and explain the weight given to such opinion evidence; and give further consideration to McCabe's “maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations.” (ECF No. 15-7 at 15). The ALJ was also required to:
Obtain evidence from a vocational expert to clarify the effect of the assessed limitations on†McCabe's “occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). . . .
In compliance with the above, the Administrative Law Judge will offer the claimant the opportunity for a hearing, address the evidence which was submitted to the Appeals Council, take any further action needed to complete the administrative record and issue a new decision.(Id.).
The non-exertional limitations were as follows:
The claimant's work may not require constant exposure to extremes of heat or cold and no exposure to hazardous moving machinery and unprotected heights. The claimant's work may not require any commercial driving. The claimant is limited to understanding, remembering and carrying out of simple, routine and repetitive tasks in a work environment with no fast paced production, tandem tasks or teamwork. Finally, the claimant can tolerate a workplace with no more than a three (3) noise level.(ECF No. 15-3 at 127).
In the written order denying benefits after remand, the ALJ interpreted the Appeals Council's order as requiring the ALJ to further evaluate the mental assessments of the state agency physicians and the medical opinion of a consultative examining psychiatrist, Dr. Boggs, and to “cite to sufficient evidence in support of the residual functional capacity and obtain additional vocational expert testimony.” (ECF No. 14-10 at 10).
ALJ Whitfield conducted an in-person hearing on November 9, 2019, at which McCabe was present with her counsel. (ECF No. 15-16 at 66-88). The ALJ received into evidence, inter alia, Exhibits 27E, Exhibits 1E through 28E, and Exhibits 1F through 26F. (ECF No. 15-16 at 69). Counsel noted the treating source statement by Dr. Rupert mentioned by the ALJ in the prior opinion, at 17F, and a statement from a mental health care provider at 22F. (Id.).
Exhibit 22F is a Mental Residual Functional Capacity Questionnaire completed by Dr. Orr, a psychologist, on June 4, 2019. (ECF No. 15-25 at 121-25).
McCabe testified at the November 2019 hearing that, since the hearing in 2018, her ailments were “pretty much the same. If anything, they've gotten worse.” (ECF No. 15-16 at 70). She testified that what had gotten worse was “the migraines, the duration of the migraines, the length of the migraine. The different treatments that [she was then receiving] are pretty harsh.” (Id.). She testified that the implanted stimulator “sometimes works, sometimes doesn't,” and that every two weeks for the prior four or five months she was seen at Indiana Polyclinic “for IV infusions, which is twice a month. One is Propofol, and they're adding Lidocaine with that.” (Id.). McCabe testified the infusions
.. help some. They help. They don't take them away, but they do help with the intensity of the pain, but I still get just as many. . it's not as bad as if I'm not being treated. So I get the infusions, which is also Ketamine and Lidocaine. That's every other two weeks. And then I also get Botox treatments that help maybe about, I would say, maybe 40% of the time. And that, again, is not taking away the pain, but it does help lessen the intensity. So instead of a level ten, I might have a level eight, but [there are] still a lot of days where I still get level-ten migraines.(ECF No. 15-16 at 71).
The Indiana Polyclinic forms in the record in this matter ask the patient to rate their pain and daily function on a scale of 1-10. The forms completed by McCabe's providers at Indiana Polyclinic do not record any “10” level headaches-the highest pain level from a headache reported by McCabe on these forms is an 8/10.
Counsel asked McCabe “what is the difference between a headache and a migraine,” and she responded: “A headache, for me, is I go by levels. So at the Polyclinic, they do levels from zero to eight. They don't use a ten-level scale. So, typically . I stay around three or four and peak, typically, to seven, eight when I have really bad migraines.” (ECF No. 15-16 at 72). She testified she had “three to four” “migraine days” per week. (Id.). She further testified that on those days she was doing “nothing” because her “head hurt so bad” that she couldn't see, and that on those days she was “throwing up,” laying on the couch, or laying in bed with ice packs. (Id.). She testified she experience nausea from the headaches and from the migraine medication, and that she injected sumatriptan instead of taking the sumatriptan pills (Imitrex) because the pills made her more nauseous than the shots. (ECF No. 15-16 at 72-73). She stated she used the sumatriptan or Imitrex twice per week, every week, because the limit on the use was twice per week. (ECF No. 15-16 at 73). McCabe testified she could not work when experiencing a migraine because the pain was “intense,” similar to her head “being in a vice and it crushing your head. That's what it feels like on almost a daily basis for me.” (Id.). She further testified that “when a migraine is that bad, which, for me, at least more than half of the month,” she could not concentrate, “look at a phone,” “look at a computer screen,” and could not “have lights.” (ECF No. 15-16 at 74).
As noted supra, the Indiana Polyclinic forms in the record in this matter ask the patient to rate their pain, and daily function on a scale of 1-10. Throughout the time period between the hearings with ALJ Whitfield (from December of 2017 through November of 2019) McCabe rated her worst pain as an 8 and her best pain as 2 or 3, with an average pain level between appointments as a 4. She stated on these forms (throughout the relevant period) that she generally needed medication for “breakthrough” pain often as one to three times per week and occasionally she needed breakthrough medication once or twice every other week.
At the hearing the vocational expert testified, with regard to “employer tolerances for off-task behavior,” that “[i]ndividual workers need to be on task an average of 95% of the day in order to meet the production standards set by their employers. That would translate to no more than an average of 5% off-task behavior during the eight-hour workday.” (ECF No. 15-16 at 85). With regard to absenteeism, the vocational expert testified that with regard to “unskilled work,” “employers who hire for unskilled jobs are not going to tolerate much more than one absence per month, including sick days, personal days, and vacation days,” and that “customary breaks” would be limited to a 15-minute break mid-morning and mid-afternoon and a half hour to an hour break at noon for lunch. (Id.).
Another telephonic hearing was conducted by ALJ Whitfield on February 2, 2021, at which McCabe testified and was represented by counsel. The ALJ admitted Exhibits 1A through 14A, 1B through 61B, 1D through 25D, 1E through 35E, and 1F through 35F. (ECF No. 15-16 at 40-41). The bulk of the hearing involved the ALJ questioning the vocational expert and an independent medical expert, i.e., a psychologist, in accordance with the Appeals Council's remand order. The psychologist testified with regard to McCabe's mental health limitations. (ECF No. 15-16 at 35-65).
At the hearing McCabe's counsel averred that the primary basis for disability was McCabe's migraine headaches. (ECF No. 15-16 at 42 (“she's disabled because of her migraine severity frequency and severity”)). McCabe testified that she was continuing to have migraine headaches “if not daily, then, you know, multiple times a week. It could be five to seven, it just depends on, you know, how things are going as far as weather, and stress, and things of that nature.” (ECF No. 15-16 at 47). McCabe also testified on February 2, 2021, that since moving to the Phoenix area in September of 2020, she had seen a neurologist twice (in December and first of January). (ECF No. 15-16 at 39-40).
At that hearing a different vocational expert (“VE”) than the expert testifying at the November hearing, opined that an employer would only tolerate being off-task for a maximum of 15% of the workday (“Anything greater than that would be work preclusive regardless of the skill or exertion level of the job”), and an employer would only tolerate one unexcused absence per month, stating: “Anything greater than that would also be work preclusive.” (ECF No. 15-16 at 60). In response to counsel's question as to whether a person who “required an unscheduled break for longer [than a couple of minutes], say due to a migraine headache,” i.e., a person who needed to “take an unscheduled break of .. just an hour,” outside of the “regular breaks,” the VE testified that “that would be work preclusive in my opinion, regardless of the skill or exertion level of the job.” (ECF No. 15-16 at 62). The VE testified that the necessity for any unscheduled break of longer than ten minutes would be “work preclusive.” (ECF No. 15-16 at 62-63).
In a decision issued April 23, 2021, the ALJ concluded McCabe was not disabled. (ECF No. 15-16 at 8-34). The ALJ determined McCabe did not engage in substantial gainful activity during the period from her alleged onset date of April 13, 2013, through her date last insured of March 31, 2019. (ECF No. 15-16 at 13). The ALJ noted that McCabe had made work attempts in 2014 and 2017, but that all income from this work “fell below the presumptive level of substantial gainful activity.” (ECF No. 15-16 at 14).
In the procedural history portion of the written decision the ALJ mentions the telephonic hearing conducted February 2, 2021, and does not mention the in-person hearing conducted November 9, 2019. (ECF No. 15-16 at 11).
The ALJ determined McCabe had the severe impairments of migraine headaches; fibromyalgia; complex regional pain syndrome; cervical and lumbar spine degenerative disc disease; left knee meniscal tear; obstructive sleep apnea; obesity; major depressive disorder; generalized anxiety disorder; and post-traumatic stress disorder. (ECF No. 1516 at 14). The ALJ also concluded that, through the date last insured, McCabe did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (ECF No. 15-15 at 14-16). The ALJ determined McCabe:
... had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that she could never climb ladders, ropes, or scaffolds and could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. Further, she could occasionally reach overhead and frequently reach forward and to the side, push and/or pull, handle, finger, and feel. She should have had no more than occasional exposure to extremes of heat and cold, excessive vibration, environmental irritants, such as fumes, odors, and gases, and poorly ventilated areas. She had to avoid all use of hazardous moving machinery and exposure to unprotected heights. She should not have driven or operated a motorized vehicle to perform job functions. She could work in an environment with a noise level not to exceed 3, moderate, and without strobe or flashing lights in the ordinary course of business. She could not perform complex, written or verbal communications and no complex decision-making. She was limited to simple, routine, repetitive tasks where the same routine tasks were performed over and over according to set procedures, sequence, or pace. She was limited to unskilled work with a short initial learning period of usually 30 days or less with no tandem tasks or teamwork, and no fastpaced assembly line production requirements. She could have occasional, brief interaction with the general public, coworkers, and supervisors (i.e. others are in the vicinity, but the person works independently) and no more than occasional, routine work place changes. Additionally, she could tolerate normal supervisory interactions as needed, including for example, performance appraisals, corrections, instructions, and directives as necessary. She could tolerate interactions to receive instructions as needed for task completion of simple, routine, repetitive work. She could exercise judgment in making work-related decisions commensurate with simple, routine, repetitive work such as described.(ECF No. 15-16 at 16-17).
The ALJ concluded McCabe could not perform her past relevant work as a human resources assistant, a human resources administrator, a charge account clerk, a phone sales associate, or as a recruiter, because each of those positions required physical and/or mental demands that exceeded the assessed residual functional capacity. (ECF No. 15-16 at 22-23). The ALJ further determined McCabe could not perform the complete range of unskilled light-exertional work. (Id.). Relying on the testimony of the vocational expert at the hearing, the ALJ concluded that, considering McCabe's age, education, work experience, and residual functional capacity, there were unskilled jobs performed at the light exertional level that existed in significant numbers in the national economy that she could perform, such as router, marker, and mail clerk. (ECF No. 15-16 at 23). The ALJ further determined that, if restricted to work performed at the sedentary level, McCabe could perform the unskilled jobs of type copy examiner, document preparer, and final assembler. (ECF No. 15-16 at 24). The ALJ further determined that, pursuant to the vocational expert's testimony, if McCabe was limited to sedentary work she could perform the jobs of type copy examiner, document preparer, and final assembler, and that these jobs existed in the national economy. (Id.). Accordingly, the ALJ determined, McCabe was not “disabled.” (Id.).
McCabe sought review of the ALJ's decision by the Social Security Appeals Council, which denied relief on December 6, 2021 (ECF No. 15-16 at 2-7).
V. Analysis of McCabe's Assignments of Error
A. The ALJ's determination at step three of the sequential evaluation
McCabe contends that at the third step of the sequential evaluation the ALJ erred by failing to find her migraine headaches were medically equivalent to a listed impairment, i.e., Listing 11.02B and/or Listing 11.02D.
At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. The Social Security “listings,” found at 20 C.F.R. part 404, subpart P, appendix 1, describe, for each major body system, impairments that are severe enough to be per se disabling. 20 C.F.R. § 404.1525; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999).
The claimant bears the burden of proving she has an impairment that meets or equals the criteria of an listed impairment. E.g., Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “Listed impairments are purposefully set a high level of severity because ‘the listings were designed to operate as a presumption of disability that makes further inquiry unnecessary.'” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013), quoting Sullivan v. Zebley, 493 U.S. 521, 532 (1990). The mere diagnosis of a listed impairment does not establish that a claimant meets or equals a listed impairment. See Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990). Rather, “[f]or a claimant to show that his impairment matches a listing, it must meet all of the specified criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Ford, 950 F.3d at 1148 (emphasis added), quoting Zebley, 493 U.S. at 530. It is the claimant's burden to prove his impairment meets all of the criteria of a listed impairment. Burch, 400 F.3d at 683.
An unlisted impairment or combination of impairments is equivalent to a listed impairment if medical findings, equal in severity to all of the criteria for the most similar listed impairment, are present. See Zebley, 493 U.S. at 531. See also 20 C.F.R. § 404.1526; SSR 83-19 (stating that an impairment is “equivalent” to a Listing only if claimant's symptoms, signs, and laboratory findings are “at least equivalent in severity” to the criteria for the listed impairment most like claimant's impairment). A determination of medical equivalence must rest on objective medical evidence, such as laboratory findings, rather than the claimant's report of the symptoms and severity of their impairment. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (stating a “finding of equivalence must be based on medical evidence only,” citing 20 C.F.R. § 404.1529(d)(3)). See also Merritt v. Colvin, 2014 WL 4980325, at *5 (D. Ariz. Oct. 6, 2014).
The SSA regulations defining “medical equivalence” provide:
(a) What is medical equivalence? Your impairment(s) is medically equivalent to a listed impairment in appendix 1 of subpart P of part 404 of this chapter if it is at least equal in severity and duration to the criteria of any listed impairment.
(b) How do we determine medical equivalence? We can find medical equivalence in three ways.
***
[(b)](2) If you have an impairment(s) that is not described in the Listing of Impairments in appendix 1 of subpart P of part 404 of this chapter, we will compare your findings with those for closely analogous listed impairments. If the findings related to your impairment(s) are at least of equal medical significance to those of a listed impairment, we will find that your impairment(s) is medically equivalent to the analogous listing.20 C.F.R. § 416.926.
Notably, the regulations state that a claimant's allegations of pain cannot substitute for a missing or deficient sign or laboratory finding to raise the severity of an impairment to that of a listed impairment. See 20 C.F.R. § 404.1529(d)(3). The Social Security regulations, § 404.1529(d)(3) provide:
(3) Decision whether the Listing of Impairments is medically equaled. If your impairment is not the same as a listed impairment, we must determine whether your impairment(s) is medically equivalent to a listed impairment. Section 404.1526 explains how we make this determination. Under § 404.1526(b), we will consider medical equivalence based on all evidence in your case record about your impairment(s) and its effects on you that is relevant to this finding. In considering whether your symptoms, signs, and laboratory findings are medically equal to the symptoms, signs, and laboratory findings of a listed impairment, we will look to see whether your symptoms, signs, and laboratory findings are at least equal in severity to the listed criteria. However, we will not substitute your allegations of pain or other symptoms for a missing or deficient sign or laboratory finding to raise the severity of your impairment(s) to that of a listed impairment. If the symptoms, signs, and laboratory findings of your impairment(s) are equivalent in severity to those of a listed impairment, we will find you disabled. If it does not, we will consider the impact of your symptoms on your residual functional capacity. (See paragraph (d)(4) of this section.)20 C.F.R. § 404.1529 (emphasis added).
Citing Listing 11.02B and 11.02D, McCabe notes: “There is no listing for migraine headaches but Social Security rulings and regulations direct the ALJ to evaluate whether a claimant's migraines medically equal Listing 11.02. See SSR 19-4p and see Social Security Program Operations Manual System (“POMS”) DI § 24505.015.” (ECF No. 16 at 6). The POMS sets forth multiple ways for the Commissioner, via the ALJ, to determine medical equivalence where the claimant has an impairment that is not described in the Listing of Impairments. See POMS DI 24505.015(B)(2)(b). POMS provides the following guidance in determining medical equivalence for unlisted impairments, noting the ALJ should: (1) discuss the claimant's impairment, medical findings, and non-medical findings; (2) discuss the listing considered the most closely analogous listing; (3) compare the findings of claimant's impairment to the findings of the most closely analogous listing; (4) explain why the findings of the claimant's impairment are at least of equal medical significance to the most closely analogous listing; and (5) cite the most closely analogous listing. Id. at 24505.015(B)(6)(c).
“POMS” is an acronym for the Social Security Administration Program Operations Manual System.
Listing 11.02B requires a claimant to suffer from “dyscognitive seizures occurring at least once a week for at least three consecutive months” despite adherence to treatment. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.02(B). Certain severe headache disorders may satisfy this listing, even though there is not a separate listing for headache disorders. See SSR-19-4p (“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)” (emphasis added)). To evaluate whether a primary headache disorder is equal in severity and duration to the criteria in 11.02B under SSR 19-4p, the agency considers:
[A] detailed description from an [acceptable medical source] (AMS) 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 (emphasis added).
Listing 11.02(D) also requires evidence of dyscognitive seizures, occurring at least once every two weeks for at least three consecutive months despite adherence to prescribed treatment, as well as marked limitation in physical functioning; understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing oneself. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.02(D); SSR 19-4p, 2019 WL 4169635, at *7. To evaluate whether a primary headache disorder is equal in severity and duration to the criteria in 11.02(D), the ALJ considers the same factors it considers for 11.02(B) and also considers whether the overall effects of the primary headache disorder on functioning results in marked limitation in: physical functioning; understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing oneself. SSR 19-4p, 2019 WL 4169635, at *7.
Social Security Program Operations Manual System (“POMS”) DI § 24505.015, which was applicable at the time of the ALJ's 2019 decision, provides the following illustrative example of how Listing 11.02 is utilized to assess chronic migraine headaches.
A claimant has chronic migraine headaches for which she sees her treating doctor on a regular basis. Her symptoms include aura, alteration of awareness, and intense headache with throbbing and severe pain. She has nausea and photophobia and must lie down in a dark and quiet room for relief. Her headaches last anywhere from 4 to 72 hours and occur at least 2 times or more weekly. Due to all of her symptoms, she has difficulty performing her ADLs. The claimant takes medication as her doctor prescribes. The findings of the claimant's impairment are very similar to those of 11.02, Epilepsy, non-convulsive. Therefore, 11.02 is the most closely analogous listed impairment. Her findings are at least of equal medical significance as those of the most closely analogous listed impairment. Therefore, the claimant's impairment medically equals listing 11.02.Rader v. Commissioner of Soc. Sec., 2018 WL 4087988, at *3 (D. Idaho Aug. 27, 2018), quoting POMS DI § 24505.015(B)(7)(B) (effective March 29, 2017).
The ALJ considered whether McCabe's headaches were medically equivalent to the impairments listed at 11.02(B) and 11.02(D), and concluded McCabe did not have an impairment or combination of impairments that met or medically equaled a listed impairment. With regard to McCabe's headaches, the ALJ found and concluded:
Further, in considering migraine headaches under listing 11.02B pursuant to SSR 19-4p, the undersigned finds that the severity did not medically equal. Specifically, the evidence of record did not present a detailed description from an acceptable medical source of a typical headache event, including all associated phenomena, the frequency of headache events, adherence to prescribed treatment, side effects of treatment and limitations in functioning that may be associated with the primary headache disorder or effects of its treatment. The record presented forms completed by Matthew Rupert, M.D., who indicated that it was “reasonable to expected decreased ability to concentrate” when the claimant had a severe headache (Exhibit 17F/5).
However, Dr. Rupert did not otherwise opine specific functional limitations secondary to headaches or related treatment (Exhibit 17F).
As such, the evidence also falls short of medically equaling 11.02 D, which requires consideration of the same factors as 11.02 B, as well as, the overall effects of the primary headache disorder on functioning with marked limitation in: physical functioning; understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing oneself. As discussion below further supports, in spite of the chronicity and severity of reported migraines, the functional impact of such over the longitudinal period at issue did not reach a marked level. Rather, during the course of treatment, the claimant had multiple reports of improvement with treatment, and on multiple exams, she presented with no significant diminishment in mental functioning (See e.g. Exhibit 9F/56, 59; 12F/4; 4F; 21F/2-3, 22-23).(ECF No. 15-16 at 14-15).
McCabe asserts the ALJ's conclusion at the third step of the requisite analysis is not supported by substantial evidence. McCabe asserts:
... McCabe's attorney made this argument prior to the 2016 hearing and to the ALJ during the 2021 hearing and in post hearing brief after the last hearing and also with the Appeals Counsel [sic]. AR 574-578, 1581, 19691970 and 2300-2031.
The ALJ found that McCabe did not meet or equal listing 11.02 stating that “[t]he evidence of record did not present a detailed description from an acceptable medical source of a typical headache event, including all associated phenomena, the frequency of headache events, adherence to prescribed treatment, side effects of treatment and limitations in functioning that may be associated with the primary headache disorder or effects of its treatment.” AR 1594. The ALJ cited to an incomplete residual functional capacity assessment completed by a treating doctor at Vortex Spine and Pain, Mathew Rupert, M.D., that evaluated McCabe's CRPS. AR 1498.
[footnote 2: Dr. Rupert noted that McCabe's pain was chronic, intractable neuropathic pain that had failed over six months of conservative care. McCabe had improvement with the stimulator. Dr. Rupert surgically implanted an electrical stimulator into McCabe's skull on December 21, 2016. AR 1473 and 1774. Dr. Rupert's diagnoses and treatment was based on McCabe's CRPS, in particular for radiating neck pain. AR 1274 and 1483. McCabe initially reported significant improvement with the electronic stimulator in the range of 85-90%. Prior to this, McCabe's doctors characterized her pain and migraines as chronic and intractable. AR 1429, 1515, 1518, 1530, 1538, 1544, 1547[.]](ECF No. 16 at 7-8 & n.2).
Counsel might be referring to the record on appeal at 2030 to 2031, a written “Closing Statement” submitted to the ALJ on February 2, 2021, where counsel argues McCabe's migraine headache disorder constituted a “primary headache disorder pursuant to SSR 19-4p,” and was medically equivalent to Listing 11.02B (ECF No. 15-23 at 40). Counsel cites to places in the record supporting a claim of “multiple headache events per week,” including Indiana Polyclinic records “documenting reports of migraine frequency of 1-2 per week throughout 2020,” and treatments that were “all without success.” (ECF No. 15-23 at 40-41).
Although McCabe's reports of her symptoms, as documented in her treatment notes, indicate light sensitivity (photophobia), the vast majority of the treatment notes indicate no aura or other visual disturbance, or alteration of awareness. At some appointments McCabe reported nausea or vomiting, and at other times McCabe did not report nausea or vomiting. Additionally, there is no statement from an accepted medical source detailing a hindrance in physical functioning; understanding, remembering, or applying information; interacting with others; or adapting or managing oneself, when McCabe was experiencing a migraine headache. There is no statement from an accepted medical source in the record at all describing specific functional limitations caused by the migraines; the only medical source statements in the record are those from Dr. Rupert and Dr. Orr, which do not describe specific functional limitations or provide a detailed description of a typical headache event, including all associated phenomena 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. None of McCabe's pain management providers or neurologists provided a medical source statement averring as to the frequency and intensity of McCabe's migraine headaches and opining as to the impact of the headaches on her ability to do work-related tasks or to maintain an 8-hour workday, five days per week. All of the medical evidence as to the frequency and intensity of the migraines are written records of McCabe's reports to her physicians and their observations at the time of the appointment. There is no doubt, per her physicians' reports and clinical findings, that McCabe suffered from headaches and migraines, but there is no medical evidence of record, as distinct from McCabe's reports, establishing the frequency and intensity of the migraines or describing associated phenomena and limitations in functioning. Although McCabe reported photophobia and occasionally vertigo, she did not report any other visual disturbances (such as aura), and the vast majority of the treatment notes indicate the migraines were “without aura.” There are only two treatment records (which cover a span of six years) where a physician observed McCabe was being seen in a darkened room to accommodate her photophobia.
The reports of McCabe's migraine headache events are interspersed throughout the record, sometimes conflicting with regard to the “phenomena” and frequency of the migraines, and are based almost solely on McCabe's reports to her medical care providers rather than based on lab or clinical findings or the providers' own observations. The treatment notes describe the migraine headaches as status nonmigrainosus and occasionally status migrainosus, without aura, and sometimes as intractable and sometimes as amenable to some treatments. McCabe fails to meet or equal Listing 11.02(B) or Listing 11.02(D) because the record contains no comprehensive and detailed statement from an accepted medical source detailing a typical headache event, including all associated phenomena, the frequency of headache events, adherence to prescribed treatment, side effects of treatment and limitations in functioning that may be associated with the primary headache disorder, or the effects of its treatment of McCabe's headaches. See Plummer v. Colvin, 2014 WL 7150682, at *11 (D. Ariz. Dec. 16, 2014); Miller v. Astrue, 2011 WL 671752, at *12 (D. Ariz. Feb. 17, 2011). Given the high bar for establishing medical equivalency to a listing, the ALJ's conclusion that McCabe's migraines were not medically equivalent to a listed impairment was not legal error or unsupported by the record evidence.
2. Assessing McCabe's residual functional capacity
McCabe contends the ALJ erred by “including his lay medical opinion in the residual functional capacity.” (ECF No. 16 at 11). McCabe argues:
The ALJ erred by including his own medical opinion in the residual functional capacity assessment. In particular, the ALJ opined that McCabe could work at an occupation that has a noise level 3 and that has no strobe lights. AR 1595. There is no medical opinion in the record that assessed these limitations. By conceding that McCabe needs work limitations in noise level and in the amount of and type of light that she can tolerate, the ALJ erred in providing his own medical opinion instead of seeking an acceptable medical opinion for these limitations. ALJs are “simply not qualified to interpret raw medical data in functional terms.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) .(ECF No. 16 at 11-12).
The Commissioner argues the ALJ did not err in assessing a residual functional capacity that included limitations not assessed by a medical opinion:
Insofar as the ALJ adopted greater restrictions than Dr. Rupert or the state agency medical consultants, this shows that the ALJ fulfilled her responsibility of evaluating medical evidence in the record as a whole (including medical source opinions), resolving conflicts and ambiguities in the evidence, and making findings regarding what the evidence showed.
***
An ALJ does not “play doctor” simply because the RFC differs from a medical opinion, or by reviewing medical evidence that a doctor has not. The Ninth Circuit has rejected Plaintiff's argument, having held that “the ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.” Rounds v. Comm'r of Soc. Sec., 807 F.3d 996, 1006 (9th Cir. 2015) (citing Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)); Bufkin v. Saul, 836 F.App'x. 578, 579 (9th Cir. 2021)
(unpublished) ... the regulations expressly provide than an ALJ must evaluate objective medical evidence in evaluating a disability claim. See 20 C.F.R. § 404.1513(a)(1). ...(ECF No. 17 at 13, 15).
An ALJ “cannot usurp the role of doctors when interpreting medical evidence, particularly highly technical medical evidence,” Leusch v. Berryhill, 358 F.Supp.3d 896, 906 (D. Ariz. 2019), and cannot “reject the informed medical opinion of [a claimant's] primary treating physician and instead improperly substituted her judgment for that of the doctor,” Trevizo, 871 F.3d at 683. However, where there is no record medical evidence (particularly that of a treating physician) opining as to how an impairment creates a specific functional limitation, it is well within the ALJ's purview to synthesize the medical evidence and formulate a residual functional capacity based on the record as a whole, including treatment records and the claimant's own testimony. See, e.g., Lopez v. Saul, 2020 WL 6526197, at *8 (E.D. Cal. Nov. 5, 2020). See also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (“the final responsibility for deciding [RFC] is reserved to the Commissioner”); §§ 404.1545(a)(1), 416.945(a)(1) (“We will assess your [RFC] capacity based on all the relevant evidence in your case record.”); Best v. Commissioner of Soc. Sec. Admin., 2022 WL 227094, at *10 (D. Ariz. Jan. 26, 2022) (“Contrary to Plaintiff's assertion, the ALJ did not rely on her ‘lay impression' of the medical evidence. Rather, the ALJ simply summarized the medical evidence in assessing Plaintiff's RFC. This was proper because it is the responsibility of the ALJ ... to determine RFC.” (citations and quotation marks omitted)).
The ALJ in this matter comprised a residual functional capacity to include a limitation based on McCabe's reports that loud noises exacerbated or promulgated her headaches. The ALJ's inclusion of this limitation was a rational interpretation of the evidence and, accordingly, there was no legal or harmful error in the ALJ's inclusion of this limitation in the residual functional capacity. See Robinson v. Commissioner of Soc. Sec. Admin., 2022 WL 9833906, at *6 (D. Ariz. Oct. 17, 2022), cited in Hardin v. Commissioner of Soc. Sec. Admin., 2022 WL 4092644, at *6 (D. Ariz. Sept. 7, 2022) (“To the extent Plaintiff advocates for an alternative interpretation of the evidence in the record, the Court will not second-guess the ALJ's reasonable interpretation, even if such evidence could give rise to inferences more favorable to Plaintiff.”).
3. McCabe's symptom testimony
The issue before the Court is whether McCabe's migraine headaches would result in her being absent from work more than once per month, and likely result in her being off-task more than 15% of the time or require her to take unscheduled breaks, all of which would, per the vocational experts who testified at the 2019 hearings, be “work preclusive.” McCabe contends the ALJ failed to provide clear and convincing reasons for “rejecting] her subjective complaints” regarding the degree to which her migraines impacted her ability to perform work-related tasks on a sustained basis. (ECF No. 16 at 14).
An ALJ must engage in a two-step analysis to evaluate a claimant's subjective symptom testimony regarding the degree and disabling nature of their symptoms. See, e.g., Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, a claimant who alleges disability based on subjective symptoms must produce objective evidence of an underlying impairment which could reasonably be expected to produce the alleged symptoms. Trevizo, 871 F.3d at 678. The claimant need not show their impairment could reasonably be expected to cause the severity of the alleged symptoms, they need only show that it could reasonably have caused some degree of the symptoms. Id. If the claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of their symptoms only by offering “specific, clear and convincing reasons for doing so.” Lingenfelter, 504 F.3d at 1036 (internal quotations omitted). See also Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison, 759 F.3d at 1015, quoting Moore v. Commissioner of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). See also Sorber v. Commissioner of Soc. Sec. Admin., 362 F.Supp.3d 712, 724 (D. Ariz. 2019).
None of McCabe's treating physicians opined that she was malingering, and the ALJ did not make a finding of malingering.
Under Ninth Circuit case law and Social Security regulations, clear and convincing reasons for rejecting a claimant's subjective symptom testimony include: substantial conflicting medical evidence, effective medical treatment, a claimant's noncompliance with prescribed treatment, inconsistencies in the claimant's testimony and reports of daily activities inconsistent with the alleged symptoms, and testimony from physicians and third parties about the nature, severity and effect of the symptoms. See Tommasetti, 533 F.3d at 1040; Lingenfelter, 504 F.3d at 1040; Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). An ALJ may not reject a claimant's subjective complaints “based solely on a lack of medical evidence to fully corroborate the claimant's allegations.” Sorber, 362 F.Supp.3d at 725, citing Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). A claimant is not required to show “that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Nor must a claimant produce “objective medical evidence of the pain or fatigue itself, or the severity thereof.” Garrison, 759 F.3d at 1014.
Clear and convincing reasons for not crediting a claimant's symptom testimony include an instance where the severity of the alleged symptoms is incompatible with the claimant's daily activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). A claimant's reported or observed daily activities may be “grounds for an adverse credibility finding ‘if a claimant is able to spend a substantial part of [her] day engaged in pursuits involving the performance of physical functions that are transferable to a work setting.'” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (emphasis added), quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
“[T]he ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony. The evidence upon which the ALJ relies must be substantial.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (internal citation omitted). See also Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). The ALJ must specify what testimony is not credible and identify the evidence that undermines the claimant's complaints-“[g]eneral findings are insufficient.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (internal quotation marks omitted).
With regard to McCabe's migraine headaches, the ALJ noted in the decision under review:
The claimant alleged a history of migraines, which she stated worsened overtime and became chronic. She alleged that most days were spent in bed and that migraines worsened her anxiety and depression (Exhibit 12E [the Adult Function Report completed September 15, 2014 at ECF No. 14-7 at 78-85]; 9E [the Adult Function Report completed June 16, 2013, at ECF No. 14-7 at 58-65]. Similarly, at the hearing before remand, the claimant testified that on a typical day she did not sleep much. She testified that after waking up at 2:30 in the morning she would be awake for 3 to 4 hours and that she might then sleep on the couch for 2 to 3 hours. She noted that she had a constant headache and that she did little activity when a migraine occurred. She testified that some days she spent all day in bed or on the couch. The claimant testified that daily headaches and migraines, as well as, anxiety and depression kept her from working. She noted difficulties concentrating due to migraines. She testified that she could not lift more than 5 pounds because doing so hurt and that straining too much hurt her head and back. She further noted that she could stand for 10 minutes before needing to rest due to pain in the back and neck, which she said could cause migraines. She also testified that she could sit for maybe 45 minutes to an hour before needing to move around. She described that 4 to 5 days a week she did no activity except trying to alleviate head pain. At the hearing upon remand, the claimant testified that migraines have continued to be of the same intensity and duration as before. She indicated that migraines occurred daily or multiple times a week, which she noted depended upon such factors as weather and stress.
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.(ECF No. 15-16 at 17-18) (emphasis added). The ALJ further found and concluded:
As to physical severity, through the date last insured, medical records revealed chronic pain complaints, namely secondary to migraine headaches, as well as, of the low back and neck in context of morbid obesity with a BMI generally over 40 (See e.g. Exhibit 2F/31; 3F/28-29; 6F/29, 88-89; 10F). However, during such time, the severity of the claimant's complaints was not entirely consistent with the evidence of record. For example, shortly following the alleged onset date, in August 2013, lumbar spine imaging showed severe left-sided facet arthritis, but no focal disc herniation or significant central stenosis. Despite the degree of low back pain alleged, imaging showed no overall significant central stenosis or clear direct nerve root impingement (Exhibit 1F/7).
Further, while there were treatment trials and adjustments, some of which did not alleviate pain, in part, the claimant did report improvement. For example, during an October 2013 follow-up for headaches, the claimant disclosed doing remarkably better. The claimant reported that headaches began to improve before she started Nardil and attributed this to medication modification and diet change, which was required before starting that medication (Exhibit 2F/8; 3F/25, 27). The claimant noted that since starting Nardil, she had great results and her mood improved greatly. She disclosed going out more and that she felt more comfortable with doing things outside of her home (Exhibit 2F/8).
Subsequent treatment notes indicated other treatment modalities had not helped, such as Botox injections, and that considerable weight gain occurred while taking migraine medications. The claimant's BMI increased to 47 (See e.g. Exhibit 6F/75, 77; 1F/38; 3F/17, 19). However, during March and June 2014 follow-ups, the claimant disclosed some waning severity. For example, almost daily headaches were noted, but which the claimant indicated low ratings of 1 to 3. She further noted her recent diagnosis of mild obstructive sleep apnea with a notable 23-pound weight loss since that diagnosis (Exhibit 5F/55; 6F/29, 37; 10F/49). In June 2014, the claimant's BMI decreased to 37. Moreover, during such time, she presented unremarkably on exam with no motor weakness and an intact gait. She further had intact balance, no sensory loss, and intact coordination. She had normal fine motor skills (Exhibit 6F/30; See also 6F/39). Notably, there was no change to headache prevention as Namenda worked well without any side effects. Inderal dosage was increased only for added benefit. She also continued Sumavel and Imitrex tabs for acute migraine (Exhibit 6F/30; See also 6F/39).
***
Moreover, during the course of treatment between 2015 and 2016, there were reports and signs of improvement. For example, with physical therapy for fibromyalgia, there was noted increased strength (Exhibit 9F/83). Notably as well, at that time, the claimant indicated migraines
remained stable with oxycontin and that she took Imitrex as needed (Exhibit 9F/83). Additionally, between October and December 2015, there was multiple notes of symptoms improving (Exhibit 9F/67, 63, 60). At that time, with increased dosage of fentanyl patch, the claimant reported improvement in headaches (Exhibit 9F/60, 63). Into 2016, the claimant continued with such treatment (Exhibit 9F/56, 59). Additionally, after a nerve stimulator trial in November 2016, the claimant had notable improvement in head pain with 85 to 90% relief. She reported having 1 migraine during the trial and that daily headaches were non-existent (Exhibit 12F/4). Such an admission wholly contrasts with the alleged frequency and severity of migraines and strongly suggests that headaches did not limit the claimant to the extent alleged during the period at issue.
***
Also, through the remainder of the period at issue, through the date last insured of March 31, 2019, medical records generally showed no significant physical decline. Rather, for example, due to the success of the stimulator trial in November 2016, the claimant underwent permanent placement of such in December 2016 (Exhibit 15F/8, 14, 17, 29). Also, during the course of subsequent treatment in 2017, the claimant reported she still had 3 to 4 headaches a week, but that headaches did improve (Exhibit 13F/4). Similarly, during another follow-up for neck and head pain, the claimant reported doing really well overall and able to wean off Oxycontin. She noted she still had some bad episodes, but much less (Exhibit 15F/2; See also 15F/7).
It is noted that treatment did not entirely alleviate head pain as there were continued reports of intractable migraines (See e.g. Exhibit 19F/6, 18, 24). During such time, the claimant was also positive for tender points and muscle spasm on exam and additional treatment included occipital nerve blocks and cervical paraspinal trigger point injections (See e.g. Exhibit 24F/25, 18, 10; 20F/2, 27, 29; 23F/125). However, as noted before, the functional impact of such appeared less than remarkable as she continued to present without neurologic or range of motion deficits. The claimant retained normal strength and a normal gait (See e.g. Exhibit 24F/25, 18, 15, 12). As such, the undersigned finds restriction to a limited range of light work with the postural, manipulative, and environmental limits set out above adequately account for the claimant's symptoms and severity.(ECF No. 15-16 at 18-20).
The undersigned also considered forms completed in September 2017 in which Dr. Rupert noted that it was “reasonable to expect decreased ability to concentrate” when the claimant had a severe headache and that “possibly” she would need unscheduled breaks during an 8-hour workday. Dr. Rupert also indicated that moderate stress was okay (Exhibit 17F/5).
The undersigned accords this little weight as the doctor's language is vague without further explanation of functional impact. Dr. Rupert's comments alone are conjecture and are not tantamount to what the claimant could perform in spite of her impairments.(ECF No. 15-16 at 21).
Additionally, the ALJ noted that, “as with migraines,” the alleged severity of chronic regional pain syndrome and fibromyalgia “was not entirely consistent with clinical workup and treatment notes through the date last insured,” noting relatively mild findings on cervical spine imaging. (ECF No. 15-16 at 18-19). The ALJ opined McCabe's subjective complaints regarding her back impairments were not supported by the imaging and other tests and examination reports. (Id.).
McCabe asserts:
The ALJ found McCabe's subjective complaints were not credible citing to a treatment note from October 2013 where McCabe reported feeling “remarkably better” due to medication modification. AR 1597 ¶4. The medication modification was the beginning of a treatment with Nardil, which is an antidepressant medication sometimes used for migraines that McCabe's previous neurologist would not prescribe. AR 673. ..
This issue never came to pass because by January 9, 2014, treatment notes evidence that McCabe was already off the Nardil. Her headaches had returned with throbbing, photophobia, phonophobia and nausea with occasional vomiting. AR 698. The migraines were lasting between 1-8 days. AR 638. Since her last visit she had not been doing well. ..
The ALJ found McCabe's subjective complaints not credible stating that that during 2015 and 2016 there were reports and signs of improvement. AR 1598. The ALJ's analysis is contained in a paragraph as follows:
***
.. Additionally, after a nerve stimulator trial in November 2016, the claimant had notable improvement in head pain with 85 to 90% relief. She reported having 1 migraine during the trial and that daily headaches were non-existent (Exhibit 12F/4). Such an admission wholly contrasts with the alleged frequency and severity of migraines and strongly suggests that headaches did not limit the claimant to the extent alleged during the period at issue. See ALJ decision at ¶ 1598
The ALJ grossly isolates the record when creating this paragraph where he paints the picture of a person that has had essentially nothing but
improvement between 2015 and the end of 2016. ... The ALJ's analysis does not match up with the record. If McCabe's symptoms were so minor and manageable during this time, then her doctors would not have to continue to prescribe fentanyl. AR 1396. In fact, the ALJ noted that the fentanyl was increased during this time. AR 1598. . For example, the ALJ cited to a treatment record dated August 28, 2015 at 9F83 (AR 1198) in this same paragraph stating that McCabe reported her migraines were stable with OxyContin. AR 1598.
A review of this treatment note conflicts with the ALJ's rosy portrayal of McCabe's situation at this time. AR 1198. The treatment note begins with the notation that McCabe completed two lidocaine infusions but was unclear of any benefit since she was without OxyContin and instead was on Opana ER (hydromorphone). AR 1198. McCabe was interested in scheduling more infusions. McCabe noted that her headaches had increased. (Emphasis added). Id. .
***
... The ALJ also cherry picks additional treatment notes. For example, the ALJ cites to a treatment note from July 10, 2017, and notes that McCabe reported doing really well overall and that she was able to wean off OxyContin AR 1461. However, the ALJ did not mention that McCabe noted that she still has bad pain episodes. AR 1462. ... Yes, McCabe reported she had much less severe episodes, but her severe episodes used to be every day. Her pain at that time was still constant but mild on days that it is not exacerbated. .
... The ALJ discusses some of this evidence but never directly addresses the credibility of the reported frequency or the impact of such migraines on McCabe's attendance and ability to sustain full-time employment. ...
Treatment records from dated March 8, 2019 document that the migraines continued up until the date last insured. ... Treatment records into 2020 evidence that the migraines continued past the date last insured. AR 3033. McCabe was receiving nerve blocks and her doctors still described her condition as chronic intractable migraine without aura.(ECF No. 16 at 15-21).
The ALJ improperly rejected McCabe's symptom testimony based solely on the medical record and did not to specific examples of McCabe's testimony and comparing that testimony to specific medical evidence. Instead the ALJ broadly concluded McCabe's representations of the intensity and intractability of her chronic migraine and body pain were not supported by the entire medical record (isolating single treatment notes in a voluminous record), and somewhat vaguely implying McCabe's representations of the severity and frequency of her migraine pain could be discounted because the medical record did not support her allegations regarding her body pain, i.e., her fibromyalgia and back pain. Additionally, the ALJ cherry-picks the record to find instances where McCabe's pain was temporarily relieved by some medication and was temporarily relieved by the neurostimulator. However, the record as a whole indicates that any relief from the migraine headaches provided by various treatments and procedures was short-lived.
Records from an office visit dated February 28, 2013, just before McCabe's alleged onset date, with Dr. Foley, state:
6 year history of migraine without aura, severe, throbbing, associated with photophobia, phonophobia and nausea and occasional vomiting, lasting 1-3 days “usually” “Oral Imitrex tables worked extremely well for her.” Since her last visit, has been taking Namenda, Elavil and Inderal. “Oral Imitrex and Sumavel are her triptans of choise for acute migraine. She took Methergine for 2 weeks to break her status migrainosus. She had no headaches while she was on Methergine, but [when] she stopped Methergine her headaches spiraled out of control again she took a Sumavel for severe migraine yesterday which worked to alleviate the headache for 4 hours, but then headaches came back again.(ECF No. 15-11 at 10). Notes from February 12, 2013, state:
Since her last visit, she has been taking Namenda and Inderal. She is tolerating Namenda very well for her headaches and initially it worked well. However, at her last visit, we increased Inderal because she is having increased frequncy of headaches again. Oral Imitrex and Sumavel are her triptans of choice for acute migraine. [U]nfortunately, she gets frequent status migrainosus. She is been having migraines every day. She is awakening with it every single day. If she takes Imitrex or Sumavel she can get about 7 hours of relief. She is not sure what triggered this migraine.(ECF No. 15-11 at 19).
On February 28, 2013, Dr. Curtis noted a history of migraine headaches without aura, “associated with photophobia, phonophobia and nausea and occasional vomiting,” which “last between 1 and 3 days usually,” and Dr. Curtis indicated McCabe's migraine headaches were, at that time, intractable:
She occasionally wakes up with a headache. Imitrex tablets worked extremely well for her. On occasion she has to re-dose. Unfortunately she usually also has to go to bed with migraine for a few hours, even after taking Imitrex.(ECF No. 15-14 at 18). Because Methergine worked to break the status migrainosus, “but also she had no migraines,” the doctor considered Methergine for “long-term headache prevention,” and because McCabe could not take triptans and Methergine at the same time she was given percocet “for breakthrough migraine to be used infrequently,” and the doctor decided to “wean [McCabe] off of Elavil, Inderal and Namenda.” (ECF No. 15-14 at 20-21). The doctor further noted: “In the event Methergine does not [illegible] prevention, we are going to get her set up for Botox evaluation. She has failed Topamax, Elavil, Inderal, Namenda, magnesium, Zoloft, Prozac as headache prevention. She has failed Relpax, Amerge, Frova, and oral Imitrex has limited benefit for acute migraine.” (15-14 at 21).
Medical notes from March 12, 2013, state: “when she weaned off of Elavil [s] he had a severe migraine over the weekend that lasted for 3 days. She went to an urgent care for an injection.” (ECF No. 15-14 at 22). The doctor also noted: “She had one good week on Methergine, but now has had several days of headaches. Her headaches tend to come in clusters and can last for a week or more at a time, requiring absence from work.” (ECF No. 15-14 at 24).
Notes authored by Dr. Curtis dated April 4, 2013, state:
Since her last visit, she stopped Methergine. She is back to using her trip[tans] as needed. She is still in status migrainosus. She has worked up to Elavil 50 mg for headache prevention. She is having more problems with migraines. She had her evaluation for Botox and is awaiting insurance approval which should be 2-4 weeks.(ECF No. 15-14 at 30) (emphasis added). The doctor listed failed medications for prevention Topamax, Inderal, Namenda, magnesium, Methergine, Zoloft, and Prozac, and further noted Relpax, Amerge, Frova, and Imitrex had “limited benefit” in treating McCabe's acute migraines. (Id.). The doctor noted McCabe “may need to see the Michigan headache clinic if her headaches continue.” (ECF No. 15-14 at 32). The doctor gave McCabe a “Toradol, Phenergan, [and] Benadryl injection” for the pain she was experiencing that day. (Id.).
Two weeks later (April 18, 2013), McCabe's headaches were “on a slightly better course.” (ECF No. 15-14 at 34). “They are still occurring daily, but they have been less severe. She is on Elavil 100 mg daily and Zanaflex 2 mg 3 times a day for headache prevention. She is going to be scheduled for Botox at the end of April.” (Id.).
Throughout 2013 McCabe's headaches did not consistently improve. On December 23, 2013, Dr. Curtis noted:
Since her last visit, she has not been doing well at all. She had Botox injections which did not help at all. She [t]hen went to the Michigan headache clinic. She has been on amitriptyline 100 mg daily, Nardil, Keppra, Methergine and hadolol [sic] without any improvement of her migraines. She has a daily migraine. 4/5. ...(ECF No. 15-14 at 38). The doctor opined:
We are going to systematically withdraw[] from several medications that the patient was put on by the Michigan headache [] clinic. She has gained over 50 pounds on amitriptyline. Therefore, we are going to withdrawal amitriptyline first over the next 3 weeks. She will then stop Keppra. She will then wean off of Methergine. She will then stopped Nardil. She will stay corgard as a headache preventative. She will use Toradol, Zofran, and DHE as needed for breakthrough migraine.
She is still having daily migraines. I suggested that she followup with the psychological therapist at the Michigan headache clinic, including biofeedback. The patient would like to try a pain management physician. She has already scheduled an appointment for the Indiana pain clinic.(ECF No. 15-14 at 40).
Exhibit 9F contains medical records from the Center for Pain Management in Indianapolis where McCabe was treated for chronic pain from both fibromyalgia and migraine headaches, and where she was seen by a physician, an occupational therapist, and a psychotherapist. (ECF No. 14-9 at 1-42). McCabe was initially diagnosed as suffering from “cervicogenic headache,” and on April 30, 2014, it was noted that McCabe did not receive “adequate relief' from “narcotic medications and NSAIDs (and adjunctive medications, neurology evaluation, botox injections).” (ECF No. 14-9 at 42). The records from this treatment provider note 41 “encounters” from April 17, 2014 through February 17, 2016, for chronic migraine, fibromyalgia, sacroiliitis, and “longterm use of high-risk medication.” (ECF No. 14-9 at 52-53).
Treatment notes from May 22, 2014 (ECF No. 14-9 at 150) state: “Patient would like to discuss her headaches, medication to prevent them and rescue meds for intense acute headaches.” (ECF No. 14-9 at 152). These notes further state:
Results of medial branch block indicate that her headaches are not of cervical origin. She has seen many specialists in the past without any significant breakthrough. .. Many of her medication trials seemed to help for about two weeks +/- but not after that. She probably had fewer or less severe headaches and neck pain for two to three weeks after her injections, but this could be just within her usual variability, or due to systemic steroid effect ...”(Id.).
A treatment note by Dr. Curtis dated June 30, 2014,
Since her last visit she is doing better. She has a headache almost every day rating 1-3/9. She is having [] frequent migraines for which she uses Imitrex.
Her only headache preventative is Effexor 150 mg daily. She is on Corgard, but the dose is been reduced just for blood pressure control. .. She has been seen a pain clinic for her headaches. She is had facet injections without good relief. She is scheduled for Lidoderm injections next.(ECF No. 15-14 at 50).
A Center for Pain Management note from July 21, 2014, states: “Patient with [headache] today. HAs 5 out of the last 7 days. Overall without significant change. Pain variable 2-7/10 through out the day. Baclofen [a muscle relaxer] and Indometh[acin, a NSAID] helping. S/P CEST, no relief.” (ECF No. 14-9 at 143).
A note dated September 5, 2014, states that, after a second lidocaine infusion, there was “[n]o change in pain levels, persistent [headaches] ... without relief. HA daily, constant pain 3-4/10. Episodes of acute pain 3 days/week. Off methotrexate, increase in HAs.” (ECF No. 14-9 at 139).
On October 17, 2014, McCabe reported daily headaches and migraines, but that an “increase in Xartemis [oxycodone and acetaminophine]” was helping. (ECF No. 14-9 at 134). The records note she was experiencing “[f]lares #11/month. manageable. Decreased in intensity. Imitrex helps better now.” (Id.). Due to the cost of Xartemis (oxycodone and acetaminophen), i.e., $325 per month, a “change to OxyContin” was ordered. (Id.).
Notes from the Center for Pain Management dated December 15, 2014, indicate McCabe was experiencing migraine headaches two to three times per week and that the headaches lasted for “days,” were accompanied by vertigo, produced “severe and unchanged” pain, and McCabe's headaches were reported as “still the same pain as when first seen here.” (ECF No. 14-9 at 126). McCabe was on Imitrex and Corgard for the headaches, but she could no longer take DHE. (Id.).
In March of 2015 an “increase in OxyContin,” was ordered which was “[h]elping great for HA pain,” but not helping McCabe's fibromyalgia pain. (ECF No. 14-9 at 109). The physician's notes state:
Lyrica effective for Fibromyalgia pain as well as for her migraines with a reported decrease in frequency in migraines to [once every] 2 weeks (Approx.). This has made a huge difference for the patient. She also takes Imitrex when needed for these times. Lyrica is currently too expensive, would like to return after deductible is met.(Id.). A note from March 10, 2015, indicated McCabe's insurance would not cover Lyrica and gabapentin was not helping. “She is having more frequent migraines and needing to use the Imitrex more often.” (ECF No. 14-9 at 117).
On April 22, 2015, the treatment notes indicate lidocaine was not helpful for migraines, but that the clinic would continue the treatment to see if they were effective for treating the pain from fibromyalgia. (ECF No. 14-9 at 109).
On May 20, 2015, McCabe told her physician at the Center for Pain Management that her “migraines are under good control,” that she could do “limited light house cleaning,” and that she was applying for disability. (ECF No. 15-13 at 107). However, a treatment note from the Center for Pain Management dated May 26, 2015, states: “Pain Scale: 6/10. Note: has fibro pain everyday - states nothing helps with it. Fibro pain started/became bad after started Oxycontin for HA's/migraines - which helped with the daily HA. Now getting about 2 migraines every 2 weeks and can control w/ Imitrex. Lowest in last 30 days - 5; highest 9+. ..” (ECF No. 15-13 at 105).
On June 15, 2015, McCabe was still “stable on OxyContin” and using Imitrex. (ECF No. 14-9 at 94).
“Stable” does not mean better or resolved, or that a claimant's condition is not disabling. See Petty v. Astrue, 550 F.Supp.2d 1089, 1099 (D. Ariz. 2008) (“The Court initially notes that a condition can be stable but disabling”); Englehardt v. Astrue, 2012 WL 12878758, at *7 (D. Ariz. 2012) (“But, the fact that plaintiff was ‘stable' does not mean that he was not still experiencing great pain. As one court has observed, ‘doing well for the purposes of a treatment program has no necessary relation to a claimant's ability to work or to her work-related functional capacity.' Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001).”). “[S]tability does not mean that plaintiff was symptom free.” Ekola v. Colvin, 2014 WL 4425783, at *6 (D. Ariz. Sept. 9, 2014), quoted in Williams v. Commissioner of Soc. Sec. Admin., 2021 WL 4478402, at *2 (D. Ariz. 2021). As the Oregon District Court has noted: “It is well settled that references to stability or signs of improvement must be read in context of the overall diagnostic picture drawn by the provider.” Knight v. Colvin, 2017 WL 89573, at *9 (D. Or. Jan. 10, 2017), citing Flowers v. Colvin, 2016 WL 807693, at *10 (D. Or. Feb. 11, 2016) (discussing use of the term “stable,” and noting that stability does not necessarily equate to an ability to work and could mean only that the condition has not changed). See also Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (finding that reports of “improvement” must be “interpreted with an awareness that improved functioning ... does not always mean that a claimant can function effectively in a workplace.” (citation omitted)).
Treatment notes from August 26, 2015, indicate an increase in headaches because McCabe had been switched from OxyContin to Opana, and insurance would only cover Imitrex for four uses per month and McCabe was “requiring more” because she was having 15 migraines per month. (ECF No. 14-9 at 78). McCabe reported she had failed “with multiple medications in the past as well as Botox,” and that she would “often require ER visit for migraine cocktail” of Ketoroiac (used for management of moderately severe acute pain that requires analgesia at the opioid level and only as continuation treatment following IV or IM dosing of Ketorolac tromethamine), Premethazine (a phenothiazine which works by changing the actions of chemicals in the brain) and Benedryl. (ECF No. 14-9 at 78). This note indicates that the headaches were “currently stable with OxyContin,” and that McCabe used Imitrex “when needed.” (ECF No. 14-9 at 78).
On August 26, 2015, McCabe reported her pain level as “8/10,” and that she was not “doing good today.” (ECF No. 15-13 at 78). She reported she “had a HA since Friday [five days prior]. My insurance will not cover my oxycontin and they switched me to Opana and ever since then I haven't been able to sleep, the pain is worse, and I have had a headache since then.” (ECF No. 15-13 at 78).
On September 5, 2015, McCabe reported “HA daily, constant pain 3-4/10. Episodes of acute pain 3 days/week. Off methotrexate, Increase in HAs.” (ECF No. 14-9 at 139).
A note from September 29, 2015, reports “idiopathic” migraines, and McCabe was continued on Imitrex and a “cocktail” of medications, including a fentanyl patch. (ECF No. 14-9 at 74).
A treatment note from the Center for Pain Management dated December 22, 2015, states that, with regard to McCabe's migraines: “photophobia, phonophobia, nausea and vomiting. The symptoms occur constantly. The episodes occur [2 to 3 times a week] and last for days. The patient describes this as moderate in severity (to severe) and unchanged. ...” (ECF No. 15-13 at 61).
A note from January 20, 2016, indicates “some improvement” in McCabe's migraines from the use of Oxycontin. (ECF No. 14-9 at 57). McCabe reported she had “tried all options to help manage her migraines through both what her neurologist has offered her and through the [headache] clinic in [Michigan].” (Id.). McCabe also reported “some benefit” regarding her migraines from prior weekly lidocaine infusions, which were being used to treat her fibromyalgia. (ECF No. 14-9 at 57, 63, 78).
A treatment note dated February 17, 2016, notes “some benefit to her migraines with Oxycontin,” but also noted McCabe's insurance required a trial with other treatments so “now she is on Fentanyl patch.” (ECF No. 14-9 at 54). McCabe reported the headaches occurred “daily and last for days,” with “moderate severity,” averaging 45/10 and “will increase to 9-10 for approximately 5 days a week.” (ECF No. 14-9 at 54). McCabe could do “activities of daily living with limitations,” and McCabe had been seen in the emergency room. (ECF No. 14-9 at 54). The notes indicate McCabe would be starting lidocaine infusions, and that Effexor, Trazadone, Lyrica, gabapentin and Topamax had been tried but provided no relief and had adverse side effects. (Id.).
Intake notes from Josephson Wallack Munshower Neurology PC (“JWMN”) dated September 19, 2016, state:
[McCabe was] experiencing headaches] 30 days per month and have been this frequent for the past 3 years. Differences in the current headaches include: current medications are not working. On a scale of 1 to 10 (10 being the most severe) the average pain level is 10. If left untreated the average headache lasts 4 weeks. If treated, the average headache lasts 4 hours. Based on the predominant headache type the patient experiences total loss of function (bed ridden) Associated features that occur before and during the headaches include nausea, vomiting sensitivity to light, sensitivity to noise . . . Prior failed headache medications include: Topamax, Inderal, Elavil, among many more in the past.
Has tried nearly all meds including a trial of Botox. Tells me lives at no less than a level 4 pain and been years since can say truly 48 hours headache free.(ECF No. 15-15 at 99).
A progress note from JWMN dated October 19, 2016, states: “Has history of migraine. For the past couple of days has a migraine that is a 10/10 and Imitrex is not helping. Has headaches daily and chronic migraine. Today her migraine has gotten worse.” (ECF No. 14-9 at 431).
No nausea, but pt is concerned that if she lets this HA continue she will become very sic[k]. She states that she is used to HAs of this kind and
no new [symptoms]. Sees neurology. Has only been on oxycodone daily to prevent HAs with little relief. No vision changes, no weakness/numbness.
Received Vempat infusion 2 weeks ago with little relief. No aura.(Id.). On that day McCabe was seen “laying in dark exam room.” (ECF No. 14-9 at 432). The diagnosis was: “Intractable migraine with status migrainosus.” (Id.). McCabe was given an injection of Toradol and Phenergan, after which her headache was “improving.” (Id.).
A treatment note dated October 27, 2016 noted that an infusion of Vimpat (an anti-convulsant) via IV had provided only a “[s]liver of success.” (ECF No. 14-9 at 430). The note from that date also states: “Here to follow up IV treatment. States the 5 days noted change at start of day 4 [] then had 24 hours of near headache freedom. Then thought right back . . ..” (Id.).
A treatment note from Cornerstone Family Physicians dated November 2, 2016, states that McCabe's “migraines [were] much worse. Constant daily headache. She is being evaluated for neurostimulator.” (ECF No. 15-14 at 150).
The neurostimulator was implanted in December of 2016.
A treatment note dated March 1, 2017, states McCabe's headaches had “improved” since the stimulator was implanted, also stating McCabe still experienced “34 [migraine headaches] per week but not intractable.” (ECF No. 15-14 at 144).
McCabe was seen at JWMN on April 15, 2017, with a headache that was “not resolving with Imitrex. She has been here for this before. She had help with toradol and phenergan. She would like that again.” (ECF No. 15-15 at 79).
When seen on June 22, 2017, McCabe reported “a new nutrition plan [had] reduced her migraines significantly and she is hopeful she can eventually return to work if she can sustain this improvement.” (ECF No. 15-14 at 182). However, the significant improvement in the frequency and intensity of the migraines was not long-lived. Notes from JWMN dated September 18, 2017, state:
Since she was seen almost 1 year ago, Tammi had a stimulator trial with the Migraine Treatment Center of America. She had it implanted, it
helped for a time, and sometimes it helps with the daily [headaches]. 45 migraines and headaches since August ... Pain is throbbing, dull, she wants to beat her head against the wall pain. Sumatriptan injection helps, but Imitrex does not work as well and makes her sick when she takes it. . Using Sumatriptan injection 1-2 days/week.(ECF No. 14-9 at 399) (emphasis added).
Treatment note from JWMN dated November 13, 2017, state:
She is on her third day of a migraine and continues to have daily headaches without relief. She is using the migraine stimulator, which helps some. Imitrex pills make her sick and she can only use Imitrex injection. She has not noticed any change with Singulair. Migraine is located in the right frontal lobe today.
Tizanidine did not help her sleep at 4mg. she continues to struggle with her sleep, which is broken up during the night.(ECF No. 15-15 at 56).
Although McCabe initially experienced some good results from the neurostimulator implant in December of 2016, the record also contains the following report from a consultative examination at Goodman Campbell Brain and Spine, where McCabe was seen on October 23, 2018:
. she states she has had migraines since 2007. She went to the Migraine Treatment Center of America and in 2016 she got an implant in Franklin, Tennessee. Her trial was 85% successful. She got one to two months of relief from the permanent occipital trigeminal system. She still leaves her stimulator on for 24 hours with the hope that it helps. Dr. Arbuck and his team, Dr. Paquette already did a trial, leaving the stimulator on for two months but there was no change in pain. She is getting some Botox from Dr. Paquette that seems to be helping. He is having a hard time missing the leads and has to use fluro. . I spent a lot of time. She is not using any nicotine and the weight loss stuff is not really her main issue, but I explained the procedure that she had probably had a less than 50% chance of helping at two years. In [hindsight], she wishes she did not have the procedure done. . She wants to wait on the explant and that is fine. She cannot get any procedures where she needs electrocautery, even orthopedic procedures, etc., with this peripheral nerve stimulator in. . She is going to go home and think about it. . As stated above, she basically wished she had seen me or Dr. Arbuck's office before getting the procedure so she would have been talked out of it.(ECF No. 15-27 at 155) (emphasis added).
On November 7, 2018, after beginning to receive intravenous propofol infusions, McCabe reported improvement in her migraine frequency and intensity. During an occupational therapy session on November 7, 2018, McCabe reported her pain level as a 2/10, and the therapist recorded: “Client has only had to take Imitrix [sic] 2x this past month ... IV propofol has been very helpful.” (ECF No. 15-26 at 156). A November 13, 2018, progress note states McCabe reported “[h]uge improvement” in her migraines, stating she had not experienced a migraine in the prior three weeks “after years of daily” headaches. (ECF No. 15-26 at 148). On November 14, 2018, she reported her headaches and “overall mood” were better. (ECF No. 15-26 at 147). That day she rated her pain as 2/10, with an average since her last appointment as 4/10. (Id.).
However, after the three-week respite reported in November of 2018, McCabe continued to have at least weekly migraine headaches in December of 2018. On December 4, 2018, during an appointment for a propofol infusion she reported experiencing “more migraines in past 3 weeks.” (ECF No. 15-26 at 140). On December 5, 2018, she reported her pain level as 3/10, and reported she “had to take imitrex 3x in past 2 weeks” to control migraine breakthrough pain. (ECF No. 15-26 at 136). On December 10, 2018, she stated she “[d]id have migraine since last [occupational therapy] visit.” (ECF No. 15-26 at 129). A medical progress note indicated that she was still needing migraine pain breakthrough medications once per week, experiencing an average pain as 3/10, and still experiencing nausea. (ECF No. 15-26 at 132).
On December 26, 2018, McCabe reported the propofol infusions were “working” for about two and a half weeks. (ECF No. 15-26 at 122). On January 9, 2019, her physician noted “good benefit” from these treatments. (ECF No. 15-26 at 115). At that time McCabe rated her overall pain as 3/10. (Id.). On January 16, 2019, after getting a Botox treatment for migraines she rated her migraine pain as a 3/10, the average since her last appointment as a 4/10, the worst pain as 8/10 and the best as 3/10 (ECF No. 15 at 111). On January 30, 2019, McCabe rated her pain at 5/10, with the average since her last appointment as 3/10, the worst as 8/10 and the best as 3/10, and stated she was using migraine pain breakthrough medication once or twice per week. (ECF No. 15-26 at 105).
On February 6, 2019, McCabe reported “'Propofol works for me.'” (ECF No. 1526 at 96). On February 28, 2019, when seen for a propofol infusion McCabe reported she felt “pretty good.” (ECF No. 15-26 at 85), Shortly before her date last insured, on March 13, 2019, McCabe reported to Indiana Polyclinic that her current pain level was 6/10, her average pain level since her last appointment was 3/10, her worst pain since that appointment was 8/10 and the best 3/10, that she took migraine pain breakthrough medications once or twice per week. (ECF No. 15-26 at 76).
The only specific reason the ALJ provided for failing to credit McCabe's symptom testimony was incongruence between the medical record and her testimony. This conclusion is not supported by substantial record evidence. Accordingly, in finding that McCabe's headaches were not as frequent nor as severe as she testified, in light of the record evidence to the contrary, the ALJ mischaracterized the evidence. To mischaracterize evidence is to “fail to discuss significant, probative record evidence that [is] clearly contrary to [the] finding.” McLean v. Colvin, 648 Fed.Appx. 621, 622 (9th Cir. 2016). An ALJ is not permitted to rely on evidence supporting their conclusions while ignoring evidence contrary to those conclusions, and to do so constitutes legal error. See Garrison, 759 F.3d at 1017 n.23; Reddick, 157 F.3d at 723 (observing that the “ALJ developed his evidentiary basis by not fully accounting for the context of materials or all parts of the testimony and reports. His paraphrasing of record material is not entirely accurate regarding the content or tone of the record.”); Maydanis v. Colvin, 119 F.Supp.3d 969, 976 (D. Ariz. 2015); Jones v. Berryhill, 2017 WL 4124046, at *1 (D. Ariz. Sept. 18, 2017) (“An ALJ is not permitted to rely on evidence supporting her conclusions while ignoring evidence contrary to those conclusions”); Provencio v. Astrue, 2012 WL 2344072, at *15 (D. Ariz., June 20, 2012) (finding “[i]t was improper for the ALJ to selectively reference plaintiff's treatment records to support her conclusion, while ignoring other treatment records contradicting that conclusion”).
Although the ALJ's decision must be affirmed when the evidence is susceptible to more than one rational interpretation, see Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 599 (9th Cir. 1999), in this matter the record is not susceptible to a rational interpretation that, through her date last insured, McCabe did not suffer from intractable migraine headaches, that occurred at least once a week and as often as three days per week, which were not substantially alleviated for an appreciable amount of time with the numerous medications she was prescribed. See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (ALJ may not justify a credibility finding “by ignoring competent evidence in the record that suggests an opposite result”). The record evidence indicates that some medications and the neurostimulator implant were somewhat effective for period of time, but this does not establish that the pain was reduced to a point where McCabe could sustain full-time work. The ALJ erred in cherrypicking the record to support a conclusion that the severity and frequency of McCabe's migraine headaches were not as alleged. Because the primary issue in this matter is whether McCabe's migraine headaches would result in her being absent from work more than once per month, and likely result in her being off-task more than 15% of the time or require her to take unscheduled breaks which would, per the vocational expert, be “work preclusive,” and the substantial evidence in the record supports McCabe's symptom testimony regarding the frequency and intensity of her migraine headaches and their disabling nature, the ALJ's error in failing to credit McCabe's symptom testimony constitutes harmful error.
The ALJ must offer “clear and convincing reasons” for discounting the symptom testimony. Carmickle v. Commissioner, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). “This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases.” Garrison, 759 F.3d at 1015 (internal quotations omitted). The ALJ failed to meet the stringent test that requires specific, clear, and convincing reasons, supported by substantial record evidence, for rejecting a claimant's symptom testimony. This was not harmless error, because limitations congruent with McCabe's reported symptoms would interfere with the ability to perform any sustained work, i.e., five days a week, eight hours a day, without excessive unscheduled breaks, per the vocational experts' hearing testimony. (ECF No. 15-16 at 72 (McCabe's testimony that she had “three to four” “[m]igraine days” per week); id. (McCabe's testimony that when she had a migraine she could not focus or concentration, that she would need to lay on her couch or “in bed with ice packs”); ECF No. 15-16 at 85-86 (VE's testimony that being off-task more than five percent of the day, being absent more than one day a month, and requiring unscheduled breaks would be work-preclusive); (ECF No. 15-16 at 60) (VE's testimony that being off-task more than fifteen percent of the workday, needing unscheduled breaks of up to an hour, and being absent more than one day per month would be work preclusive).
VI. Conclusion
The ALJ erred as a matter of law by failing to provide clear and convincing reasons, supported by substantial record evidence, for discrediting McCabe's testimony regarding the frequency and severity of her migraine headaches and the symptoms of those headaches. McCabe testified that during severe migraines, which occurred two or more times per month throughout the relevant time period, she spent the day lying down without any stimuli, often in a darkened room, and that such migraines lasted for one to three days. The VE testified that a person with McCabe's characteristics who misses work more than once per month would not be able to maintain employment. The testimony of the VE therefore suggests that, had the ALJ incorporated McCabe's uncredited migraine limitation into the residual functional capacity or the hypothetical to the VE, the ALJ would likely have been obliged to find Plaintiff disabled.
VII. Appropriate Remedy
If an ALJ's decision contains harmful error, the decision whether to remand a case for additional evidence or for an award of benefits is within the discretion of the Court. E.g., Reddick, 157 F.3d at 728.
The Ninth Circuit Court of Appeals has
... devised a three-part credit-as-true standard, each part of which must be satisfied in order for a court to remand to an ALJ with instructions to calculate and award benefits: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.Garrison, 759 F.3d at 1020. See also Treichler v. Comm 'r of Soc. Sec. Admin., 775 F.3d 1090 (9th Cir. 2014). “If additional proceedings can remedy defects in the original administrative proceedings, a social security case should be remanded. Where, however, a rehearing would simply delay receipt of benefits, reversal [and an award of benefits] is appropriate.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981).
Treichler relied primarily on Garrison, but arguably specified an order for considering the elements of the rule listed in Garrison: (1) “we first ask whether the ‘ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion;” (2) “Second, if the ALJ has erred, we determine whether ‘the record has been fully developed'. . . and whether further administrative proceedings would be useful;” and (3) “Third, if we conclude that no outstanding issues remain and further proceedings would not be useful, we may . . . [find] the relevant testimony credible as a matter of law, and then determine whether the record, taken as a whole, leaves ‘not the slightest uncertainty as to the outcome of [the] proceeding.” Treichler, 775 F.3d at 1100-01(citations omitted).
The ALJ in this matter failed to provide legally sufficient reasons, supported by substantial evidence, for rejecting McCabe's testimony regarding the severity and frequency of her migraine headaches. Noting that this matter has previously been remanded by a different federal district court, that all of McCabe's medical records through the date last insured are in the record, and that McCabe's testimony during three hearings is also in the record, the undersigned concludes the record in this matter has been fully developed, and there are no outstanding issues to be resolved in a further proceeding. Finding the relevant testimony credible as a matter of law, the entire record leaves no uncertainty as to the outcome of any further proceeding. In this case, “[a]llowing the Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let's play again' system of disability benefits adjudication.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted).
Accordingly, IT IS RECOMMENDED that the decision of the Commissioner denying claims for disability-based benefits be vacated, and judgment entered in favor of Plaintiff and against the Commissioner.
IT IS FURTHER RECOMMENDED that the Court exercise its discretion to remand this matter for a calculation and award of benefits.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).