UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Michelle Aimee Libin
v. Civil No. 17-cv-320-JL Opinion No. 2018 DNH 129 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
ORDER ON APPEAL
Tammy Libin appeals the Social Security Administration’s
(“SSA”) denial of her application for disability benefits. An
Administrative Law Judge (“ALJ”) found that Libin suffered from
the following severe impairments: degenerative cervical disc
disease, obesity, and seizure disorder. The ALJ ultimately
found that Libin was not disabled because she has sufficient
residual functional capacity (“RFC”) to work at jobs that exist
in significant numbers in the national economy. See 42 U.S.C.
§ 423(d)(2)(A).
The SSA Appeals Council subsequently denied Libin’s request
for review of the ALJ’s decision, rendering the ALJ’s decision
final. Libin timely appealed to this court, pursuant to 42
U.S.C. § 405(g). In due course, Libin moved to reverse the
SSA’s decision and the SSA’s Acting Commissioner moved to affirm
the denial of benefits.
Libin argues on appeal that the ALJ erred by failing to
consider the limitations her migraine headaches created. As a result, she argues, the ALJ improperly determined her RFC and
erred in finding that Libin was not disabled.
After consideration of the parties’ arguments and the
administrative record, the court finds that the ALJ failed to
give any consideration to the evidence of Libin’s headaches,
including her own testimony and the report of an Agency
reviewing doctor who found that Libin’s migraines were a severe
impairment, and whose opinion the ALJ gave great weight. These
failures amount to reversible error. Libin’s motion is
therefore granted. The Assistant Commissioner’s motion is
denied and the matter is remanded for further consideration.
I. Standard of Review
The court’s review of SSA’s final decision “is limited to
determining whether the ALJ used the proper legal standards and
found facts upon the proper quantum of evidence.” Ward v.
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The
ALJ’s decision will be upheld if it is supported by substantial
evidence, that is, “such evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotations omitted). This is
less evidence than a preponderance but “more than a mere
scintilla.” Id.; Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
2 (1966). The possibility of drawing two inconsistent conclusions
from the evidence does not preclude a finding of substantial
evidence. Consolo, 383 U.S. at 620. Accordingly, the ALJ’s
resolution of evidentiary conflicts must be upheld if supported
by substantial evidence, even if contrary results are
supportable. Rodriguez Pagan v. Sec’y of Health & Human Servs.,
819 F.2d 1, 2 (1st Cir. 1987). The court next turns to the
ALJ’s decision.
II. Background1
In analyzing Libin’s benefit application, the ALJ invoked
the required five-step process. See 20 C.F.R. § 416.920.
First, she concluded that Libin had not engaged in substantial
work activity after the alleged onset of her disability on March
20, 2011.2 Next, the ALJ determined that Libin suffered from
several severe impairments: seizure disorder, degenerative
cervical disc disease and obesity.3 See 20 C.F.R. § 404.1520(c).
1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts is incorporated by reference. See L.R. 9.1(d). 2 Admin. Rec. at 17. 3 Id. at 17-18.
3 At the third step, the ALJ concluded that Libin’s impairments --
either individually or collectively -- did not meet or
“medically equal” one of the listed impairments in the Social
Security regulations.4 See 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526. The ALJ next found that Libin had the RFC to perform
light work with some modifications: sitting up to eight hours
of an eight-hour day; standing and walking up to one hour,
occasional reaching, pushing pulling using ladders, stooping,
kneeling, crouching, crawling and balancing, and exposure to
unprotected heights, extreme temperatures and vibrations.5 See
20 C.F.R. §§ 404.1567(a) and 416.967(a). At step four of the
process, the ALJ concluded that Libin could not perform her past
relevant work.6 See 20 C.F.R. § 404.1565.
The ALJ proceeded to step five, at which the SSA bears the
burden of showing that a claimant can perform other work that
exists in the national economy. Freeman v. Barnhart, 274 F.3d
606, 608 (1st Cir. 2001). Here, the ALJ, considering Libin’s
age, education, work experience and RFC, and relying on a
4 Id. at 18-20. 5 Admin. Rec. at 20-22. 6 Admin. Rec. at 23; Libin’s multiple past occupations ranged from sedentary to heavy exertional capacity.
4 vocational expert’s testimony, concluded that Libin could
perform jobs existing in the regional and national economy, such
as recreation attendant and gate guard.7 Accordingly, the ALJ
found Libin not disabled within the meaning of the Social
Security Act.
III. Analysis
“In making any determination with respect to whether an
individual is under a disability . . . the Commissioner . . .
shall consider all evidence available is such individual’s case
record.” 42 U.S.C. § 423(d)(5)(B); see Alcantara v. Astrue, 257
F. App’x. 333, 335 (“the ALJ [is] required to weigh all of the
evidence”) (citing 20 C.F.R. §§ 416.920(a)(3), 416.920a (a) &
(c); 416.927(c)). In this case, the ALJ failed to consider all
the evidence.
The record is replete with references to plaintiff’s
headaches. Indeed, in her initial application for benefits,
Libin twice noted that migraines were preventing her from
working.8 In addition, in denying her claim for benefits, the
Agency’s examiner listed Libin’s migraines as a “severe”
7 Admin. Rec. at 24-25. 8 Admin. Rec. at 314, 325.
5 impairment.9 See 20 C.F.R. § 404.1520(c) (defining a “severe
impairment” as an “impairment or combination of impairments”
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UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Michelle Aimee Libin
v. Civil No. 17-cv-320-JL Opinion No. 2018 DNH 129 Nancy A. Berryhill, Acting Commissioner, Social Security Administration
ORDER ON APPEAL
Tammy Libin appeals the Social Security Administration’s
(“SSA”) denial of her application for disability benefits. An
Administrative Law Judge (“ALJ”) found that Libin suffered from
the following severe impairments: degenerative cervical disc
disease, obesity, and seizure disorder. The ALJ ultimately
found that Libin was not disabled because she has sufficient
residual functional capacity (“RFC”) to work at jobs that exist
in significant numbers in the national economy. See 42 U.S.C.
§ 423(d)(2)(A).
The SSA Appeals Council subsequently denied Libin’s request
for review of the ALJ’s decision, rendering the ALJ’s decision
final. Libin timely appealed to this court, pursuant to 42
U.S.C. § 405(g). In due course, Libin moved to reverse the
SSA’s decision and the SSA’s Acting Commissioner moved to affirm
the denial of benefits.
Libin argues on appeal that the ALJ erred by failing to
consider the limitations her migraine headaches created. As a result, she argues, the ALJ improperly determined her RFC and
erred in finding that Libin was not disabled.
After consideration of the parties’ arguments and the
administrative record, the court finds that the ALJ failed to
give any consideration to the evidence of Libin’s headaches,
including her own testimony and the report of an Agency
reviewing doctor who found that Libin’s migraines were a severe
impairment, and whose opinion the ALJ gave great weight. These
failures amount to reversible error. Libin’s motion is
therefore granted. The Assistant Commissioner’s motion is
denied and the matter is remanded for further consideration.
I. Standard of Review
The court’s review of SSA’s final decision “is limited to
determining whether the ALJ used the proper legal standards and
found facts upon the proper quantum of evidence.” Ward v.
Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The
ALJ’s decision will be upheld if it is supported by substantial
evidence, that is, “such evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotations omitted). This is
less evidence than a preponderance but “more than a mere
scintilla.” Id.; Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
2 (1966). The possibility of drawing two inconsistent conclusions
from the evidence does not preclude a finding of substantial
evidence. Consolo, 383 U.S. at 620. Accordingly, the ALJ’s
resolution of evidentiary conflicts must be upheld if supported
by substantial evidence, even if contrary results are
supportable. Rodriguez Pagan v. Sec’y of Health & Human Servs.,
819 F.2d 1, 2 (1st Cir. 1987). The court next turns to the
ALJ’s decision.
II. Background1
In analyzing Libin’s benefit application, the ALJ invoked
the required five-step process. See 20 C.F.R. § 416.920.
First, she concluded that Libin had not engaged in substantial
work activity after the alleged onset of her disability on March
20, 2011.2 Next, the ALJ determined that Libin suffered from
several severe impairments: seizure disorder, degenerative
cervical disc disease and obesity.3 See 20 C.F.R. § 404.1520(c).
1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their Joint Statement of Material Facts is incorporated by reference. See L.R. 9.1(d). 2 Admin. Rec. at 17. 3 Id. at 17-18.
3 At the third step, the ALJ concluded that Libin’s impairments --
either individually or collectively -- did not meet or
“medically equal” one of the listed impairments in the Social
Security regulations.4 See 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526. The ALJ next found that Libin had the RFC to perform
light work with some modifications: sitting up to eight hours
of an eight-hour day; standing and walking up to one hour,
occasional reaching, pushing pulling using ladders, stooping,
kneeling, crouching, crawling and balancing, and exposure to
unprotected heights, extreme temperatures and vibrations.5 See
20 C.F.R. §§ 404.1567(a) and 416.967(a). At step four of the
process, the ALJ concluded that Libin could not perform her past
relevant work.6 See 20 C.F.R. § 404.1565.
The ALJ proceeded to step five, at which the SSA bears the
burden of showing that a claimant can perform other work that
exists in the national economy. Freeman v. Barnhart, 274 F.3d
606, 608 (1st Cir. 2001). Here, the ALJ, considering Libin’s
age, education, work experience and RFC, and relying on a
4 Id. at 18-20. 5 Admin. Rec. at 20-22. 6 Admin. Rec. at 23; Libin’s multiple past occupations ranged from sedentary to heavy exertional capacity.
4 vocational expert’s testimony, concluded that Libin could
perform jobs existing in the regional and national economy, such
as recreation attendant and gate guard.7 Accordingly, the ALJ
found Libin not disabled within the meaning of the Social
Security Act.
III. Analysis
“In making any determination with respect to whether an
individual is under a disability . . . the Commissioner . . .
shall consider all evidence available is such individual’s case
record.” 42 U.S.C. § 423(d)(5)(B); see Alcantara v. Astrue, 257
F. App’x. 333, 335 (“the ALJ [is] required to weigh all of the
evidence”) (citing 20 C.F.R. §§ 416.920(a)(3), 416.920a (a) &
(c); 416.927(c)). In this case, the ALJ failed to consider all
the evidence.
The record is replete with references to plaintiff’s
headaches. Indeed, in her initial application for benefits,
Libin twice noted that migraines were preventing her from
working.8 In addition, in denying her claim for benefits, the
Agency’s examiner listed Libin’s migraines as a “severe”
7 Admin. Rec. at 24-25. 8 Admin. Rec. at 314, 325.
5 impairment.9 See 20 C.F.R. § 404.1520(c) (defining a “severe
impairment” as an “impairment or combination of impairments”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”). Also, the ALJ
specifically questioned Libin about her headaches.10 Libin
testified, inter alia, that she gets headaches “every couple of
days,” that she is usually not able to control them, that they
last for eight hours, render her unable to function, and that
they have gotten stronger in recent years.11 The record reflects
that Libin’s headaches began after a 1982 motor vehicle
accident.12 The headaches worsened over time, and she received
treatment for them every year between 2011 and 2015.13
Libin asserts that the ALJ failed to consider evidence of
her headaches at any point in the five-step process. The court
agrees. The word “headache” does not appear in the ALJ's 11-
page decision. Nor does “migraine.”14 The Assistant
9 Id. at 152. 10 Admin. Rec. at 102, 107-109. 11 Id. at 108-09. 12 Id. at 488. 13 Id. at 438, 440, 452, 470-71, 473-74, 479-80, 486-92, 555-58. 14 Id. at 15-25.
6 Commissioner agrees that the ALJ didn’t expressly mention
Libin’s headaches, but argues that the ALJ addressed Libin’s
headache claims as a symptom of her degenerative disc disease
rather than a stand-alone condition.15
There are at least two problems with the Assistant
Commissioner’s position. First, the ALJ’s decision does not
indicate such an approach. The court “cannot affirm an agency
decision, including a decision of the Acting Commissioner of
Social Security, based on post hoc rationalizations that were
not part of the decision.” Castro v. Acting Comm’r, Soc. Sec.
Admin, 2018 DNH 065, 7-8; see also SEC v. Chenery Corp., 332
U.S. 194 (1947). Next, even if, as the Acting Commissioner
argues, Libin’s headaches are “only” a symptom of her neck
injury, the court agrees with the Assistant Commissioner’s
comment that “[w]hat matters is whether the ALJ considered
plaintiff’s symptoms and their limiting effects.”16 But the
court disagrees with the Assistant Commissioner’s assertion that
the ALJ did, in fact, consider Libin’s symptoms. In support of
her position, the Assistant Commissioner cites Wertheim v.
Colvin, No. 14-029, 2015 WL 74148, at *10 (D.R.I. Jan. 6, 2015).
15 Mot. to Affirm (doc. no. 9-1) at 3. 16 Mot. to Affirm (doc. no. 9-1) at 4.
7 In Wertheim, the Court rejected a claimant’s argument premised
on the ALJ’s failure to mention a particular medical condition.
Id. The Court found the failure “irrelevant because the
assessment’s focus is on the totality of Plaintiff’s impairments
and how they functionally affect her ability to work.” Id.
Here, as noted, the ALJ made no mention of the claimant’s
headaches, whether as a symptom or a separate impairment.
Wertheim is therefore inapposite.
The ALJ’s failure to consider claimant’s headaches could
have impacted the ALJ’s findings at several steps of her
analysis: whether Libin had a severe impairment or a
combination of impairments equivalent to a listed impairment
(steps 2 and 3); the accuracy of the ALJ’s RFC finding and, in
determining whether there were available jobs claimant could
perform (step 5), the hypotheticals posed to the vocational
expert based on that RFC and the limitations the ALJ assessed.
Accordingly, in the absence of any consideration of claimant's
documented headaches, the court finds that the ALJ’s decision is
not “supported by substantial evidence.” Richardson, 402 U.S.
at 401.
8 IV. Conclusion
For the reasons discussed herein, the claimant’s motion for
an order reversing the decision of the Acting Commissioner17 is
GRANTED. The Acting Commissioner’s motion for an order to
affirm18 is DENIED. The case is remanded to the SSA for further
consideration. The clerk shall enter judgment accordingly and
close the case.
SO ORDERED.
____________________________ Joseph N. Laplante United States District Judge
Dated: June 22, 2018
cc: Karl E. Osterhour, Esq. Daniel W. McKenna, Esq. T. David Plourde, AUSA
17 Doc. no. 8. 18 Doc. no. 9.