C/A No. 0:16-1009-JMC-PJG.

Heather A. Orff, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

United States District Court, D. South Carolina.

Editors Note
Applicable Law: 42 U.S.C. § 405
Cause: 42 U.S.C. § 405 Review of HHS Decision (DIWC)
Nature of Suit: 863 Social Security: DIWC / DIWW
Source: PACER

Attorney(s) appearing for the Case

Heather A Orff, Plaintiff, represented by W. Daniel Mayes , Smith Massey Brodie Thumond Guynn and Mayes.

Commissioner of Social Security Administration, Defendant, represented by Barbara Murcier Bowens , US Attorneys Office.


PAIGE J. GOSSETT, Magistrate Judge.

This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Heather A. Orff, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be reversed and the case remanded.


Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:

(1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a "severe" impairment; (3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled; (4) whether the claimant can perform her past relevant work; and (5) whether the claimant's impairments prevent her from doing any other kind of work.

20 C.F.R. § 404.1520(a)(4).2 If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.

Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).


In January 2012, Orff applied for DIB, alleging disability beginning December 15, 2011. Orff's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on January 10, 2013, at which Orff appeared and testified, and was represented by Eleanor Swierk, a non-attorney representative. After hearing testimony from a vocational expert, the ALJ issued a decision on January 25, 2013 finding that Orff was not disabled. (Tr. 213-22.) The Appeals Council granted Orff's request for review and issued an order on March 20, 2014 vacating the hearing decision and remanding the case for further proceedings. (Tr. 230-31.) Specifically, the Appeals Council found that the ALJ's decision did not include adequate consideration of the severity and effects of Orff's obesity, both singularly and in combination with other impairments, and that the ALJ's decision did not reflect consideration of the lay statements from Orff's mother. (Id.) The Appeals Council instructed the ALJ as follows:

• Obtain additional evidence concerning the claimant's impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 404.1512-1513). The additional evidence may include, if warranted and available, a consultative examination and medical source statements about what the claimant can still do despite the impairment. • Further evaluate the claimant's medically determinable impairments including obesity to determine to what extent they limit the claimant's ability to perform basic work activities (Social Security Ruling 02-1p). • Evaluate the lay statement submitted by Wendy Orff pursuant to 20 CFR 404.1513(d) and Social Security Ruling 06-03p. • Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 404.1545 and Social Security Ruling 85-16 and 96-8p). • If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant'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 identity examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).


A second hearing was held on August 21, 2014, at which Orff appeared and testified and continued to be represented by Eleanor Swierk, a non-attorney representative. The ALJ also heard testimony from a vocational expert. The ALJ issued a decision on October 31, 2014 finding that Orff was not disabled. (Tr. 77-87.)

Orff was born in 1977 and was thirty-four years old on her alleged disability onset date. (Tr. 85.) She has a high school education and past relevant work experience as a branch service representative at a bank, a copy consultant at a copy store, and a float flex banker at a bank. (Tr. 474.) Orff alleged disability due to "bipolar depression," anxiety, panic attacks, chronic migraines, borderline personality, asthma, spine issues, degenerative disc disease, high blood pressure, diverticulosis, and reflux. (Tr. 473.)

In applying the five-step sequential process, the ALJ found that Orff had not engaged in substantial gainful activity since December 15, 2011, her alleged onset date. The ALJ also determined that Orff's asthma; degenerative disc disease; obesity; depressive disorder, not otherwise specified; anxiety disorder, not otherwise specified; borderline personality disorder; migraine headaches; and opioid dependence in recent remission were severe impairments. However, the ALJ found that Orff 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 (the "Listings"). The ALJ further found that Orff retained the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b) except she is limited to occasional postural movements and overhead reaching. She is precluded from climbing scaffolds and ladders. She must avoid concentrated exposure to fumes, odors, and hazards. She is limited to performing simple routine repetitive tasks with no ongoing interaction with the public in an uncrowded work setting with no rigid quotas or fast paced production.

(Tr. 81.) The ALJ found that Orff was unable to perform any past relevant work, but that, considering Orff's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Orff could perform. Therefore, the ALJ found that Orff was not disabled from the alleged onset date of December 15, 2011 through the date of the decision.

Orff submitted additional evidence to the Appeals Council, which denied her request for review on February 11, 2016, making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.


Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.


Orff raises the following issues for this judicial review:

I. The ALJ did not explain his findings regarding the Plaintiff's residual functional capacity, as required by Social Security Ruling 96-8p[;][] II. The ALJ failed to properly assess opinion evidence[;] III. The ALJ failed to properly evaluate the credibility of the Plaintiff[.]

(Pl.'s Br., ECF No. 18.)


The crux of the majority of Orff's arguments is that the ALJ failed to properly consider and address the evidence related to Orff's migraines. Orff argues that in failing to properly evaluate this evidence, the ALJ failed to properly explain his residual functional capacity findings as required by SSR 96-8p and failed to properly weigh Orff's subjective complaints. In arguing the ALJ erred in evaluating the opinion evidence from Dr. Kellie Bishop, Orff's also relies in part on the alleged failure of the ALJ to properly evaluation of Orff's migraines. Upon review of the parties' briefs, the record in this matter, and the applicable law, the court finds that this matter should be remanded for further consideration of the evidence relating to Orff's migraines.

A claimant's residual functional capacity is "the most [a claimant] can still do despite [her] limitations" and is determined by assessing all of the relevant evidence in the case record. 20 C.F.R. § 404.1545(a)(1). In assessing residual functional capacity, an ALJ should scrutinize "all of the relevant medical and other evidence." 20 C.F.R. § 404.1545(a)(3). Social Security Ruling 96-8p further requires an ALJ to reference the evidence supporting his conclusions with respect to a claimant's residual functional capacity. Further, "remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)) (alterations in original); see also Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016).

The ALJ's evaluation of Orff's migraines included finding them to be a severe impairment but not severe enough to meet the requirements of a Listing. Further, in evaluating Orff's hearing testimony and in formulating Orff's residual functional capacity, the ALJ found as follows:

Treatment notes do no[t] indicate the level of dysfunction the claimant is alleging. The claimant experiences migraine headaches, degenerative disc disease, and asthma, but not to the extent of being disabled. The claimant has been treated in the emergency room for migraine headaches on numerous occasions and has been given prescription pain medication, but has not been hospitalized. Treatment notes indicate a normal neurological examination, including cranial nerves, orientation, mentation, motor and sensory examination, and cerebellar testing. Her GCS was normal and she had a steady gait at a normal pace. A CT scan of the brain dated January 2012 showed no acute intracranial abnormality (Exhibit 7F. 38).

(Tr. 82.) The ALJ further acknowledged that

[m]edical records submitted in connection with the Appeals Council Remand indicate that the claimant has continued to receive treatment for migraine headaches. In March 2014 she was evaluated by John Hemphill, M.D. On examination the claimant did not appear to be in any acute distress. Musculoskeletal examination showed normal range of motion of all extremities with no joint crepitus or pain with joint motion. Attention and concentration abilities were normal. Recent and remote memory were intact and cognitive function was normal. The doctor recommended Topamax in conjunction with other medications. He noted that the claimant had quite a bit of cervical myofasical pathology and recommended physical therapy. He also found that the claimant would be a candidate for Botox injections (Exhibit 43F). In May 2014 the claimant reported that an occipital nerve block helped to some degree, but that she continued to have daily migraines. She stated that she was experiencing twitching in her hands, but that it did not prevent her from doing any of her normal activities (Exhibit 44F).

(Tr. 83-84.) The ALJ ultimately concluded that although Orff was "somewhat limited by her headaches, the evidence does not support a finding that she is totally disabled." (Tr. 85.)

In support of her allegations of error, Orff points to medical records indicating that prior to her seeking treatment from an emergency room or her treating physician, Orff's headaches would last for several days without relief from prescribed medications. (See Pl.'s Br. at 20, ECF No. 18 at 20) (citing Tr. 713, 731,3 777, 821, 897, 939, 948, 957, 966, 977, 1002, 1062, 1076, 1284, 1304, 1308, 1313, 1326, 1330, 1357, 1359, 1362, 1365, 1368, 1446). Orff also argues that the ALJ failed to acknowledge records indicating that her migraine headaches caused her to be in distress or appear uncomfortable, (Id.) (citing Tr. 731, 821, 957, 977), and caused her to be nauseated and occasionally vomit. (Id.) (citing Tr. 695, 697, 731, 741, 943, 1043-1045, 1055, 1059, 1065, 1069, 1357, 1359, 1365). Orff further points out that the ALJ failed to address the photophobia associated with her migraines, including her request to wear sunglasses at the hearing and wearing sunglasses during medical appointments. (See Tr. 102, 631, 777, 943, 1059, 1359, 1362, 1365, 1372, 1400, 1403, 1420.) Finally, Orff argues that the ALJ failed to consider reports that Orff's migraine medication was not helping or consider the numerous medications that Orff was prescribed in seeking relief. (See Pl.'s Br. at 21, ECF No. 18 at 21) (listing Orff's various medications that were prescribed over time). Based on the foregoing, Orff argues that the ALJ failed to consider all the relevant evidence in determining her residual functional capacity and whether she could work on a sustained basis. Similarly, Orff argues the failure to consider this evidence reveals a failure to properly consider all of the applicable factors in evaluating Orff's subjective complaints. See Craig, 76 F.3d at 594 (outlining the two-step process for evaluating subjective complaints); 20 C.F.R. § 404.1529(c)(3) (listing the relevant factors for consideration in evaluating subjective complaints); SSR 96-7p, 1996 WL 374186, at *44 (requiring the ALJ's decision to "contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight").

In response to Orff's arguments, the Commissioner reiterates the ALJ's findings, directs the court to some of Orff's daily activities, and argues that the ALJ accounted for limitations stemming from Orff's migraines but that he determined these findings were inconsistent with disabling limitations. However, based on all the contradictory evidence pointed out by Orff, which was not acknowledged or discussed by the ALJ, the court is unable to determine whether the ALJ's evaluation of Orff's migraines is supported by substantial evidence, and the court is unable to conduct a meaningful judicial review of the ALJ's decision. Therefore, upon review of the parties' arguments, the record in the matter, and in accordance with the above discussed law, the court is constrained to recommend that this matter be remanded for further consideration and discussion of Orff's migraines.5


Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.


1. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Carolyn Colvin as the named defendant because she became the Acting Commissioner of Social Security on January 23, 2017.
2. The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
3. The court notes that Orff's references to Tr. 731 appear to be typographical errors as the information referenced does not appear on that page, but rather on the following page—Tr. 732.
4. Effective March 28, 2016, SSR 96-7p was superseded by SSR 16-3p, 2016 WL 1119029. See 2016 WL 1237954 (correcting the effective date of SSR 16-3p to read March 28, 2016). Because this application was adjudicated prior to the effective date of SSR 16-3p, the court analyzes Orff's allegations under SSR 96-7p. See Best v. Berryhill, No. 0:15-cv-02990-DCN, 2017 WL 835350, at *4 n.3 (Mar. 3, 2017) (applying SSR 96-7p under the same circumstances). Regardless, the court observes that SSR 16-3p discontinues use of the term "credibility," but "the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider [the claimant's] report of his own symptoms against the backdrop of the entire case record." Id. (alteration in original) (quoting Sullivan v. Colvin, Civil Action No. 7:15-cv-504, 2017 WL 473925, at *3 (W.D. Va. Feb. 3, 2017)); see also Keaton v. Colvin, No. 3:15CV588, 2017 WL 875477, at *6 (E.D. Va. Mar. 3, 2017) ("Effective as of March 28, 2016, SSR 16-3p superseded SSR 96-7p. SSR 16-3p effectively removes the use of the term "credibility" but does not alter the substantive analysis.").
5. The court expresses no opinion as to the weight this evidence should be given or whether consideration of this evidence by the Commissioner or ALJ will necessarily lead to a finding that Orff is entitled to benefits. Further analysis and discussion of this evidence may well not change the conclusion.


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