United States District Court, D. New Hampshire
ORDER ON APPEAL
N. Laplante United States District Judge.
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.
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.
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.
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.
Standard of Review
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 (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.
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. Next, the ALJ determined that
Libin suffered from several severe impairments: seizure
disorder, degenerative cervical disc disease and
obesity. See 20 C.F.R. § 404.1520(c). 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. 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. 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. See 20 C.F.R. § 404.1565.
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 vocational expert's testimony, concluded
that Libin could perform jobs existing in the regional and
national economy, such as recreation attendant and gate
guard. Accordingly, the ALJ found Libin not
disabled within the meaning of the Social Security Act.
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.
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. In addition, in denying her claim for
benefits, the Agency's examiner listed Libin's
migraines as a “severe” impairment. 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. 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. The record
reflects that Libin's headaches began after a 1982 motor
vehicle accident. The headaches worsened over time, and
she received treatment for them every year between 2011 and
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.” The Assistant Commissioner agrees
that the ALJ didn't expressly mention Libin's
headaches, but argues that the ALJ addressed ...