UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Michelle Aimee Libin

v. Civil No. 17-cv-320-JL Opinion No.

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

(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

(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.,

(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,

(1971) (quotations omitted). This is

less evidence than a preponderance but “more than a mere

scintilla.” Id.; Consolo v. Fed. Mar. Comm’n,

, 620

2 (1966). The possibility of drawing two inconsistent conclusions

from the evidence does not preclude a finding of substantial

evidence. Consolo,

. 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.,

(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

.

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

(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

(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

(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

.

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,

(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.”

(d)(5)(B); see Alcantara v. Astrue, 257

F. App’x. 333, 335 (“the ALJ [is] required to weigh all of the

evidence”) (citing

(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

(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

. 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,

, 7-8; see also SEC v. Chenery Corp.,

(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,

, 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.

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.”

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,

.

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.

9