Mary D. v. Kijakazi

Background

Mary D. sought judicial review under 42 U.S.C. § 405(g) of the Commissioner of Social Security’s final decision denying her applications for disability insurance benefits and supplemental security income. She alleged that she became unable to work on January 1, 2018, because of her disability. After a hearing, the administrative law judge (ALJ) found that she was not disabled, and the Appeals Council declined review.

The ALJ found that Mary D.’s migraine headaches were a severe impairment. The ALJ concluded that the migraines did not meet or equal a listed impairment, assessed her residual functional capacity (RFC)—the most work she could do despite her limitations—as sedentary work with numerous restrictions, and found that she could not perform her past work but could perform other jobs existing in significant numbers.

The parties filed cross-motions for summary judgment, asking the court to decide the case based on the administrative record. Mary D. challenged the ALJ’s evaluation of her migraines, her reports about the frequency and effects of those migraines, the opinions of primary-care provider Kristie Johnson, and the absence of any RFC limitation for missed work or off-task time. The Commissioner argued that substantial evidence supported the ALJ’s decision.

Listing 11.02

Mary D. argued that her migraines equaled paragraph B of Listing 11.02, a listing concerning epilepsy that the opinion identified as the most closely analogous listing. Paragraph B may be satisfied when severe migraines occur at least once a week for at least three consecutive months despite adherence to prescribed treatment.

The ALJ cited guidance for evaluating migraine disorders and referenced both paragraphs B and D of Listing 11.02. But the court found that the ALJ did not apply paragraph B’s criteria and instead focused on paragraph D’s requirement of marked limitations. The court therefore ordered reconsideration of whether the record supported paragraph B. The order’s numbered directive refers to reconsideration “at step two,” while the opinion’s analysis discusses the issue as a step-three listing determination.

Evaluation of Migraine Symptoms

The court found that the ALJ did not give adequate reasons for treating Mary D.’s reports about the intensity, persistence, and limiting effects of her migraines as inconsistent with the record. In particular, the ALJ relied on an “unremarkable” 2017 magnetic resonance imaging scan. The court explained that such testing does not establish or measure the occurrence or severity of migraines and therefore did not support the alleged inconsistency.

The court also found that the record showed continuing, disabling migraines despite some improvement with treatment. The opinion cited medical records reporting migraines three to four times per week or daily, failed or minimally effective treatments, emergency-room visits, sensitivity to light and sound, nausea, vomiting, severe pain, and interference with daily activities. The court concluded that the ALJ’s analysis was flawed and directed the ALJ to reevaluate Mary D.’s subjective symptom reports under Social Security Ruling 16-3p.

Kristie Johnson’s Medical Opinions

The court reviewed Johnson’s opinions under 20 C.F.R. § 404.1520c, which requires the ALJ to consider medical opinions using factors including supportability and consistency. The ALJ had found Johnson’s opinions unpersuasive or only somewhat persuasive, including her opinions that Mary D. could work fewer than 10 hours per week and would miss about four days of work per month because of her impairments and migraines.

The court held that the ALJ did not adequately explain why Johnson’s opinions lacked support or were inconsistent with the record. The court identified medical evidence and reports supporting Johnson’s opinions about severe migraines, difficulty maintaining attention and concentration, the need for unscheduled breaks, and regular absences. The court ordered the ALJ to reweigh Johnson’s April 2018 medical source statement and her January 2019, July 2019, and January 2020 opinions.

RFC and Absenteeism

Because the ALJ must reconsider the symptom evidence and Johnson’s opinions, the court also required reconsideration of whether the RFC should include limitations related to absenteeism or other effects of Mary D.’s migraines. The court did not itself determine what those limitations should be.

Constitutional Arguments

Mary D. also challenged the constitutionality of the statutory restriction on removing the Social Security Commissioner and raised an argument about ratification of the ALJ. Because the court was already remanding the case, it declined to take a position on the merits of the constitutional challenge. It also declined to consider the ratification argument because the opinion says it was raised for the first time in a reply brief.

Disposition

The court granted Mary D.’s motion for summary judgment in part and denied it in part, denied the Commissioner’s motion for summary judgment, and remanded the matter to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings. The ALJ must reconsider the applicable migraine-listing criteria, reweigh Johnson’s opinions, reevaluate Mary D.’s migraine symptoms, and address RFC limitations including absenteeism.