United States District Court, S.D. Indiana, Indianapolis Division
SHARLET R. HUNGERFORD, Plaintiff,
NANCY A. BERRYHILL Deputy Commissioner for Operations, Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON SOCIAL SECURITY
Baker, United States Magistrate Judge
Social Security appeal, Plaintiff Sharlet R. Hungerford
argues the Administrative Law Judge failed to properly
consider her fibromyalgia and migraine headaches. Hungerford
contends the ALJ's fibromyalgia analysis was perfunctory.
And for both fibromyalgia and migraines, Hungerford maintains
the ALJ ignored and misconstrued evidence and failed to
obtain a medical expert opinion on equivalency, which
resulted in the ALJ impermissibly relying on her own lay
opinion. Defendant Nancy Berryhill responds that the Court
should affirm the ALJ's decision because the decision as
a whole supports the ALJ's conclusions and the ALJ acted
within her discretion in deciding not to seek an additional
expert opinion. As explained below, the Magistrate judge
recommends that Hungerford's request for remand
[Filing No. 15] be granted because the ALJ failed to
adequately analyze Hungerford's fibromyalgia and
has a high school education and has worked as a bartender,
housekeeper, hand packager, and as an order taker. Hungerford
sought disability insurance benefits and supplemental
security income in May 2014, alleging disability beginning in
January 2013. Her application was denied initially and upon
review. Following a hearing, the ALJ found that Hungerford
was not disabled. Hungerford appealed the decision, but the
Social Security Administration adopted the ALJ's decision
over Hungerford's objections.
reaching her decision, the ALJ followed the SSA's five
step sequential evaluation process. The ALJ found Hungerford
satisfied step one because she had not engaged in substantial
gainful activity since before her alleged onset date. At step
two, the ALJ found Hungerford had several severe impairments:
“osteoarthritis of the knees, degenerative disc disease
of the lumbar spine, osteoporosis, fibromyalgia, headaches,
depression, and posttraumatic stress disorder.”
[Filing No. 13-2, at ECF p. 13, R. at 12.] At step
three, the ALJ found Hungerford did not have an impairment or
combination of impairments that met or medically equaled one
of the listings in 20 C.F.R. pt. 404 sub. pt. P. app. 1. The
ALJ considered whether Hungerford's condition met or
equaled Listings 1.02, 1.04, 12.04, 12.06, and 14.09D.
Hungerford argues the ALJ should have also considered Listing
reaching step four, the ALJ determined that Hungerford had
the residual functional capacity to do light work, subject to
postural and manipulation restrictions. The ALJ also limited
Hungerford to simple and routine tasks with no more than
simple, routine changes in her work environment. At step
four, the ALJ considered Hungerford's RFC and testimony
from a vocational expert and determined that Hungerford was
capable of performing past relevant work as a housekeeper.
raises three principal arguments. First, Hungerford argues
the ALJ's consideration of Listing 14.09D was perfunctory
and that the ALJ played doctor by looking for specific
evidence, and then deciding against Hungerford when she did
not find that evidence. Second, Hungerford challenges the
ALJ's consideration of her migraines, arguing the ALJ
failed to address Listing 11.03 altogether and did not
consider her limitations due to migraines. Third, Hungerford
contends the ALJ necessarily played doctor by failing to
obtain an expert opinion that specifically addressed whether
her impairments medically equaled Listings 14.09D or 11.03.
Court reviews ALJs' decisions to ensure they apply the
correct legal standard, and their decisions are supported by
substantial evidence. Bates v. Colvin, 736 F.3d
1093, 1097 (7th Cir. 2013). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir.
2017). It “must be more than a scintilla but may be
less than a preponderance.” Skinner v. Astrue,
478 F.3d 836, 841 (7th Cir. 2007). The Court's review is
deferential-it cannot reweigh the evidence or supplant the
ALJ's judgment with its own. Summers, 864 F.3d
are presumptively eligible for benefits if their impairments
meet or equal one or more of the impairment listings.
Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir.
2015); 20 C.F.R. § 404.1520(d). Claimants may satisfy a
listing's requirements by meeting the listed criteria or
by showing that their symptoms medically equal the severity
of the listing. Minnick, 775 F.3d at 935; 20 C.F.R.
§ 404.1526. “Whether a claimant's impairment
equals a listing is a medical judgment, and an ALJ must
consider an expert's opinion on the issue.”
Barnett v. Barnhart, 381 F.3d 664, 670 (7th Cir.
2004) (citing 20 C.F.R. § 404.1526(b)). ALJs “must
discuss the listing by name and offer more than a perfunctory
analysis of the listing.” Id. at 668.
Fibromyalgia and Listing 14.09D
makes two arguments specific to the ALJ's discussion of
Listing 14.09D as it relates to her fibromyalgia: 1) the
ALJ's analysis was perfunctory and 2) the ALJ played
doctor by failing to address contradictory evidence and by
assuming Hungerford's treatment was conservative.
Hungerford's second argument is persuasive.
listing specifically addresses fibromyalgia, but ALJs are
nonetheless required to determine whether the claimant's
condition medically equals another listing. Soc. Sec.
Ruling 12-2p, Titles II and XVI: Evaluation of
Fibromyalgia, SSR 12-2P, 2012 WL 3104869, at *6 (July
25, 2012). Listing 14.09D, which is the listing for
inflammatory arthritis, is expressly highlighted as an
example of a listing that a claimant's fibromyalgia
condition may equal. Id.
Repeated manifestations of inflammatory arthritis, with at
least two of the constitutional symptoms or signs (severe
fatigue, fever, malaise, or involuntary weight loss) and ...