United States District Court, D. Nebraska
HEATHER M. MILLARD, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge.
Heather M. Millard (“Millard”) seeks judicial
review of the final decision of defendant Nancy A. Berryhill,
Acting Commissioner of Social Security
(“Commissioner”), denying Millard's claim for
disability benefits under Title II of the Social Security Act
(the “Act”), 42 U.S.C. § 401 et
seq. Before the Court are Millard's Motion for an
Order Reversing the Commissioner's Decision (Filing No.
16) and the Commissioner's Motion to Affirm the
Commissioner's Decision (Filing No. 20). For the reasons
stated below, the Court affirms the denial of benefits.
1981, Millard protectively applied for disability benefits on
April 18, 2017, alleging a disability beginning January 5,
2017. Millard reported suffering severe headaches and
migraines that prevented her from working. The Social
Security Administration (“SSA”) denied her claim
initially on August 21, 2017, and on reconsideration on
October 18, 2017.
Millard's request, an SSA administrative law judge
(“ALJ”) held a hearing on April 18, 2018, at
which Millard and vocational expert Abbe May testified under
oath. Millard was represented by counsel.
testified she last worked on January 17, 2017, as a
back-office lead for retailer Best Buy doing accounting,
website maintenance, and human resources work. Best Buy
initially accommodated her migraines by allowing
Millard's subordinates to help with her work and letting
her use her vacation time. After about a year, Millard went
on short-term disability, hoping to return to work, but her
condition got worse. She was eventually let go.
hearing, Millard explained she has migraines at least twenty
days per month. Millard suffered migraines as a child, but
they got more frequent and more extreme after a car accident
on March 27, 2014. She testified that at times, they are so
bad she cannot even speak or think straight. She also suffers
sensitivity to light and sound that often require her to sit
in a dark, quiet room.
described the numerous medications she has taken and stated
that every three months, she gets Botox injections that
temporarily minimize the pain in her forehead and eyes.
Millard also noted she regularly sees a chiropractor and uses
an app on her phone to track her migraines. Millard testified
she had been having a migraine since December 3, 2017. She
initially rated the pain as a seven (presumably on a
ten-point scale), but stated it fluctuates. Millard stated
her migraines severely limit her activities and prevent her
from attending her children's concerts and sporting
events. When asked at the hearing if she had anything to add,
Millard explained she had worked since she was twelve and
that “this has been extremely hard for [her], ”
but that her neurologist, Manjula Tella, M.D. (“Dr.
Tella”), explained that disability was there to help
March 19, 2018, Dr. Tella completed a “Headache Medical
Source Statement” for Millard and provided opinions
regarding Millard's work limitations. Describing
Millard's migraines as moderate to severe, Dr. Tella
indicated Millard suffered numerous symptoms, including
vertigo, nausea, photophobia, phonophobia, inability to
concentrate, mental confusion, and impaired sleep and
appetite. Dr. Tella opined Millard suffered frequent
headaches that lasted hours. Dr. Tella stated “abortive
medications usually do not help” and reported Millard
was “[c]apable of low stress work” but would need
unscheduled breaks during the workday that would last
“hours to days.” Dr. Tella further opined Millard
would be “off task” at work 25% or more of the
time and would likely be absent from work “[m]ore than
four days per month.”
21, 2018, the ALJ examined the record and determined Millard
was not disabled under the Act. Millard appealed the decision
to the Appeals Council, which denied her request for review
on July 27, 2018, making the ALJ's decision the
Commissioner's final decision in her case. See,
e.g., Brown v. Colvin, 825 F.3d 936, 939
(8th Cir. 2016). Millard seeks judicial review of that
decision pursuant to 42 U.S.C. § 405(g).
Standard of Review
reviewing the Commissioner's final decision under §
405(g), the Court must affirm if the “denial of
benefits complies with the relevant legal requirements and is
supported by substantial evidence in the record as a
whole.” Ford v. Astrue, 518 F.3d 979, 981 (8th
Cir. 2008). “‘[S]ubstantial evidence' is a
‘term of art' used throughout administrative law to
describe how courts are to review agency factfinding.”
Biestek v. Berryhill, 587 U.S. ___, ___, 139 S.Ct.
1148, 1154 (2019).
its weighty name, the threshold for substantial evidence
“is not high.” See id., 139 S.Ct. at
1154 (“Substantial evidence . . . is ‘more than a
mere scintilla.'” (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938))). It “is
less than a preponderance, but enough that a reasonable mind
might accept it as adequate to support a decision.”
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
“[I]f supported by substantial evidence, ” the
Commissioner's factual findings are conclusive. 42 U.S.C.
determining whether substantial evidence supports the
ALJ's decision, the Court must “consider both
evidence that supports and detracts from [that]
decision.” Harris v. Barnhart, 356 F.3d 926,
928 (8th Cir. 2004). The Court does “‘not reweigh
the evidence presented to the ALJ,' and [must] defer to
the ALJ's determinations regarding the credibility of
testimony, as long as those determinations are supported by
good reasons and substantial evidence.” Gonzales v.
Barnhart, 465 F.3d 890, 894 (8th Cir. 2006) (quoting
Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir.
2003)); see also Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir. 2010) (“We defer heavily to the findings and
conclusions of the Social Security Administration.”).
“If, after review, [the Court] find[s] it possible to
draw two inconsistent positions from the evidence and one of
those positions represents the [ALJ]'s findings, [the
Court] must affirm the denial of benefits.” Wiese
v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting
Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996)).
Eligibility for Disability Benefits
qualify for disability benefits under the Act, Millard must
show she is unable “to engage in 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.” 42
U.S.C. § 423(d)(1)(A); see also Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). The
disability, not the impairment, must be continuous for at
least twelve months. See Titus v. Sullivan, 4 F.3d
590, 594 (8th Cir. 1993). Millard is disabled under the Act
only if her “physical or mental impairment or
impairments are of such severity that [s]he is not only
unable to do h[er] previous work but cannot, considering
h[er] age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. § 423(d)(2)(A).
Commissioner uses a five-step evaluation to determine if a
claimant is disabled.” Kirby, 500 F.3d at 707;
see also 20 C.F.R. § 404.1520(a). That
sequential process requires the ALJ to consider
(1) whether the claimant is currently engaged in any
substantial gainful activity; (2) whether the claimant has a
severe impairment; (3) whether the impairment meets or equals
[a listed impairment]; (4) whether the claimant can return to
her past relevant work; and (5) ...