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Millard v. Berryhill

United States District Court, D. Nebraska

June 17, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Robert F. Rossiter, Jr. United States District Judge.

         Plaintiff 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.

         I. BACKGROUND

         Born in 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.

         At 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.

         Millard 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.

         At the 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.

         Millard 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 her.

         On 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.”

         On May 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).


         A. Standard of Review

          In 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).

         Despite 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. § 405(g).

         In 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)).

         B. Eligibility for Disability Benefits

         To 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).

         “The 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) ...

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