Bagnell v. Comm’r of Soc. Sec. Admin., No. CV-22-00116-TUC-MSA, 2023 WL 2945321 (D. Ariz. Apr. 14, 2023)

In the underlying claim, the claimant was an individual closely approaching advanced age who asserted disability based on various mental disorders as well as migraines, which she stated occurred nearly every day and prevented her from performing activities while active. Applying the criteria in SSR 19-4p, Question 7, the ALJ found that migraines were not a medically determinable impairment because the record did not contain an observation of a typical migraine event and detailed description of the event by an acceptable medical source. The ALJ therefore did not consider limitations stemming from migraines in the balance of the analysis.

However, the record did contain diagnoses of migraines from acceptable medical sources throughout with evidence that the sources reviewed medical history, made thorough examinations, and made the diagnosis only after excluding other causes; unremarkable findings on laboratory tests ruling out other causes for headaches; and thorough documentation of responses to multiple treatment modalities. Thus, the other three factors listed in SSR 19-4p, Question 7 were glaringly obvious in the longitudinal record.

Claimant argued that the phrase in the subregulatory guidance that “we will consider the following combination of findings reported by an AMS when we establish a primary headache disorder as an MDI” did not require documentation of every factor, as the ALJ had required, but rather documentation of some combination of factors sufficient to show that a medically determinable impairment existed. The District Court agreed:

The ruling’s phrasing (“we will consider”) indicates that the listed items are considerations (factors). In this case, however, the ALJ treated the second consideration as a requirement…

The ALJ apparently believed that the absence of the second consideration was fatal, because the ALJ did not even mention the first, third, and fourth considerations. This omission was harmful error. The other considerations arguably support a finding that Plaintiff’s migraines are medically determinable.

Bagnell v. Comm’r., 2023 WL 2945321, at *2-3.

As a secondary error, the District Court found that a residual functional capacity that included the ability to maintain concentration for approximately 2-hour blocks and to work consistently and at a reasonable pace for approximately 2-hour segments between arrival, first break, lunch, second break, and departure reflected only the basic mental capacity needed in any job and did not account for any limitations in persistence. Because the ALJ had been persuaded by a consultative examiner’s opinion that included a statement that the claimant would have “significant limitations” in concentration and persistence, there was an inconsistency in the ALJ’s findings that would need to be resolved on remand.

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