Failure to Consider All Impairments Leads to Remand
January 21, 2010
Author: Catherine M. Callery (Kate)| Louise M. Tarantino
There is certainly one former ALJ from the Albany ODAR who will not be missed. Although this retired ALJ will remain nameless, many of you know who we’re talking about! Well, here’s another federal court decision reversing this ALJ’s second unfavorable decision in a case.
Magistrate Peebles of the NDNY found that the ALJ failed to consider one of the claimant’s significant impairments, her migraine headaches. As the Court noted, “[D]espite significant evidence of reports by the plaintiff of migraine and tension headaches extending over a period of many years, the ALJ did not even include headaches among the impairments listed at step two of his decision.”
The Court went on to note that the RFC determination was not supported by substantial evidence because the ALJ plainly failed to consider the cumulative impact of all of plaintiff’s impairments, most notably the contributing effects of her headaches. In this regard, it is significant that when questioned by plaintiff’s counsel, the vocational expert, upon whose opinion the ALJ’s finding was premised, acknowledged that the existence of migraines affecting plaintiff’s ability to work could create concern for an employer.
In conclusion, the Magistrate held that the ALJ’s determination gave “short shrift to plaintiff’s migraine headaches, and their impact, together with her other mental and physical conditions, upon her ability to perform work related functions, thereby infecting the ALJ’s RFC finding, and in turn the conclusion that plaintiff is not disabled.” Although the Court seemed concerned that the case was before this ALJ for two different hearings, once required by an Appeals Council remand, Magistrate Peebles did order a remand for further proceedings. At least the case will go to a different ALJ the next time around!
Congratulations to Joanna Davis of the Legal Aid Society of Northeastern New York’s Saratoga Springs office for excellent advocacy, persistence and determination in pursuing benefits in the case of Ebert v. Astrue, 2009 WL 3764219 (N.D.N.Y. November 10, 2009).
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