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John S. v. Berryhill

United States District Court, D. Rhode Island

September 21, 2018

JOHN S., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff John S. has moved for reversal of the decision of the Commissioner of Social Security (the “Commissioner”) denying Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under §§ 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (the “Act”). He contends that the Administrative Law Judge (“ALJ”) erred in establishing a residual functional capacity (“RFC”)[1] devoid of any limitations arising from his severe migraine headaches. Defendant Nancy A. Berryhill (“Defendant”) has filed a motion for an order affirming the Commissioner's decision. The matter has been referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Having reviewed the entire record, I find that the ALJ's RFC finding is sufficiently supported by substantial evidence and untainted by legal error. Accordingly, I recommend that Plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 10) be DENIED and Commissioner's Motion to Affirm Her Decision (ECF No. 12) be GRANTED.

         I. Background

         A. Plaintiff's Employment and Medical History

         Plaintiff's medical history prior to his alleged onset of disability may be briefly summarized. In 2001, at the age of seventeen, while intoxicated, he was the unrestrained driver in a tragic motor vehicle accident; he sustained a serious head injury, including optic nerve damage. Tr. 253, 283-86. Two and a half years later, on August 26, 2003, a neuropsychological re-evaluation performed by two psychologists includes the conclusions that he had made a “good recovery” from the head injury, that his decision to work in computer science would be a “good fit, ” and that he was left with only “mild difficulty” in attention, language, and learning of discrete verbal information. Tr. 251-57. A 2010 MRI of the brain was normal. Tr. 269. A 2010 eye examination found no vision issues, despite Plaintiff's complaint of eye pressure with nausea and his reported history of migraines. Tr. 258-59. Throughout this period, Plaintiff was employed, working in sales at Best Buy, as a technician at Pitney Bowes, as a state constable[2]and for a family jewelry company. Tr. 50-53, 187.

         After Plaintiff's alleged onset of disability (September 1, 2011) and continuing past his date-last-insured (December 31, 2011), he continued to work, albeit never at a job that amounted to “substantial gainful activity.” Tr. 28. For example, in 2015, he told Dr. James Sullivan that he was “working at his friend's marijuana harvesting facility” and complained that repeated use of scissors during that job had injured his elbow. Tr. 263. In addition, he testified that he also did intermittent computer jobs, such as installing a printer, for two to three hours a week. Tr. 53-54. In relation to the latter work, during his six months of physical therapy in 2016, he consistently advised staff that he was self-employed, once describing himself as a “programmer” and once as “working FT/FD (self).” Tr. 453-97. When the ALJ asked about this claim of work as a “programmer, ” Plaintiff testified that he was not really working and that he said “I program” because PT staff asked him, “what do you do?” Tr. 54-55. As of the ALJ hearing, Plaintiff was living in his own apartment, which he keeps clean, although his mother still does his laundry because she sees him getting sweaty and irritable carrying the basket up and down. Tr. 67.

         Over the four-year period from Plaintiff's September 2011 alleged onset until shortly before he applied for disability in September 2015, Plaintiff's only medical treatment of record was an emergency room visit for a cut on his thumb not serious enough to require stitches. Tr. 260. The first post-onset relevant treatment was an initial evaluation with Dr. Sullivan on July 20, 2015; Dr. Sullivan noted Plaintiff's history of head trauma and migraine headaches and referred him to a neurologist, Dr. Keith Brecher. Tr. 264. At the first appointment with Dr. Brecher on August 25, 2015, Plaintiff reported three to four migraines a week with vomiting, a pulsating left eye, and feeling nauseous all the time, although, on examination, everything was normal. Tr. 266-67. Dr. Brecher prescribed medication for headaches and nausea. Tr. 267. In October 2015, Plaintiff followed-up with Dr. Brecher; based on his subjective report that the prescribed medications were not working and he was continuing to have three to four headaches per week, Dr. Brecher adjusted the medications. Tr. 275. In December 2015, Plaintiff returned to Dr. Sullivan and complained of stress due to a family circumstance; on the same day, Plaintiff also told Dr. Brecher that his migraines had gotten worse with stress. Tr. 271, 273. Dr. Brecher again found no abnormalities on examination. Tr. 273. A brain MRI done in December 2015 showed surgical changes and mild, nonspecific white matter change that “could reflect nonspecific white matter change or a focus of shear injury.” Tr. 277. Dr. Brecher's subsequent treating note makes no reference to this MRI. See n.5, infra.

         In connection with the application, the file was reviewed by the SSA expert physicians, Dr. Karen Grande at the initial phase and Dr. Abraham Colb on reconsideration; Dr. Colb's file review was completed in February 2016. The file that they reviewed included the massive record from Plaintiff's 2001 hospitalization, the 2003 neuropsychological re-evaluation, the 2010 and 2015 brain MRIs, and the 2015 treating notes of Drs. Sullivan and Brecher. The SSA experts analyzed Plaintiff's claims of chronic head pain and nausea, both for the DIB claim and for the SSI claim; they concluded that Plaintiff's “[i]mpairment or combination of impairments does not significantly limit physical or mental ability to do basic work activities.” Tr. 79, 87, 95, 103.

         After the Grande/Colb SSA opinions were submitted, Plaintiff's treatment continued but with a shift of emphasis. On January 20, 2016, Plaintiff visited the emergency department complaining of headache and neck pain; he reported a history of chronic migraines with vomiting but told staff that the neck pain was new. Tr. 447. After the pain was alleviated with medication, he was sent home; his request for a brain scan was refused as not clinically indicated. Tr. 449. When Plaintiff saw Dr. Brecher a week later, the focus was on the pain in his neck; Dr. Brecher speculated that Plaintiff's cervical issues might be causing the headaches. Tr. 434. A February 2016 CT of the cervical spine confirmed disc disease. Tr. 438. After several failed referrals to pain clinics, [3] in June 2016, Plaintiff began an intensive course of physical therapy (“PT”), which continued for more than six months.

         This PT was very successful. Tr. 453-97. Within less than a month, Plaintiff was no longer taking sumatriptan for migraines. Tr. 461. Dated January 18, 2017, the PT discharge report records that PT has helped him to improve overall function, he has less frequent headaches and has increased ability to complete activities of daily living and heavy chores. Tr. 499. Dr. Brecher concurred, noting in October 2016 that “[Plaintiff] feels as if PT helped him more than taking medication.” Tr. 428.

         B. The ALJ's Decision

         Focusing first on the DIB claim, the ALJ carefully reviewed the “scant record evidence” between Plaintiff's recovery from the 2001 accident until 2015 and found that, prior to his date-last-insured (December 31, 2011), Plaintiff did not have any severe impairment and therefore was not disabled during the period when he was eligible for disability insurance. Tr. 30-31. As to the SSI claim, at Step Two, the ALJ found that Plaintiff did have severe impairments, specifically, migraine headaches, cervical degenerative disc disease, a history of craniotomy, and left optic nerve damage. Tr. 31. With this finding, the SSI sequential analysis continued.

         In assessing the severity and limiting effects of Plaintiff's migraine headaches, the ALJ relied on the SSA non-examining physicians, Drs. Grande and Colb, who opined based on the record developed as of February 2016. During the time covered by their file review, treatment was focused on Plaintiff's complaints of frequent and severe migraines and treatment of migraines by Dr. Brecher, a neurologist. Tr. 36-37. The ALJ afforded the SSA physicians “some weight, ” because they did not have access to the 2016/2017 treating record, which is focused on neck pain, including how PT for neck pain resulted in improvement of the migraines. Tr. 37. After a detailed analysis of the treating record (including Dr. Brecher's treating notes), the ALJ noted her agreement with the SSA assessment that the migraines caused minimal functional impact, an assessment that she found was confirmed by the post-February 2016 treatment during which the migraines improved to the point where Plaintiff ceased taking prescribed medication. Tr. 32-37. The ALJ determined that, despite his impairments, Plaintiff retained the RFC to perform the full range of light work, resulting in a finding of “not disabled.” Tr. 38. She explained that the limitations incorporated into the RFC were based principally on the limiting effects of cervical degenerative disc disease, in combination with the other severe impairments (including the migraines). Tr. 37.

         II. Stand ...


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