United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE.
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”) 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.
Plaintiff's Employment and Medical History
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
constableand for a family jewelry company. Tr.
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.
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.
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.
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,  in June 2016, Plaintiff began an intensive
course of physical therapy (“PT”), which
continued for more than six months.
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.
The ALJ's Decision
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.
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.