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Johnston v. Astrue

United States District Court, Third Circuit

August 28, 2013



MAURICE B. COHILL, Jr., Senior District Judge.

I. Introduction

This case is before us on appeal from a final decision by the defendant, Commissioner of Social Security ("the Commissioner"), denying Christine L. Johnston's claim for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The parties have submitted cross-motions for summary judgment. For the reasons stated below, we will deny the Defendant's motion, grant the Plaintiff's motion, and remand this matter to the Commissioner for an award of benefits.

II. Procedural History

Christine Johnston applied for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f on September 25, 2008, alleging a disability due to migraine headaches, with an alleged onset date of July 7, 2002. Plaintiff's claim was initially denied on March 10, 2009. A timely request for a hearing was filed by Plaintiff on April 2, 2009. A video hearing was held before an Administrative Law Judge ("ALJ") on June 10, 2010, at which Plaintiff was represented by counsel and testified. R. at 41-67. A vocational expert also testified at the hearing. R. 62-67.

Under the SSA, the term "disability" is defined as the:

inability 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 has lasted or can be expected to last for a continuous period of not less than 12 months...

42 U.S.C. § 423. A person is unable to engage in substantial activity when he:

is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work....

42 U.S.C. §§ 423(d)(1)(A), (d)(2)(A).

In determining whether a claimant is disabled under the SSA, a sequential evaluation process must be applied. 20 C.F.R. § 416.920(a). See McCrea v. Commissioner of Social Security , 370 F.3d 357, 360 (3d Cir. 2004). The evaluation process proceeds as follows. At step one, the Commissioner must determine whether the claimant is engaged in substantial gainful activity for the relevant time periods; if not, the process proceeds to step two. 20 C.F.R. 20 C.F.R. § 416.920(b). At step two, the Commissioner must determine whether the claimant has a severe impairment or a combination of impairments that is severe. 20 C.F.R. § 416.920(c). If the Commissioner determines that the claimant has a severe impairment, he must then determine whether that impairment meets or equals the criteria of an impairment listed in 20 C.F.R., part 404, Subpart P, Appendix. 1. 20 C.F.R. § 416.920(d).

The ALJ must also determine the claimant's residual functional capacity; that is, the claimant's ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. 20 C.F.R. § 416.920(e). If the claimant does not have impairment which meets or equals the criteria, at step four the Commissioner must determine whether the claimant's impairment or impairments prevent him from performing his past relevant work. 20 C.F.R. § 416.920(f). If so, the Commissioner must determine, at step five, whether the claimant can perform other work which exists in the national economy, considering his residual functional capacity and age, education and work experience. 20 C.F.R. § 416.920(g). See also McCrea , 370 F.3d at 360; Sykes v. Apfel , 228 F.3d 259, 262-63 (3d Cir. 2000).

By decision dated August 10, 2010, the ALJ determined that Plaintiff is not disabled under § 1614(a)(3)(A) of the SSA. R. at 10-19. The ALJ found that Plaintiff has the following severe impairments: migraines; cognitive disorder, not otherwise specified; Anxiety; Depression; polysubstance abuse; and a history of neck and shoulder injuries. R. 12.

The ALJ also determined that none of the impairments or combination of impairments meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 22-24.

The ALJ determined that Plaintiff has the residual functional capacity to perform light work, except that she can only stand and walk for up to 5 hours; she can no more than occasionally climb ramps and stairs, occasionally climb ladders, ropes or scaffolds, occasionally balance, stoop, kneel, crouch and crawl, and occasionally reach overhead with the right arm; she must avoid concentrated exposure to hazards; she is limited to performing simple repetitive work; she can engage in only occasional interaction with the public; and she can tolerate only occasional changes in the work setting. R. 14-18.

In making this determination the ALJ made the following credibility determination:

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.

R. 15. He further elaborated on his credibility determination as follows:

In assessing the credibility of the claimant's statements regarding symptoms and their effects on function, her medical history, the character of her symptoms, the type of treatment she received, her response to treatment, and her work history were all considered. To date, her treating has been very routine and conservative in nature. She has no history of hospitalization for migraines, neck and shoulder injuries, or any mental impairments. She has been prescribed antidepressant medications by her primary care physician, with good results. In addition, the undersigned notes that the claimant's daily activities are not significantly limited in relationship to the alleged symptoms. The claimant testified at the hearing that she has been a full-time student since 2008 and drives around 10 miles to school twice a week. The record also indicates that, since the accident, she has had a baby and may have taken a trip to Mexico. She has been prescribed and has taken appropriate medications for the alleged impairments, and the medical records reveal that the medications have been relatively effective in controlling her symptoms.

R. 17.

With regard to the medical evidence the ALJ gave "significant weight" to the February 4, 2009 Psychological Report, r. 274-283, completed by state agency consultative examiner Julie Uran, Ph.D. R. 16. The ALJ also gave "the State agency consultants' opinions" great evidentiary weight. R. 16. Although the ALJ did not specifically identify which state agency consultants' opinions he was referring to, his statement came after reviewing the December 18, 2008 Consultative Examination of John B. Nesbitt, M.D., r. at 268-273; the March 3, 2009 Mental Residual Functional Capacity Assessment of Richard A. Heil, M.D., r. at 284-287; and the March 3, 2009 Physical Residual Functional Capacity Assessment of Kimberly Stavish, r. 302-308. R. 15-16.

In contrast, the ALJ assigned "little weight" to the March 8, 2010 Medical Statement Regarding Pain, r. 311-314, completed by Plaintiff's treating neurologist, Donald Rezek, M.D. R. 17-18.

Considering Plaintiff's age, education, work experience, and residual functional capacity, the ALJ concluded that she is "capable of making a successful adjustment to other work that exists in significant numbers in the national economy, " and therefore she is "not disabled." R. 19.

Plaintiff filed a timely review of the ALJ's determination, which was denied by the Appeals Council on May 22, 2012. R. 1-5. Having exhausted his administrative remedies, Plaintiff filed the instant action seeking judicial review of the final decision of the Commissioner of Social Security denying his SSI application.

III. Standard of Review

The Congress of the United States provides for judicial review of the Commissioner's denial of a claimant's benefits. See 42 U.S.C. § 405(g)(2012). This court must determine whether or not there is substantial evidence which supports the findings of the Commissioner. See id. "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate.'" Ventura v. Shalala , 55 F.3d 900, 901 (3d Cir. 1995), quoting Richardson v. Perales , 402 U.S. 389, 401 (1971). This deferential standard has been referred to as "less than a preponderance of evidence but more than a scintilla." Burns v. Barnhart , 312 F.3d 113, 118 (3d Cir. 2002). This standard, however, does not permit the court to substitute its own conclusions for that of the fact-finder. See id.; Fargnoli v. Massonari , 247 F.3d 34, 38 (3d Cir. 2001) (reviewing whether the administrative law judge's findings "are supported by substantial evidence" regardless of whether the court would have differently decided the factual inquiry). So long as the ALJ's decision is supported by substantial evidence and decided according to the correct legal standards, the decision will not be reversed. Id . To determine whether a finding is supported by substantial evidence, however, the district court must review the record as a whole. 5 U.S.C. § 706(1)(F)(2012).

IV. Medical Evidence

As noted, Plaintiff filed for Supplemental Security Income alleging a disability due to migraine headaches. Plaintiff's headaches began as the result of being hit by a car while traveling as a pedestrian in July 2002. Because Plaintiff's alleged disability is her migraine headaches, her primary medical evidence consists of treatment notes from her neurologist. In addition, there is record medical evidence of hospital admissions, as well as the records and opinions of consultative and nonconsultative providers addressing both physical and mental assessments. Finally, there is also a physical assessment completed by a disability examiner who is not a medical source.

A. Treating Neurologist Donald Rezek, M.D.

Plaintiff's treating physician is neurologist, Donald Rezek, M.D. Dr. Rezek's treatment records cover the time period from October 3, 2003 through May 25, 2010. R. 219-242; 309-327. Dr. Rezek completed two Medical Source Statements, one dated July 28, 2009, and one dated March 8, 2010. R. 315; 311-314.


When Dr. Rezek first began seeing Plaintiff in October 2003, he diagnosed her with post-traumatic headaches, which he described as primarily migraine in nature, with a tension component, suggestive of cluster headaches, and with "ice pick" headaches. R. 242. He stated that the "current plan is to institute a trial of Nortriptyline" to start at 10 mg and to be increased gradually to 30 mg. R. 243. At this initial examination Dr. Rezek also had Plaintiff undergo neurologic testing, mental status testing (with comments on memory, general information, attention span, concentration, judgment, speech, language, thought, and affect), cranial nerve examination, visual and auditory testing, motor examination, sensory examination, reflex examination, coordination testing, gait, and a review of her CT scan taken after her accident. R. 243.

In November 2004, he increased the dosage of Nortriptyline, noting that there had been minimal improvement on the prior dose. R. 240. Plaintiff described the headaches as primarily consisting of severe sharp pain, followed by regular headaches, and Dr. Rezek's diagnosis was post-traumatic headaches with an ice pick quality and a more chronic vascular component. R. 240.


At her January 2004 visit, Dr. Rezek diagnosed post-traumatic headaches with qualities of vascular headaches and components of tension headaches. Plaintiff was not responding to the Nortriptyline, and Dr. Rezek noted that it was possible that she was having rebound headaches due to her use of analgesics for her pain. In other words, he explained to her that "taking any pain medicine on a daily basis may put her in a situation where she was perpetuating her problem." R. 239. He decided to institute a treatment of Depakote and Naprosyn (which was to be only used for two weeks). R. 239.

Two months later, in March 2004, Dr. Rezek' impressions were post-traumatic headaches that continue to be chronic, although overall severity has improved. R. 238. He noted that she complained of sleeping, still had frequent headaches, but that the headaches seemed to be somewhat better. R. 238. Dr. Rezek decided to start her on Amitriptyline, while continuing the Depakote. R. 238. In April 2004, Dr. Rezek's impression was chronic headaches that have become less chronic; mixed migraine syndrome, with some headaches local and others generalized; her so-called "regular" headaches are still migraine headaches; and that the headaches are directly related to her accident. R. 237. Plaintiff reported that her headaches were not always present but were still problematic, and that she has greater episodes of "headache free time." R. 237. Her current medications were continued. R. 237.

On May 21, 2004, Dr. Rezek's impression was common migraine headaches and problems with sleeping. R. 236. He continued the Depakote and prescribed clonazepam for her sleeping problems. R. 236. On June 25, 2004, his impression was "Headaches[, ] that "appear to be frequent and do not totally fit the pattern of migraines[, h]owever the nausea and general throbbing pain characteristics do." R. 235. Plaintiff reported that she was having migraines 3 to 4 times a day. R. 235. He decreased the dosage of clonazepam and instituted a trial of Trazadone for her sleep problems, which he noted may help with her headaches. R. 235.

On July 6, 2004, Dr. Rezek authored a letter to an insurance company concerning whether the recent June visits should be covered by insurance. R. 234. He explained that he sees Plaintiff for chronic post traumatic headaches that "have a mixed tension headache/migraine syndrome" that has been "more difficult to deal with than simple migraine headaches." R. 234. He noted that at the April 2004 visit her headaches seemed to have become less chronic. R. 234. He also noted that her low valproic acid level suggested that Plaintiff was either a fast metabolizer or was not taking the Depakote as ordered and therefore he increased the dosage. R. 234.

On August 17, 2004, Dr. Rezek noted that Plaintiff was taking Trazadone as well as clonazepam (in addition to her Depakote). R. 233. Prior to this visit, she had "gone off both medications because they did not seem to be working anymore" but then she restarted them. R. 233. He also noted that she continues to have headaches she describes as migraines with sharp pains in the side of her head as well as more generalized "regular" headaches. R. 233. The sharp headaches tend to last 30 seconds but are not persistent, and the regular headaches are persistent. R. 233. His impression was, in part, "Migraine headaches with ice pick' headache symptoms." R. 233. He suggested that if she took her medication more intermittently rather than being dependent on it continually, she would get more benefit from it. R. 233. In October 2004, Plaintiff noted fewer headaches. R. 232. She was no longer on Trazadone, but was continuing with Depakote, and Dr. Rezek diagnosed common migraine headaches. R. 232.


On January 11, 2005, Dr. Rezek diagnosed migraine headaches and persistent back pain, and Plaintiff reported that she felt the Depakote was helping significantly with the headaches although she still complains of occasional headaches. R. 231. The next visit was not until April 19, 2005, at which time Plaintiff complained of having more headaches as well as memory issues. R. 230. Dr. Rezek's impressions were continued headaches with some increased frequency and severity and complaints of memory problems. R. 230. He increased her Depakote dosage and again started Nortriptyline. R. 230.

On July 19, 2005, Dr. Rezek noted that Plaintiff "has had significant improvement in her regular migraines but overall she continues to have frequent ice pick headaches" that "can be quite severe." R. 229. His impression was continued migraine headaches with more of an ice pick type quality, and he planned to transition her to Topamax, while decreasing her Depakote. R. 229.


Plaintiff was next seen by Dr. Rezek on February 24, 2006, at which time he learned that Plaintiff was pregnant and was currently on no medications. R. 228. Due to the pregnancy he determined that it was "just as well" that she was not taking the medications and decided not to initiate any treatment for the migraines. R. 228. On April 25, 2006, Dr. Rezek noted that Plaintiff continued to have significant headaches; that she had not gone for obstetrical care as he had advised; and that she is to avoid medications for headaches while pregnant. R. 227.

A week after she gave birth, Plaintiff returned to Dr. Rezek on September 25, 2006, in order to restart her headache medication. R. 226. Dr. Rezek noted that she continued to have severe migraine type symptoms and prescribed Topamax. R. 226. On December 19, 2006, Dr. Rezek reported that Plaintiff's insurance would not cover Topamax until she had first tried another medication, and therefore he prescribed Inderal. R. 225. He noted that the prescription he writes should be larger than usual because the "patient is going to be going out of the country to Mexico." R. 225.


Although on December 19, 2006, Dr. Rezek was issuing a prescription for a 3-month supply of Inderal due to Plaintiff's planned trip to Mexico, only two weeks later he increased the dosage of Inderal, and during the month of January he increased it to 60 milligrams with no response. R. 223. This suggests that Plaintiff was available during the three month time period that she was planning to go to Mexico. R. 223. In addition, Dr. Rezek noted on February 22, 2007, that Plaintiff had a history of severe chronic ...

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