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Heath v. Berryhill

United States District Court, D. Vermont

February 15, 2017

LUCY HEATH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER (DOCS. 8, 9)

          Honorable J. Garvan Murtha United States District Judge

         I. Introduction

         Plaintiff Lucy Heath (Heath) brings this action under 42 U.S.C. § 405(g) of the Social Security Act, requesting review and reversal of the Commissioner of Social Security's (Commissioner) denial of her application for disability insurance benefits. Pending before the Court are Heath's motion seeking an order reversing the Commissioner's decision (Doc. 8 (Doc. 8-1 Memorandum)), and the Commissioner's motion seeking an order affirming her decision (Doc. 9). Heath filed a reply in further support of her motion. (Doc. 12.) For the reasons set forth below, Heath's motion to reverse is granted, the Commissioner's motion to affirm is denied, and the matter is remanded for further proceedings and a new decision.

         II. Background

         On March 26, 2013, Heath filed an application for disability insurance benefits alleging she became disabled on June 15, 2010. (A.R. 18, 153.) On June 20, 2013, her application was denied. (A.R. 93.) Her request for reconsideration was denied on October 16, 2013. (A.R. 99.) Heath filed a timely request for an administrative hearing (A.R. 106), which was held by Administrative Law Judge ("ALJ") Matthew Levin on December 11, 2014 (A.R. 18, 44-74). She appeared with a representative at the hearing and testified. Id. On March 18, 2015, the ALJ issued a decision concluding Heath was not disabled within the meaning of the Social Security Act ("SSA") from the alleged disability onset date. (A.R. 18-32.) The Appeals Council denied her timely request for review on August 31, 2015, and the ALJ's decision became the final decision of the Commissioner. (A.R. 1.)

         On September 28, 2015, Heath timely filed this action. (Docs. 1, 3.) She raises seven challenges to the ALJ's decision: (1) whether the incorrect last insured date in the hearing decision requires remand; (2) whether the ALJ properly evaluated her migraine headaches and associated limitations in the residual functional capacity ("RFC") finding; (3) whether the ALJ properly evaluated Nurse Finley-Bruno's opinion; (4) whether her depression was a severe impairment; (5) whether the ALJ properly evaluated Psychologist Nostrant's opinion; (6) whether the ALJ's credibility determination was supported by substantial evidence; and (7) whether the ALJ erred by concluding she could perform her past relevant work. (Doc. 8-1 at 2.)

         Heath, born in May 1961, has a high school education and two years of college. (A.R. 47-48.) She worked as a para-professional (teacher's aide) at an elementary school for nine years until June 2010 when she was laid off during a reduction in force. Id. at 48, 51. She believes she was laid off because she often missed work as a result of her migraines. After June 2010, she volunteered sporadically at a library and worked from June 2007 until February 2013 at a friend's gift shop for less than ten hours per week. She testified her migraine headaches caused her to miss two to three days of work per month at the school, be unreliable at the library, and often limited her duties at the store. Id. at 50-54.

         Heath treated with Nurse Practitioner Jessica Macleod regularly for recurrent migraine headaches. On March 18, 2010, she reported experiencing migraine headaches at least monthly. (A.R. 381.) In January 2011, she reported continuing to have migraines a "couple" times per month but "not as severe as they once were;" if she felt one coming on, medicine usually aborted it and if it was still present in the morning, a different medicine would abort the headache. (A.R. 584.) In October, she reported an increased frequency of headaches (one headache/migraine every two weeks) (A.R. 570), and in December noted the headaches persisted and attributed them to stress (A.R. 566). In March 2012, she reported her headaches were "much diminished" (only twice per month from 4-6 times per week) (A.R. 300), and in April, noted she had no ER visits or hospitalizations in the past year (A.R. 304). In June, however, she reported not taking all her prescriptions because her insurance changed and she could not afford them; as a result, her headaches increased and she visited the ER for a headache. (A.R. 308.) In April 2013, she reported three ER visits in six months and noted she averaged two migraines per month with the last severe one in February. In May and June, she reported going to the ER for migraines, that generic medicine was ineffective, and her migraines occurred twice monthly on average. (A.R. 537-38.) By August, she reported her migraines were somewhat improved (A.R. 529), and in April 2014, her migraines were "relatively well-controlled, " though she recently had a migraine with photophobia and nausea but had not had one in "awhile, " (A.R. 673-74).

         Heath also treated at the Dartmouth Hitchcock Neurology Department for her migraine headaches. In August 2009, she reported headaches since 1983, worse since 1987, currently getting two per month each lasting three days. (A.R. 502.) In October 2009, she reported "a few" headaches a month but that she can tell the night before and medicine will abort the headache. (A.R. 500.) In June 2013, she reported severe headaches once per week generally lasting 3-4 days and medicine that used to help no longer does. Doctor Levin noted his impression of "analgesic rebound (medication overuse headache)" and depression. (A.R. 523-24.) In September 2014, she saw Nurse Practitioner ("NP") Joyletta Finley-Bruno because Dr. Levin was no longer at Dartmouth. She reported a severe headache frequency of once per week generally lasting 3-4 days and she visited the ER for a headache since her June Botox treatment with Dr. Levin. (A.R. 688-89.) NP Finley-Bruno noted the plan to increase Botox treatments to every ten weeks. (A.R. 684.) In October, she reported 11 headaches since her September visit and that she had been to the ER but NP Finley-Bruno noted "per her headache calendar they are improving." (A.R. 701.)

         In January 2015, in response to questions from Heath's counsel, NP Finley-Bruno stated that Heath would be absent or have to leave work during a headache attack which she would estimate as occurring 1-2 times per week or 6-8 times per month with a duration of one day per attack. (A.R. 723.) She prefaced her answers by noting she had only seen Heath three times. Id. Heath also saw Heidi Nostrant, a licensed psychologist, regularly from March 2013 through May 2014 and again beginning in October 2014. (A.R. 635-46.) Psychologist Nostrant diagnosed major depressive disorder, moderate, recurrent and post-traumatic stress disorder, assigned Heath a Global Assessment of Functioning ("GAF") score of 65[1] and stated Heath had "marked" restrictions in activities of daily living and maintaining concentration, persistence or pace. (AR 712-14, 715-20.)

         In an April 2013 Function Report, Heath stated she mainly spent her days watching television, had problems sleeping but no issues with personal care, including remembering to take medicine, prepared her own meals, went outside several times a week, including a weekly grocery trip, drove a car and could go out alone. (A.R. 195-98.) She noted her hobbies were watching television, reading and crocheting and she socialized weekly with a friend. Id. at 199. She had difficulty completing tasks and concentrating since she had been depressed. Id. at 200.

         Heath's friend Sandra Darling, for whom she worked in the gift shop, noted in a job screening questionnaire Heath generally could do everything without problems but "when [Heath] experiences migraine headaches she waits on customers only, she cannot do any computer work, cleaning, breaking down boxes or help plan events which usually does easily." (A.R. 212-13.)

         State agency professionals also opined on Heath's condition. At the initial disability determination, in June 2013, state agency physician Dr. Carl Runge stated her migraine headaches were not a severe impairment: the frequency did not meet the requirement for social security listing. (A.R. 79-80.) Also in June 2013, State agency psychologist Dr. Edward Hurley stated she did not have a severe mental impairment as she had only mild restriction of activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence or pace. Id. at 80-81. At reconsideration, in October 2013, state agency medical consultant Dr. Leslie Abramson stated Heath's migraines were not of listing level frequency, icl at 89, and state agency psychologist Dr. Joseph Patalano stated Heath did not have a severe mental impairment as she had only mild restriction of activities of daily living, mild difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence or pace. Id. at 89-90.

         At the hearing, a vocational expert testified that someone of a similar age, education and vocational background as Heath, without exertional impairments, who would be absent from work one day per month could maintain competitive employment. (A.R. at 68.) If the absences increased to two to three days per month, however, the person could not maintain ...


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