Blackert v. Colvin

Filing 24

RULING granting 19 Motion to Reverse the Decision of the Commissioner; denying 23 Motion for Judgment on the Pleadings. The case is remanded to theSocial Security Administration for further proceedings consistent with this Ruling. Signed by Judge Janet C. Hall on 7/25/2017. (Anastasio, F.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LISA M. BLACKERT,
Plaintiff,

CIVIL ACTION NO.
3:16-CV-1327 (JCH)

v.
NANCY E. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY, U.S.A.,
Defendant.

JULY 25, 2017

RULING RE: MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. NO. 23) &
MOTION TO REVERSE THE COMMISSIONER’S DECISION (DOC. NO. 19)
I.

INTRODUCTION
Plaintiff Lisa M. Blackert (“Blackert”) brings this action under title 42 section

405(g) of the United States Code, appealing from the final determination of the
Commissioner of Social Security (“the Commissioner”), denying her disability insurance
benefits and supplemental security income. Motion to Reverse the Decision of
Commissioner (“Pl.’s Mot.”) (Doc. No. 19). The Commissioner cross-moves for an order
affirming that decision. Defendant’s Motion for Judgment on the Pleadings (“Def.’s
Mot.”) (Doc. No. 23).
For the reasons set forth below, the Motion to Reverse the Decision of the
Commissioner is GRANTED, and the Motion for Judgment on the Pleadings (Doc. No.
23) is DENIED. The case is remanded to the ALJ for proceedings consistent with this
decision.
II.

BACKGROUND
A.

Facts

1

Lisa M. Blackert was born in 1958, and was 52 years and 9 months old at the
age of her alleged onset date of March 21, 2011. Plaintiff’s Statement of Facts (Doc.
No. 19-1) at 2. She is a licensed practical nurse, but has not worked since March of
2011, with the brief exception of a nursing position she held in 2013, from which she
was terminated two weeks into a three week orientation program because she “wasn’t
catching on fast enough and [she] was too slow.” Certified Transcript of Record (“R.”) at
129.
The medical record begins in February of 2011. On February 8, 2011, Blackert
was seen by David Bounds, APRN, and Dr. Mark Thimineur for “chronic migraines,
knee, multifocal pain.” R. at 396. Treatment notes from that visit reflect that Blackert’s
“pain medications are helping to some extent, but she is still having more headaches
than she would like.” Id. She was diagnosed with “Chronic headache pain secondary
to migraines, neuralgias.” R. at 397.
Blackert was seen by Dr. Thimineur again on April 19, 2011, for bilateral “knee
pain due to ACL repair and chronic migraine headaches.” R. at 399. Dr. Thimineur
noted that Blackert was taking Relpax and Topamax for her headaches, both of which
“help her,” and was also taking Percocet for her knee pain. Id.
Blackert saw Courtney Howard, Certified Physician’s Assistant, for July 25, 2011,
for hypertension, migraine headaches, and depression. Howard’s notes reflect that
Blackert’s headaches were “controlled with pm Relpax” and that she was “doing ok on
Effexor 75mg” with respect to her depression.
On October 27, 2011, Blackert saw Heather Alfonso, Advanced Practice
Registered Nurse, for pain resulting from migraine headache and headache. R. at 403–

2

04. Blackert’s headaches were described as having an “aching and crushing” quality,
with associated symptoms of “swelling, photosensitivity, nausea and vomiting during
headache.” R. at 403. Treatment notes reflect that Blackert’s headaches are alleviated
by “medication, rest and dark room” and exacerbated by “bright lights, loud noise,
chewing and stress.” Id. The severity of Blackert’s headaches was characterized as “2”
and the narrative section notes that Blackert was “[d]oing well with current medication
regime.” Id. Results of physical and neurological exams were all in the normal range.
On January 27, 2012, Alfonso saw Blackert again and noted that her “[p]ain
levels, functionality have remained stable without any major changes since the last
visit.” R. at 406.
On April 17, 2012, Alfonso saw Blackert again. R. at 409. Alfonso’s treatment
notes reflect that Blackert’s younger sister died of a heart attack since her last visit, and
that she was very upset as a result. Id. Alfonso states that Blackert “has a hard time
even getting out of her house to run errands.” Id.
On July 18, 2012, Alfonso saw Blackert again. Alfonso’s notes state that “Patient
reports >50% relief of pain, improvement in participation in activities of daily living on
current medication regimen, Patient does not report any side effects or adverse
reactions from prescribed opioid medications and No aberrant behaviors related to
prescribed opioids identified during this visit.” R. at 414.
On January 15, 2013 Alfonso saw Blackert again, and noted that Blackert “will
potentially be starting a new position in assistive living.” R. at 418. Alfonso further
notes that Blackert’s “pain levels are stable” and that her pain is “manageable.” R. at
419.

3

On April 10, 2013, Alfonso saw Blackert again. Alfonso states that Blackert’s
“pain levels have been stable with Percocet,” and that Cymbalta (an antidepressant)
has been “helping significantly.” R. at 421.
On July 10, 2013, Alfonso saw Blackert again, and noted that Blackert reported
both that her “current pain medication regimen are ‘helping tremendously’” and that
Blackert “noticed an increase in her migraines (15 or more episodes) with nausea over
the past 2 months.” R. at 425. In this visit, Alfonso and Blackert discussed the
possibility of Botox injections for her migraines, and Blackert “verbalize[d] interest” in
that treatment. Id. Alfonso’s notes describe Blackert’s migraines as occurring “on
greater than 15 days per month for at least 3 months” with “at least five full filling [sic]
criteria for migraine without aura, headaches on average last more than 4 hours.” Id.
Alfonso describes the pain as “moderate or severe in intensity” with “nausea and/or
vomiting, photophobia and phonophobia.” R. at 426. Alfonso further notes that Blackert
“complains of pain and muscle tenderness of her neck and shoulders.” Id. During this
visit, Alfonso describes administration of “Spinal accessory nerve block” and “Occipital
nerve block” for “pain relief” and “Trigger point injection” for “pain control.” R. at 426.
On August 20, 2013, Blackert saw APRN Patricia Blanc at Cornell Scott Hill
Health Center. During that visit, Blackert reported “sparks out of peripheral of right eye
x weeks” and “Constant migraine headaches x 30 years.” R. at 385. Blanc’s notes
reflect that Blackert was aware of a CT scan “about four years ago with shows ?? lesion
on the brain but nothing was done about it. Neurologist who saw her is now in prison.”
Id. She also states that Blackert’s pain in her neck was greater than her shoulder pain,
and rated that pain at 6/10. Id. Testing was ordered, including an MRI. Id.

4

On October 8, 2013 Alfonso saw Blackert again. Blackert reported that her pain
levels were “somewhat exacerbated with the barometric pressure changes and recent
sinusitis.” R. at 429.
Blanc saw Blackert again on October 10, 2013. She noted that Blackert was
experiencing pain in her right knee. R. at 374.
Dr. Thimineur saw Blackert on November 5, 2013. Spinal accessory nerve
blocks and trigger point injections were administered in the cervical/shoulder areas. R.
at 434.
Dr. Hong Lin saw Blackert on January 3, 2014, for medication management
related to her complaints of depression and anxiety. He adjusted her dose of Cymbalta
downward, and also prescribed Ativan and Ambien. R. at 485.
Alfonso saw Blackert again on January 7, 2014. Blackert reported that an MRI
had been conducted, and showed new lesions, but was still awaiting “results.” R. at
437.
Dr. Hong Lin saw Blackert again on February 7, 2014. He notes at that time that
Blackert “is coming to terms with her recent diagnosis of MS.” R. at 484.
Alfonso saw Blackert again on March 4, 2014. She notes that Blackert “has
Multiple Sclerosis which she was unaware of” and recommends following up with a
neurologist. R. at 441.
Dr. Hong Lin saw Blackert again on March 14, 2014. His notes state that
Blackert had recently visited her father, who was undergoing treatment for brain cancer,
in Florida. R. at 483. He further noted that Blackert was experiencing “sensory

5

symptoms ‘tingling’ of her thigh and fingers” as a result of her MS, as well as “scattered
focus and concentration.” R. at 482.
PA-C Courtney Howard was seen for routine follow-up on April 28, 2014. Her
notes include statements that Blackert “relates complaint of tingling in her left thigh and
bilateral finger and toe parethesias” as well as “difficulty with her stability with tilting her
head back” while showering. R. at 604. Howard further notes that Blackert’s migraines
“remain uncontrolled despite use of topomax, relpax, and pm percocet.” R. at 605.
Blackert saw Susan York, LMFT, for counseling on August 14, 2014. She notes,
among other things, that “this patient is not able to work anymore. She has attempted
several times but her concentration is no longer sharp enough. The MS is gradually
worsening and it can be seen in her sessions with this therapist.” R. at 522. Notes from
York on September 11, 2014, indicate that Blackert is “doing fairly well.” R. at 524. On
September 12, 2014, in “annual review” notes, York states that she “has observed a
deterioration in patient’s ability to process her thoughts and communicate at a normal
speed.” R. at 527.
Blackert saw Ashley Dizney, APRN, on September 16, 2014. She describes
Blackert as having “chronic intractable migraines” and states that she gets “15 Relpax
tablets/month, and she takes these when migraines are at the worst.” R. at 572.
On September 19, 2014, Blackert saw Dr. David Pitt, a neurologist, for the first
time. He notes that Blackert reported “moderate pathologic fatigue,” and “frequent
falls.” R. at 550. He further noted that she was experiencing headaches about four
times per week and appeared “tangential and had difficulties recalling her past medical
history.” R. at 550–51. He noted moderate impairment of her hand coordination. R. at

6

551. Dr. Pitt also noted that Blackert had “several neurological deficits (cognitive,
numbness in fingers and feet/lower legs, balance problems)” that have “gradually
manifested over the last 1–2 years” with no relapses. R. at 552. Based on the absence
of relapses as well as Blackert’s MRI, Dr. Pitt concluded that “a diagnosis of PP-MS
[Primary-Progressive Multiple Sclerosis] is possible.” Id.
York’s September 26, 2014 treatment notes state that Blackert “is devastated” by
her diagnosis of PP-MS. R. at 530.
Blackert saw Dr. Pitt again on October 31, 2014. He referred to her as a “patient
with likely MS,” and ordered additional testing. He also referred Ms. Blackert to Dr.
Franklin C. Brown, Ph.D., for a neuropsychological examination. However, Dr. Brown
did not complete the examination and concluded that his results were “not valid”
because, although Blackert experienced some “cognitive difficulties,” she also was
“easily overwhelmed” and “emotionally distraught,” and the findings were therefore
“uninterpretable.” R. at 563.
On March 10, 2015, Blackert saw Alfonso again. Notes reflect that Blackert was
taking Ampira for “brain fog” with “minimal effect noted.” R. at 20. Alfonso further
notes: “Exam today shows changes in neurological findings: abnormal tandem walking
and abnormal rapid finger tapping noted.” Id.
On June 9, 2015, Blackert saw Theodora McPherson, PA. McPherson’s notes
reflect that Blackert reported that her “current medication regimen reduces her pain by
80%” and that she “is able to do housework and drive.” R. at 25.
On September 10, 2015, Blackert saw Julie Heher, APRN. She reported
migraines “almost every morning and night” since her potassium levels had fallen out of

7

regulation, but reported a 70% reduction in her pain when she takes replax and
Percocet, which allowed her to “complete her daily activities.” R. at 38.
Between October and December, 2015, Blackert had four more follow up visits,
and reported pain reduction levels of 50%, 70–80%, 40–60%, and 40–70%,
respectively. R. at 41–52.
B.

Procedural History

Blackert applied for disability benefits and supplemental security income on
March 18, 2014. Her applications were initially denied in a decision dated May 16,
2014, R. at 202–11, and she filed a request for reconsideration on May 21, 2014, R. at
212–13. Upon reconsideration, the requested benefits were denied once again on
August 15, 2014. R. at 218–25. Blackert then filed a request for a hearing before an
Administrative Law Judge (“ALJ”) on August 25, 2014. R. at 226. The matter was
assigned to the Office of Disability Adjudication and Review in New Haven, Connecticut,
for hearing, decision, and order.
That hearing took place before ALJ Ronald J. Thomas on May 1, 2015. See R.
at 123–47. ALJ Thomas heard Blackert’s testimony and also heard testimony from a
vocational expert. On August 27, 2015 ALJ Thomas denied Blackert’s claims in their
entirety. ALJ Thomas concluded that Blackert had demonstrated that she had two
severe impairments, specifically multiple sclerosis (“MS”) and depression, and that she
had not met her burden with regard to any other impairments, including migraine
headaches, neck pain, and back pain. R. at 80. ALJ Thomas found that neither
Blackert’s MS nor her depression rendered her unable to work. R. at 83. He concluded
that Blackert could no longer work as a nurse, but that she was still capable of

8

performing “medium work” as defined in title 20, section 404.1567(c) and 416.967(c), of
the Code of Federal Regulations, “except that she can perform only occasional bending,
balancing, twisting, squatting, climbing, crawling and kneeling; and she is limited to
simple, repetitious, routine work.” Id. A finding that Blackert is capable of performing
medium work entails finding that she can “lift[ ] no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds.” 20 CFR 404.1567(c).
On October 29, 2015, Blackert filed an appeal of ALJ Thomas’s decision. R. at
71–73. That appeal was denied by the Social Security Appeals Council on June 1,
2016. R. at 1–4. The decision of the Appeals Council rendered the denial of Blackert’s
claims final and thus appealable to this court.
III.

STANDARD OF REVIEW
Under title 42 section 405(g) of the United States Code, it is not the district

court’s function to determine de novo whether the claimant was disabled. See Schaal v.
Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Instead, the court is limited to two lines of
inquiry: whether the ALJ applied the correct legal standard, and whether the record
contains “substantial evidence” to support his decision. See Rosa v. Callahan, 168 F.3d
72, 77 (2d Cir. 1999). “Substantial evidence” requires “more than a mere scintilla of
evidence. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
IV.

DISCUSSION
Blackert raises four errors: (1) that the ALJ failed to adequately develop the

administrative record, Pl.’s Mem. at 1, (2) that the ALJ’s finding that Blackert’s migraines

9

were not a “severe impairment” was harmful error, id. at 9, (3) that the ALJ failed to
follow the “treating physicians” rule, id. at 15, and (4) that the ALJ’s vocational analysis
was defective, id. at 20. The court addresses each of these arguments in turn.
A.

Adequate Development of the Record

An ALJ in a social security benefits hearing has an affirmative obligation to
develop the record adequately. See Rosa, 168 F.3d at 79. Although this obligation is
heightened where the plaintiff is pro se, see Echevarria v. Secretary of HHS, 685 F.2d
751, 755 (2d Cir. 1982), the “non-adversarial nature” of social security benefits
proceedings dictates that the obligation exists “even when . . . the claimant is
represented by counsel.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (“It is the rule
in our circuit that ‘the ALJ, unlike a judge in a trial, must himself affirmatively develop the
record’ . . . .”) (quoting Echevarria, 685 F.2d at 755).
The expert opinions of a treating physician are of particular importance to a
disability determination. See Hallet v. Astrue, No. 3:11-cv-1181, 2012 WL 4371241, at
*6 (D. Conn. Sept. 24, 2012) (concluding that “[b]ecause the expert opinions of a
treating physician as to the existence of a disability are binding on the factfinder, it is not
sufficient for the ALJ simply to secure raw data from the treating physician” and
remanding for further development of the record); Ayer v. Astrue, No. 2:11-CV-83, 2012
WL 381784, at *3 (D. Vt. Feb. 6, 2012) (remanding to the ALJ “given the ALJ’s failure to
request medical opinions from any of Ayer’s treating providers . . . which resulted in a
substantial gap in the record”).
Here, the record contains no expert opinion from a treating physician about
Blackert’s residual functional capacity (“RFC”). The absence of such evidence was

10

noted by the state agency medical consultants. See R. at 154 (report of medical
consultant Joyce Goldsmith); R. at 183 (report of medical consultant Bich Duong); R. at
169 (report of psychological consultant Kelly Rodgers); R. at 186 (report of review
psychologist Katrin Carlson). ALJ Thomas even commented on the lack of opinion
evidence from a treating physician in his ruling: “Interestingly, her treating neurologist,
Dr. Pitt, is silent on the issue of her ability to work and has not advised her that she
could not or should not work.”1 Id. at 88. Despite this recognition, however, there is no
indication that ALJ Thomas attempted to “fill [the] clear gap[ ] in the administrative
record.” Rosa, 168 F.3d at 79.
As the Commissioner accurately notes, the Second Circuit has held that remand
is not appropriate “solely on the ground that the ALJ failed to request medical opinions
in assessing residual functional capacity.” Tankisi v. Comm’r of Soc. Sec., 521 Fed.
App’x 29, 34 (2d Cir. 2013). However, in so holding the court emphasized the
“voluminous medical record,” which included “an assessment of [the claimant’s]
limitations from a treating physician.” Id.
The Commissioner argues the record in this case is extensive, and therefore the
opinion of treating physicians is unnecessary. To support this assertion, the
Commissioner states that “the ALJ relied on the opinions of no less than four state
Agency medical consultants and notes from Plaintiff’s neurologist, therapist, primary
care physician, and treatment providers at the Comprehensive Pain and Headache

1
To the extent that this language reflects ALJ Thomas’s belief that an absence of treating
physician opinion should be construed against a claimant rather than remedied by the ALJ, that belief is
clearly erroneous. As the Second Circuit has written, the fact that a claimant submits medical evidence
from treating physicians, but not opinion evidence, does not “excuse” an ALJ’s failure to develop the
record, nor does the fact that a claimant is represented by counsel. Tankisi v. Comm’r of Soc. Sec., 521
Fed. App’x 29, 33 n.1 (2d Cir. 2013).

11

Treatment Centers,” as well as Blackert’s “reported activities.” Defendant’s
Memorandum in Support of her Motion for Judgment on the Pleadings (“Def.’s Mem.”)
(Doc. No. 23-1) at 5. Blackert argues, on the other hand, that the record lacks any
meaningful assessment of her physical capacity or any other functional limitations
stemming from her MS and migraine headaches. Plaintiff’s Memorandum in Support of
her Motion to Reverse the Decision of the Commissioner (“Pl.’s Mem.”) (Doc. No. 19-2)
at 2, 8.
The court concludes that the record is not sufficiently extensive to negate the
necessity for the opinions of one or more treating physicians. In particular, the record
lacks substantial evidence that Blackert is capable of medium work. To conclude that
Blackert is capable of doing medium work, ALJ Thomas must rely on substantial
evidence that she can “lift[ ] no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.” 20 CFR 404.1567(c).
Two of the state medical consultants, Dr. Goldsmith and Dr. Duong, concluded
that Blackert could perform medium work. See R. at 154 (opinion of Dr. Goldsmith); R.
at 188 (opinion of Dr. Duong). However, as ALJ Thomas acknowledges, “these
opinions are from non-examining and non-treating expert sources,” which militates
against placing great weight on their conclusions. R. at 89. The conclusions of Dr.
Goldsmith and Dr. Duong were based on treatment notes from the Chronic Pain and
Headache Treatment Center (“CPHTC”), which repeatedly report that Blackert’s
strength, grip, reflexes, and range of motion are in the normal range. See R. at 403–44
(medical records from CPHTC). However, this evidence is insufficient to show that
Blackert can perform medium work, for two reasons.

12

First, it is unreasonable to extrapolate from “normal” evaluation scores that
Blackert, a woman in her fifties with MS and joint pain who weighs one hundred pounds,
can lift fifty pounds and carry twenty-five pounds. The word “normal” is too vague to
bear the weight that the Agency consultants apparently placed upon it. See Selian v.
Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (concluding that the ALJ lacked sufficient
evidence where a finding that the plaintiff could perform “light work” was based largely
on her physician’s vague assessment that she “should be able to lift . . . objects of a
mild degree of weight on an intermittent basis”); see also Brady v. Colvin, 14-CV5773(ADS), 2016 WL 1448644, at *8 (E.D.N.Y. Apr. 12, 2016) (“The use of the terms
‘mild,’ ‘moderate,’ and ‘marked,’ to describe the Plaintiff’s restrictions . . . are the kinds
of vague terms, which courts have found insufficient to support a determination that a
Plaintiff is not disabled under the Act.”). It may be that, had their opinion been elicited,
the practitioners who evaluated Blackert’s strength would have opined that she was
capable of medium work but, in the absence of opinion evidence, the raw data alone
does not suffice to satisfy the “substantial evidence” standard.
ALJ Thomas also had the benefit of treatment notes from Dr. David Pitt, who
examined Blackert in September of 2014, after Dr. Goldsmith and Dr. Duong reached
their conclusions. Dr. Pitt described Blackert’s muscles as “normal with regard to
strength, tone and bulk.” R. at 551. However, like the CPHTC evaluations, describing
strength as “normal” is simply too vague to substantiate a finding that occasionally lifting
fifty pounds and frequently lifting and carrying twenty-five pounds is within Blackert’s
capacity.

13

The second reason that these CPHTC evaluations cannot bear the weight that
has been placed on them is that medium work requires both strength and endurance,
because medium work may require “frequent lifting or carrying of objects weighing up to
25 pounds.” 20 CFR 404.1567(c) (emphasis added). In addition to the inferences that
can be drawn from Blackert’s age and size, her medical records and her hearing
testimony both suggest that frequent lifting and carrying of objects weighing up to
twenty-five pounds would be beyond her exertional capacity. For example, during the
hearing in front of ALJ Thomas, Blackert testified that the heaviest thing she had lifted
“in the last couple of weeks” was a gallon of milk. R. at 136. She testified that she was
taking medication for fatigue, and that she “rest[s] all day pretty much”: “You know, if I–if
I–if I do something like clean out the kitchen sink, I need to rest afterwards.” R. at 136.
Similarly, in his notes from an examination of Blackert on September 19, 2014, Dr. Pitt
states that Blackert reported “moderate pathologic fatigue.” R. at 550. His notes from
an examination on January 23, 2015, list Blackert’s “main problems” as “fatigue,
cognition and balance.” On January 23, Dr. Pitt prescribed Provigil “for [Blackert’s]
fatigue” and Dalfampridine “[t]o address the patient’s muscle fatigue and to improve her
walking.” R. at 560.
As the Commissioner points out, ALJ Thomas also considered Blackert’s
activities in making the RFC finding that he did. Activities that ALJ Thomas notes
include a trip to Florida, going out to dinner, going camping with her boyfriend once,
exercising, and completing chores. R. at 85–88. However, this evidence is of little
probative value without knowing more details about the activities. Did she lift heavy
suitcases while traveling, or chop up firewood while camping? Does her nightly

14

exercise regime involve bench pressing fifty or more pounds? In sum, while these
activities may indicate that Blackert is capable of some degree of physical exertion, they
say almost nothing about her capacity to perform medium work.
In light of the foregoing analysis, the court concludes that the record was not
sufficiently extensive to compensate for the absence of medical opinion evidence from
treating physicians. Indeed, ALJ Thomas did not have the benefit of opinion evidence
from any physician who examined Blackert, much less a treating physician. See Ayer,
2012 WL 381784, at *6 (remanding for development of the record “[b]ecause the ALJ
failed to seek an opinion as to [the plaintiff’s] disability from her treating sources before
relying on the opinions of non-treating, non-examining sources”). This case is therefore
a far cry from the facts in Tankisi, where the absence of medical source statements
from treating physicians did not justify remand because the ALJ had the benefit of a
“quite extensive” record and “an assessment of Tankisi’s limitations from a treating
physician,” as well as evaluations by two consulting physicians, one of whom conducted
“a history of the patient and a full physical examination” and examined Tankisi twice.
Tankisi, 521 Fed. App’x at 34.
For these reasons, the court finds that there is not substantial evidence in the
record supporting the ALJ’s decision that Blackert could perform medium work,
including occasionally lifting fifty pounds and frequently lifting or carrying twenty-five
pounds. On remand, the ALJ should seek opinions from the plaintiff’s treating
physicians, including her neurologist, Dr. Pitt, on this issue.

15

B.

Finding that Blackert’s Migraine Headaches Are not a “Severe
Impairment”

In light of the court’s conclusion that ALJ Thomas failed to adequately develop
the record, the court does not reach the merits of the parties’ arguments with regard to
ALJ Thomas’s finding that Blackert’s migraines are not a “severe impairment.”
However, the court recognizes that the record contains indications that, at least during
some periods of time since Blackert’s alleged onset date of March 21, 2011, her pain
has been adequately managed by medication. See R. at 414 (treatment notes
indicating that Blackert was experiencing “improvement in participation in activities of
daily living on current medication regime” in July, 2012); R. at 418 (treatment notes
stating Blackert’s pain is “manageable”); R. at 425 (treatment notes indicating that
Blackert’s medication is “helping tremendously” in July, 2013).
Nevertheless, on remand ALJ Thomas should consider revisiting some of his
factual findings. For example, ALJ Thomas observed that Blackert “repeatedly rates her
average pain level at ‘2’ on a scale from ‘0’ to ‘10.’” R. at 80. Blackert points out that, in
many of the treatment records where a severity of “2” is noted, the notation is not
accompanied by any explanation of the scale being used, and that the number “2,”
without more context, indicates very little about how severe her headaches were. See
Pl.’s Mem. (Doc. No. 19-2) at 14. On the other hand, both the medical record as a
whole, including other documents from CPHTC which explicitly consider severity on a 1
to 10 scale with 10 being the most severe, see R. at 396–401, as well as common
sense suggest that a “2” likely holds the meaning that ALJ Thomas ascribed to it.
However, the probative value of the severity level of “2” is nevertheless
questionable. Because it appears at the top of twelve consecutive examination records
16

as part of a header section in which the same information is consistently repeated
verbatim, it is at least reasonable to interpret that data as a field that is automatically
populated based on an initial visit rather than information that was updated on each of
the relevant dates.2 The header first appears on October 27, 2011, and is repeated in
treatment notes for twelve consecutive visits. See R. at 403 (notes of October 27,
2011); R. at 406 (notes of January 27, 2012); R. at 409 (notes of April 17, 2012); R. at
412 (notes of July 18, 2012); R. at 415 (notes of October, 16, 2012); R. at 418 (notes of
January 15, 2013); R. at 421 (notes of April 10, 2013); R. at 425 (notes of July 10,
2013); R. at 429 (notes of October 8, 2013); R. at 433 (notes of November 5, 2013); R.
at 437 (notes of January 7, 2014); R. at 441 (notes of March 4, 2014). In contrast, prior
to the first appearance of this header information on October 27, 2011, treatment notes
from CHPTC reflect variations in Blackert’s responses. On February 8, 2011, she rated
her pain as “4–5” out of 10, R. at 396, while on March 31, 2011, and June 3, 2011, she
rated her pain as a 3 out of 10, R. at 398, 400, and on June 29, 2011, she reported that
her pain was a 2 out of 10, R. at 401. In sum, viewing the severity score of “2” in the
context of the medical records as a whole, it is likely that that number reflected
Blackert’s report on one visit, as opposed to a contemporaneous recording of her pain
rating on each successive visit. This rather tedious parsing of the record shows that lay
interpretation of treatment notes is a poor substitute for physician opinion evidence.

2

In full, the header section states: “Chief Complaint: migraine headache and headache; Location:
frontal (left) and nuchal (left); Extension: cervical area (left) and trapezius (left); Quality: aching and
crushing; Associated Symptoms: swelling, photosensitivity, nausea and vomiting during headache;
Alleviated: medication, rest and dark room; Exacerbated: bright lights, loud noise, chewing and stress;
Severity: 2.” R. at 403, 406, 409, 412, 415, 418, 421, 425, 429, 433, 437, 441. See, e.g., R. at 429
(containing both the severity level of “2” as well as Dates of Service notes from October 8, 2013,
indicating that Blackert’s “[p]ain levels have been somewhat exacerbated . . .”).

17

The court further cautions that treatment notes which state that a patient’s
condition is “stable,” on their own, are not probative of a patient’s disability status. In his
ruling, ALJ Thomas repeatedly notes that Blackert’s treatment providers repeatedly
describe her condition as “stable.” R. at 80. Blackert argues that ALJ Thomas “seemed
to draw from this evidence that [Blackert] was benefited by treatment.” Pl.’s Mem. at 12
(quoting Lechner v. Barnhart, 321 F. Supp. 2d 1015, 1029–30 (E.D. Wisc. 2004)). On
the other hand, ALJ Thomas cites the stability of Blackert’s condition in the context of
other treatment notes suggesting that Blackert was responding well to medication, as
well as actively looking for work. R. at 80. It is therefore not clear whether ALJ Thomas
viewed “stable” as a neutral term that connoted something positive only in the context of
other indications that medications were effective in controlling Blackert’s pain, or
whether he interpreted that term to independently connote that she was doing well.
While the first use of the word would be reasonable, a neutral term like “stable” cannot,
on its own, support a finding of no severe impairment. As another court in this district
has recently stated:
[A] physician’s notation that upon examination a patient’s condition is ‘stable’
means that at that time the condition is neither worsening nor improving; it has
been stabilized. This says little if anything about the severity of the patient’s
symptoms, and nothing at all about whether the symptoms or effect of the
condition render the patient disabled.
Thornton v. Acting Comm’r Soc. Sec., No. 3:13-cv-1558(CSH), 2016 WL 525994, at *9
(D. Conn. Feb. 9, 2016). If ALJ Thomas interpreted stability as an inherently positive
state, he should reconsider that assessment on remand.
C.

Application of the Treating Physician Rule

Blackert argues that ALJ Thomas’s analysis fails to give appropriate weight to the
opinions of three treating clinicians, Susan York, Licensed Marital and Family Therapist,
18

Courtney Howard, Certified Physician’s Assistant, and Jane Regan, Registered Nurse.
Pl.’s Mem. at 15–20. Although Blackert concedes that none of these practitioners is an
“acceptable medical source” for the purposes of diagnosing an impairment, she argues
that ALJ Thomas erred in failing to give sufficient weight to these practitioners’ opinions
about the severity of impairments that were diagnosed by physicians. Id. at 16–17. The
Commissioner contends that, although ALJ Thomas accurately noted that none of these
practitioners were an “acceptable medical source,” he “continued to assess and weigh
these opinions by considering the factors listed at 20 C.F.R. §§ 404.1527(c) and
416.27(c).” Def.’s Mem. at 9; see R. at 86–87 (analysis of Susan York’s medical
source statement); R. at 87 (analysis of Courtney Howard’s report); R. at 88 (analysis of
Jane Regan’s report). While the court may not have reached the same conclusion that
ALJ Thomas did with regard to the opinion evidence offered by Howard, York, and
Regan, the court agrees with the Commissioner that ALJ Thomas supplied sufficient
reasons for weighing their evidence as he did.
However, ALJ Thomas’s decisions to discount the opinions of York, Howard, and
Regan were each based in part on what he determined were tensions between their
opinions and the record as a whole. See R. at 87 (concluding that Susan York’s
“opinion of ‘marked’ limitations in getting along with others, traveling independently,
dealing with changes in a work setting, etc. are without any objective support in the
record”); R. at 87–88 (finding “no objective findings on repeated physical exams to
support” Courtney Howard’s opinion that Blackert “cannot perform even sedentary-level
work”); R. at 88 (concluding that Jane Regan’s opinion that Blackert “has ‘marked’
limitations in virtually every area of work-related social and cognitive functioning” is “at

19

odds with the objective treatment evidence”). Because the medical record influenced
ALJ Thomas’s conclusions for each of these three practitioners, when the record is
further developed on remand, ALJ Thomas’s analysis may change. It would therefore
be appropriate for ALJ Thomas to revisit his conclusions with regard to the opinions of
York, Howard, and Regan in light of the full record including opinion evidence from one
or more treating physicians.
D.

Vocational Analysis

During the hearing, a vocational expert testified to the availability of work
according to various levels of exertion. R. at 143–45. Specifically, ALJ Thomas posed
the following hypothetical question to the vocational expert: “[A]ssume an individual of
the claimant’s age, education, and past relevant work experience who is limited to
performing the medium work as defined in the Regulations and has a further restrictions
[sic] of the need for only occasional bending, occasional balancing, twisting, squatting,
climbing, crawling, and kneeling. And secondly, is limited to simple, repetitious, routine
work.” R. at 144. Based on this hypothetical, the vocational expert concluded that
Blackert could perform the work of a janitor, a hand packer, or a laundry worker. R. at
144–45. ALJ Thomas subsequently adopted the vocational expert’s opinion in his ruling
and concluded that “the claimant is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy.” R. at 90–91.
Blackert argues that ALJ Thomas’s vocational analysis was defective, not
because ALJ Thomas’s reliance on the vocational expert was incorrect, but because the
premise for his conclusion––namely that Blackert could do medium work––was not
supported by substantial evidence. Pl.’s Mem. at 21–22.

20

As analyzed in some detail above, the court agrees that the record is thin, to say
the least, with regard to Blackert’s physical exertional capacity. The court therefore
agrees with Blackert that ALJ Thomas lacked sufficient evidence to conclude that
Blackert was capable of medium work and therefore erred in concluding that Blackert
could perform the work recommended by the vocational expert. On remand, the court
recommends that, in his development of the record, ALJ Thomas be mindful that the
record contains very little evidence as to Blackert’s physical exertional capacity.
V.

CONCLUSION
For the foregoing reasons, Blackert’s Motion to Reverse the Decision of the

Commissioner (Doc. No. 19) is GRANTED and the Commissioner’s Motion for
Judgment on the Pleadings (Doc. No. 23) is DENIED. The case is remanded to the
Social Security Administration for further proceedings consistent with this Ruling.
SO ORDERED.
Dated at New Haven, Connecticut this 25th day of July, 2017.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

21