Dunn v. Colvin

Filing 29

Chief Judge Patti B. Saris: ORDER entered ALLOWING 19 Motion for Order Reversing Decision of Commissioner; DENYING 23 Motion for Order Affirming Decision of Commissioner (adminn, )

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________
)
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social )
Security Administration,
)
)
Defendant.
)
______________________________)
TRACIE DUNN,

Civil Action
No. 15-cv-13390

MEMORANDUM AND ORDER
August 19, 2016
Saris, C.J.
INTRODUCTION
Plaintiff Tracie Dunn seeks review of the decision denying
her claim for Social Security benefits, arguing that the
Administrative Law Judge (ALJ) failed to consider properly the
severity of her migraines. The Court ALLOWS Plaintiff’s motion
to remand and reconsider the decision of the Commissioner
(Docket No. 19) and DENIES Defendant’s motion to affirm the
decision of the Commissioner (Docket No. 23).
FACTUAL BACKGROUND
Plaintiff Tracie Dunn applied for both Social Security
Disability and Supplemental Security Income benefits on July 13,

1

2012, alleging she was disabled by severe depression and severe
migraines. In both applications, Dunn asserts that her
disability began on February 1, 2012. Dunn was forty-two years
old when the ALJ denied her application on May 13, 2014. Dunn
worked most recently as a cashier, but in the past has also
served as an assembly worker and an administrative assistant.
Dunn did not graduate from high school, but received her GED.
She was sometimes homeless.
I.

Physical Health Conditions
Plaintiff Dunn’s primary care physician is Dr. Paul George,

M.D., of the Family Care Center (FCC). R. 39. On January 13,
2012, Plaintiff began seeing Dr. George primarily for migraines,
depression, and right shoulder pain. R. 283-86.
A. Migraine Headaches
Plaintiff has a history of chronic migraines, and has
consistently complained of migraine headaches to her treating
physicians, as documented throughout her medical record.
Plaintiff’s initial visit with Dr. George was on January
13, 2012. R. 283-86. During this visit, Plaintiff complained of
headaches that could occur daily and were associated with
nausea. R. 284. The headaches were relieved by Plaintiff going
into a darkened room and placing a damp cloth over her forehead.
Id. She said that medications had not provided much relief,
including Imitrex, Fioricet, and Topamax. Id.
2

On January 27, 2012, Plaintiff had a follow-up visit with
Dr. George regarding her migraines, shoulder pain, and
depression. R. 280-82. Plaintiff reported that despite a
prescription for Imitrex, she had daily migraines. R. 281. Dr.
George prescribed Lamictal for migraine prophylaxis. R. 281-82.
There were no abnormalities present during the brief
neurological physical exam. R. 281.
On June 12, 2012, Dunn had an acute care visit to the FCC
for migraines. R. 269. Dunn had been experiencing a headache for
several days. Id. Dunn stated this headache felt like her
typical migraine, but had lasted longer than usual. Id. Dunn was
nauseous and had vomited due to the migraine. Id. She said her
migraine pain was an eight out of ten. Id. There were no
neurological abnormalities present during the examination. R.
270. Dunn said the migraine was not responding to Imitrex or
cold packs. R. 269. Treatment notes from this visit state that
Plaintiff has a history of migraines. Id.
On June 19, 2012, after hitting her head on a sink,
Plaintiff visited the emergency room at Memorial Hospital of
Rhode Island for a head injury and resulting dizziness. R. 24857. A CT scan of Dunn’s brain conducted that day was negative,
showing no acute findings. R. 248, 255, 288. The neurological
examination was normal. R. 255. Plaintiff’s migraine symptoms
became worse following this accident, but the headaches were
3

relieved by medication. R. 249, 254. Plaintiff also noted her
history of migraines. R. 254. Plaintiff was diagnosed with a
likely concussion and post-concussive syndrome. R. 255. During a
follow-up visit for this injury on June 27, 2012, where
Plaintiff’s chief complaint was dizziness, treatment notes again
acknowledge Plaintiff’s history of migraines. R. 248-50.
On July 20, 2012, during a follow-up visit with Dr. George,
Dunn complained of both migraines and shoulder pain. R. 266-68.
Dunn stated she continued to have migraines. R. 266. She stated
Lamictal was not helping. Id. There were no abnormalities found
during the neurological exam. R. 267.
On July 25, 2012, Dunn had an acute care visit to the FCC
for migraines. R. 263-65. Dunn’s chief complaint was migraines
and that she needed medicine for them. R. 263. Dunn noted to the
treating physician that she was having migraines at least three
times per week. Id. Dunn stated the migraine pain was “like
getting stabbed,” and that she “needs to lay down, cover [her]
face with [a] cold cloth,” and be in darkness. Id. Treatment
notes acknowledge Plaintiff’s history of migraines. R. 264. No
abnormalities were found during a neurological exam. Id.
Plaintiff received a refill of Fioricet, which Plaintiff stated
was working to relieve her headaches. R. 263-65.
On April 29, 2013, Dunn’s chief complaint to Dr. George
involved migraines. R. 333. Dunn stated that during a migraine
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two weeks prior she had seen an aura after vomiting and had
fallen and likely hit her head. Id. No abnormalities were found
upon a neurological exam. R. 334.
During a visit with Dr. George on June 21, 2013, Plaintiff
noted her migraines were worsening with photophobia (discomfort
in the eyes due to light) and phonophobia (aversion to loud
sounds), and she experienced nausea and vomiting from them. R.
328. Dr. George again prescribed Fioricet for the migraines. R.
329-30.
On September 26, 2013, during an urgent care visit due to
an assault, Plaintiff stated she was taking Topamax for
migraines. R. 359, 362. Plaintiff’s neurological examination
during this visit was “unremarkable.” R. 360. Doctors also
performed a CT scan, which was mostly normal. R. 368.
Finally, on February 21, 2014, during a visit to the FCC,
Dunn told Dr. George she was having migraines two or three times
per week. R. 340. Dunn stated that she used to have more
migraines per week, but they had improved. Id. She was
prescribed Fioricet. R. 340-41. Dunn also had success on the
medication Topamax but could not afford this preventive
medication. R. 341. Dr. George planned to put her back on
Topamax once she secured insurance. Id.

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B. Right Shoulder Pain
Plaintiff complains of right shoulder pain throughout the
medical record. See, e.g., R. 266, 273. On January 16, 2012,
doctors took an x-ray and found Dunn’s right shoulder to be
normal. R. 291; see R. 55. On May 31, 2012, Dunn returned to the
FCC for a follow-up visit on her chronic right shoulder pain. R.
272-77. On July 20, 2012, Dr. George wrote that Dunn “continues
to have right shoulder pain.” R. 266. During this visit, Dr.
George noted that Dunn attended physical therapy for this pain,
and there seemed to be some improvement. Id. A week later, an
MRI scan was taken of the right shoulder. R. 287. The MRI found
no rotator cuff tear, but “thickening and tendinopathy of the
supraspinatus and infraspinatus tendons.”1 Id.; see R. 55. On
February 21, 2014, an EMG showed carpal tunnel syndrome in the
right arm. R. 340.
C. Evaluations
Dr. George, Dunn’s primary treating physician, did not
testify at the ALJ hearing, but did complete a Headaches Medical
Source Statement. R. 369-72. In this form, Dr. George indicated
that the intensity of Dunn’s headaches was “moderate – inhibits

Tendinopathy refers to a tendon injury, including inflammation
and microtears. Tendinopathy, WEB MD, http://www.webmd.com/firstaid/tc/tendon-injury-tendinopathy-topic-overview (last updated
June 4, 2015). The supraspinatus and infraspinatus are two of
the four rotator cuff muscles. 43 Am. Jur. 3d Proof of Facts 201
Shoulder Injuries (2016).
1

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but does not wholly prevent usual activity.” R. 369. He stated
Dunn’s headaches occur three to four times per week, and thus
that she would have sixteen to twenty per month. Id. Dr. George
also indicated that Dunn would be precluded from performing
basic work activities during a headache, would need a break
while she had a headache, and would be 25% or more off-task due
to her migraine symptoms. R. 371. However, Dr. George did note
that medication improved Dunn’s headaches. R. 370. Further, Dr.
George stated that Dunn was capable of low-stress work, and that
he and Dunn discussed this possibility. R. 370-71. Dr. George
concluded that Dunn’s headaches would cause her to be absent
more than four days per month from work. R. 371.
Dr. George also completed a Physical Capacity Evaluation.
R. 376. In his evaluation, Dr. George estimated that in an
eight-hour workday, Dunn could sit three to four hours per day,
stand two to three hours per day, walk two to three hours per
day, and sit and/or stand a total of two to three hours per day.
Id. Dr. George also opined that Dunn may never be exposed to
dust, fumes, or gas. Id.
Dr. George also completed a Pain Questionnaire regarding
Dunn’s shoulder and noted Dunn suffered moderately severe pain
due to her shoulder. R. 375. Dr. George concluded that Dunn’s
shoulder pain likely would cause her to be absent more than four
days per month from work. Id. Lastly, Dr. George completed a
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Supplemental Questionnaire as to Residual Functional Capacity,
which indicates psychiatric impairments. R. 373-74. In this
questionnaire, Dr. George noted Dunn suffered from “Severe” and
“Moderately Severe” impairments. Id.
II.

Mental Health Conditions
When Plaintiff applied for benefits, she alleged she was

disabled due to severe migraines as well as severe depression.
On numerous occasions, Plaintiff has complained of depression.
Dr. George has confirmed Plaintiff’s severe depression.
E.g., R. 341, 345. Dunn was referred to Gateway Healthcare for
treatment of depression in July 2012. R. 299-325. Dunn stated
she hoped to work on mental health issues in order to obtain
employment. R. 299. Plaintiff attended two appointments at
Gateway and was then discharged when she did not further contact
Gateway. R. 299-327.
On December 13, 2013, Dr. George noted that Dunn complained
of ongoing panic attacks that occurred a couple of times per
week. R. 347.
On January 24, 2014, the chief complaint by Dunn during her
visit to the FCC was depression. R. 343. Dunn reported she felt
“angry at everything.” Id. Dunn’s general appearance during this
examination was depressed and withdrawn. R. 344.

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III. Consultative Examinations and Assessments
A. Dr. Schwartz
On October 31, 2012, psychologist Dr. Wendy Schwartz,
Ph.D., performed a psychological consultative examination as
arranged by Disability Determination Services (DDS) of the
Massachusetts Rehabilitation Commission. R. 292, 298. Dunn
informed Dr. Schwartz she was applying for disability because of
migraines and shoulder pain. R. 292. Dunn reported having
migraines for the past eleven years as well as shoulder pain. R.
294. Dunn also reported depression that had progressively
worsened over the previous seven months. Id. Dunn denied active
suicidal ideation, but noted symptoms of hopelessness,
helplessness, abnormal sleep, and conflict with others. Id. She
further noted, “I would welcome being gone.” Id.
Dr. Schwartz did not find any significant cognitive
abnormalities. See R. 296. On the Mini-Mental Status Exam, Dunn
scored within normal limits. R. 296. Dunn also received a Global
Assessment of Functioning score of fifty-one.2 See R. 55, 297.

The Global Assessment of Functioning (GAF) scale is used for
“reporting a clinician’s judgment of the individual’s overall
level of functioning and concerns psychological, social, and
occupational functioning.” Grant v. Colvin, No. 13-13102, 2015
WL 4945732, at *1 n.2 (D. Mass. Aug. 20, 2015) (citing Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 32-33 (4th ed., text revision 2000)). “GAF scores in
the 51-60 range indicate ‘moderate’ symptoms or difficulty in
functioning.” Id.
2

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Dr. Schwartz concluded that Dunn presented with symptoms
consistent with Major Depressive Disorder, Panic Disorder with
Agoraphobia, migraines, and shoulder pain. R. 296. She further
noted Dunn had to take breaks due to shoulder pain and
migraines. Id. Dr. Schwartz stated that Dunn has “a consistent
work history and last worked in October 2012[,] leaving mainly
due to her migraines and shoulder pain.” Id. She further
concluded that “[o]ccupationally, [Dunn’s] ability to respond
appropriately to customary work pressures, her colleagues, and
her supervisors appears to be moderately-to-severely impaired.”
R. 297. However, Dr. Schwartz added, Dunn “has maintained
consistent full-time employment as an adult.” Id.
B. Non-Examining Doctors
In November 2012, state agency physician Dr. Edward Hanna
and state agency psychologist Dr. Russell Phillips reviewed
Plaintiff’s records to assess her functional capacity. R. 55-61.
They listed Plaintiff’s impairments as “Migraine[,] Disorders of
Muscle, Ligament and Fascia[,] Affective Disorders[,] and
Anxiety Disorders,” and described Plaintiff’s migraines as a
“non severe” impairment. R. 55. From a mental health standpoint,
Dr. Phillips concluded that Plaintiff could “maintain attention
for two hours at a time and persist at simple tasks over eightand forty-hour periods with normal supervision,” despite her

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allegations of disability “due to depression and migraines.” R.
60.
C. Dr. Gordon
On January 16, 2013, Dr. Clifford Gordon, Ed.D. (Doctor of
Education), reviewed Dunn’s medical evidence of record. Dr.
Gordon determined Dunn’s medical impairments and their severity
for the DDS as part of the reconsideration of Plaintiff’s
application for benefits. R. 74-83. Gordon determined that Dunn
suffered severe impairments of a muscle disorder, affective
disorder, and anxiety disorder. R. 77-78. He concluded Dunn
suffered from migraines, but that they were not a severe
impairment. R. 77.
Gordon also provided an opinion regarding Plaintiff’s
Mental Residual Functional Capacity. R. 74-83. Gordon noted that
Dunn can attend to basic tasks which are simple, routine,
repetitive, and familiar in nature, in two-hour blocks of time.
R. 82. He further opined that Dunn can relate adequately with
coworkers if contact is minimal and superficial in nature. Id.
He stated she would be unable to relate adequately with the
general public. Id. Further, Gordon noted Dunn’s “main
limitations appear to be related to her ongoing irritability but
she is able to manage the superficial interactions of daily
life.” Id.

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D. Dr. Georgy
On January 23, 2013, Dr. Youssef Georgy, M.D., reviewed the
medical evidence of record and issued an opinion regarding
Plaintiff’s Physical Residual Functional Capacity for the DDS
for reconsideration of Plaintiff’s benefits. R. 74-83. Dr.
Georgy noted that Dunn is limited in her use of her right
shoulder. R. 79-80. Dr. Georgy noted that Dunn can perform work
with exertional limitations, including postural limitations and
environmental restrictions. Id.; see R. 23.
E. Dr. Turshen
In May 2013, Dunn had a psychological consultation with Dr.
Turshen, M.D., a provider at Dr. Ong’s clinic at the FCC.
R. 331-32; see R. 328, 334. Dr. Turshen performed a psychiatric
evaluation and offered treatment recommendations. R. 331-32.
Dunn’s chief complaint was ADHD. R. 331. Dunn further reported
chronic depressive symptoms, including stating she had a passive
wish to be dead. Id. Dr. Turshen also noted that Dunn felt
uncomfortable in crowds of more than two or three people. Id.
Dr. Turshen diagnosed the plaintiff primarily with ADHD, but
also with PTSD and depression. R. 332. Dr. Turshen recommended
medication changes, particularly raising Plaintiff’s Celexa
dose. R. 331-32; see R. 328.

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IV.

Hearing Before the ALJ
The administrative hearing was held on April 30, 2014, in

front of ALJ Jason Mastrangelo. R. 27. Plaintiff was represented
by an attorney. R. 27-30.
A. Dunn’s Testimony
Dunn testified at the hearing before the ALJ as follows:
Dunn worked as a cashier for 7-Eleven on a part-time basis
between May 3, 2013, and March 26, 2014, working over thirty
hours in one week only once. R. 34-35. She was fired for
attendance. R. 34.3 She also worked as a cashier about two to
three times per week for Sunoco for two months in 2012. R. 35.
That job ended because her cash drawer was short. Id. Before
2012, she performed administrative data-entry work and worked as
an assembler. R. 36-37, 185.
Dunn stated she suffers from debilitating migraine
headaches three to four times per week, lasting for hours at a
time and sometimes for days. R. 41-42. One of these migraines
lasted over sixty days. R. 44. Dunn testified that she tries to
treat the migraines with “whatever prescription [Dr. George] had
prescribed,” Tylenol, Icy Hot, or a face cloth. R. 42. This has
provided some relief, but her migraines often persisted through
the night. Id.

Plaintiff testified she thought it was for tardiness as she was
late “almost every time.” R. 34.
3

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When asked to what extent her migraines interfered with
work, Dunn testified that the interference was just to the point
of telling people to “shut up” or other outbursts. Id. She did
acknowledge that for the migraine that lasted over sixty days,
she was afraid to take time off work because she needed the
money. R. 44. She testified she was supposed to take Topamax and
Fioricet but she cannot afford to fill her prescriptions and
they had been out for months. R. 45. She added: “Recently, about
twice in the last, I don’t know, six or seven migraines that
I’ve had, they had come to the point where I was seeing the
white light and I passed out—well, thrown up and then passed
out. That’s never happened before, so I think they’re getting
progressively worse.” R. 45.
Dunn suffers from persistent right shoulder and upper
extremity pain. R. 42-44. She stated that an EMG showed carpal
tunnel and bursitis in her right shoulder. R. 38. She has not
found anything to help alleviate this pain. R. 43.
Finally, Dunn suffers from depression. R. 39. Dunn
testified that she did not have a desire to do things anymore.
R. 41. Her depression affects her work and causes her to have
outbursts at customers. R. 39-40. She has had one complaint made
against her, and it was for “swearing at a customer and kicking
him out of the store.” R. 40. She also has some difficulty with

14

concentration and completing tasks, and experiences some
nervousness around people. Id.; R. 44.
At the time of the ALJ hearing, the only medication Dunn
was taking was Celexa for depression. R. 39-40. She testified
that her depression was relieved by Celexa. Id. Plaintiff has
prescriptions for other medications, but was only taking Celexa
at the time of the ALJ hearing due to inability to afford the
other prescriptions. Id. Dunn testified these additional
prescriptions are for Fioricet (for migraines), Atvian (for
anxiety), Ultram (for pain), and Ritalin (for improving
concentration). R. 39-40, 45.
B. The Vocational Expert
The ALJ asked the vocational expert (VE), Albert J.
Sabella, to consider a hypothetical individual of Plaintiff’s
age, education, and work experience with the following
exertional limitations: she is limited to lifting and carrying
twenty pounds occasionally, but ten pounds frequently; she could
sit six hours in an eight-hour workday, and stand and walk six
hours in an eight-hour workday; she would have only occasional
use of the right dominant upper extremity; she could only
occasionally use the right dominant upper extremity to reach at
or above shoulder level; she could frequently climb ramps and
stairs, but could never climb ladders, ropes, or scaffolds; and
she could frequently balance, stop, kneel, and crouch, but could
15

only occasionally crawl. R. 48-49. The ALJ further stated that
this hypothetical individual would have to avoid concentrated
exposure to extreme cold, hazardous machinery, and heights. R.
49. Finally, the VE was asked to consider that this hypothetical
individual would be limited to maintaining attention,
concentration, persistence, and pace sufficient to carry out
simple, routine, and familiar tasks to two-hour periods with
normal work breaks; would be limited to occasional superficial
interaction with coworkers; and, would be unable to interact
appropriately with the public. Id.
The VE testified that such an individual could perform
medical-equipment assembly work, but not data-entry work R. 4950. The VE testified that such an individual could also perform
the requirements of such representative occupations as an
assembler of electrical accessories or inspector of plastic
products. R. 50. The VE additionally noted significant numbers
of these jobs in Rhode Island and nationally. Id. The VE
concluded that the hypothetical “essentially describes work at a
light level, unskilled, working with things and objects,
manufacturing types of work.” Id.
The ALJ then asked the VE to consider if the same
hypothetical individual were unable to maintain attention and
concentration to carry out simple tasks on a routine, consistent
basis; unable to interact appropriately with others in the
16

workplace; and unable to tolerate customary work pressure found
in simple work, whether these limitations would “rule out all
full-time competitive employment.” R. 50. The VE stated that
this hypothetical claimant would be unemployable. Id.
V.

The Decision of the Administrative Law Judge
At step one, the ALJ found that Dunn had “not engaged in

substantial gainful activity since February 1, 2012, the alleged
onset date.” R. 15. At step two, the ALJ found that Dunn had
severe impairments of chronic right shoulder pain, affective
disorder, and anxiety disorder. R. 16. However, the ALJ
concluded that Plaintiff’s migraines were not a severe
impairment. R. 16. At step three, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that
met the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Id.; see 20 C.F.R. § 404.1520.
At step four, the ALJ found that Plaintiff retained the
Residual Functional Capacity (RFC) for a reduced range of the
light exertional level, as long as Plaintiff does not have to
work closely with others nor interact with the general public.
R. 17-23. Specifically, the ALJ found the following nonexertional limitations:
[Dunn] has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that she can occasionally use her
right (dominant) upper extremity to operate hand
controls and to reach at or above shoulder level. She
17

can frequently climb ramps and stairs; never climb
ladders, ropes, or scaffolds; and frequently bend,
stoop, and crouch. She can only occasionally crawl. She
must avoid concentrated exposure to extreme cold,
hazardous machinery, and heights. The claimant can
maintain attention, concentration, persistence and pace
sufficient to carry out simple, routine, and familiar
tasks in two-hour periods with normal work breaks. She
can maintain occasional, superficial interaction with
coworkers. She cannot interact with the general public.
R. 17. The ALJ concluded that “the medical evidence of
record supports a finding that the claimant remains
able to perform essentially simple work with no public
contact at a reduced range of the light exertional
level.” R. 23.
The ALJ pointed out that during “the alleged period of
disability, [Plaintiff] was able to work on a near-full time
basis as a cashier, an occupation that requires frequent use of
her arms.” R. 19. Based on this RFC, the ALJ found that Dunn was
capable of performing past relevant work of a small parts
assembler. Id., see R. 36. However, the ALJ did not take into
account claimant’s migraines in the RFC analysis.
The ALJ added a discussion of step five as an alternate
basis of his decision: “In the alterative, considering the
claimant’s age, education, work experience, and residual
functional capacity, there are other jobs that exist in
significant numbers in the national economy that the claimant
also can perform.” R. 24. Based on the vocational expert’s

18

testimony, he found that she could be an assembler of electrical
accessories and inspector of plastic products. R. 24-25.
Accordingly, the ALJ found Plaintiff was not under a disability
as defined by the Social Security Act, and, thus, not disabled.
R. 25.
VI.

Procedural History
The Social Security Administration (SSA) determined that

Dunn was not disabled, denying Dunn’s application for disability
benefits on November 20, 2012. R. 53-61, 97. Following a written
request for reconsideration made by Dunn on January 2, 2013, the
SSA reconsidered Dunn’s application. R. 74-84, 103-04. On August
23, 2013, the SSA again determined that Dunn was not disabled
and denied Dunn’s claim, confirming the previous determination.
Id.
Plaintiff then sought review of the decision by an ALJ on
October 22, 2013. R. 107-13. The administrative hearing was held
on April 30, 2014, in Providence, Rhode Island, in front of ALJ
Jason Mastrangelo. R. 27. On May 13, 2014, the ALJ issued his
unfavorable decision. R. 10-25. On July 20, 2015, the Appeals
Council denied Dunn’s request for review of the ALJ’s decision.
R. 1-4, 9. Thus, the ALJ’s decision became the final decision of
the Commissioner. Sims v. Apfel, 530 U.S. 103, 106 (2000).

19

DISCUSSION
I.

Standard of Review
This Court may only set aside the decision of an ALJ if the

decision resulted from legal error, or if the ALJ’s factual
findings were not supported by substantial evidence. Nguyen v.
Charter, 172 F.3d 31, 35 (1st Cir. 1999). Thus, this Court does
not make de novo determinations. Lizotte v. Sec’y of Health &
Human Servs., 654 F.2d 127, 128 (1st Cir. 1981); White v.
Astrue, No. 10-10021, 2011 WL 736805, at *5 (D. Mass. Feb. 23,
2011).
Substantial evidence means such “relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65 (1988);
Astralis Condo. Ass’n v. Sec’y, U.S. Dep’t of Hous. & Urban
Dev., 620 F.3d 62, 66 (1st Cir. 2010). This Court must uphold
the ALJ’s determinations as long as they are supported by
substantial evidence, even if the record evidence could support
a different conclusion. Rodriguez Pagan v. Sec’y of Health &
Human Servs., 819 F.2d 1, 3 (1st Cir. 1987); Lizotte, 654 F.2d
at 128. “The ALJ’s findings of fact are conclusive when
supported by substantial evidence.” Nguyen, 172 F.3d at 35. In
determining the quality of the evidence, the Court will examine
the record as a whole. Rohrberg v. Apfel, 26 F. Supp. 2d 303,
306 (D. Mass. 1998).
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II.

Statutory and Regulatory Framework
Under the Social Security Act, a claimant seeking benefits

must prove they are disabled. 42 U.S.C. § 423(d). This means a
claimant must prove they do not have the ability “to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . for a
continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). To meet this definition, a person must have a
“severe impairment[] that makes [them] unable to do . . . past
relevant work . . . or any other substantial gainful work that
exists in the national economy.” 20 C.F.R. § 416.905(a). An
impairment can only be disabling if it “results from anatomical,
physiological or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3).
The Secretary of Health and Human Services has established
a five-step sequential evaluation process for the ALJ to employ
to determine whether a person is disabled. 20 C.F.R. § 404.1520.
The determination may be concluded at any step along the
process. Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001);
20 C.F.R. § 404.1520 (“If we can find that you are disabled or
not disabled at a step, we can make our determination or
decision and we do not go on to the next step.”).

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First, if the claimant is currently engaged in substantial
gainful work activity, then the claimant is automatically
considered not disabled, and the application for disability
benefits is denied. Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir.
2001); 20 C.F.R. § 404.1520. Second, if the claimant does not
have a severe impairment or severe combination of impairments,
the disability claim is denied. Bowen v. Yuckert, 482 U.S. 137,
141 (1987); 20 C.F.R. § 404.1520. If a condition is severe, the
analysis proceeds to the third step: determining whether a
severe impairment is equivalent to one of a number of listed
impairments that the Secretary acknowledges are so severe that
they preclude substantial, gainful activity. Bowen, 482 U.S. at
141; Seavey, 276 F.3d at 5; 20 C.F.R. §§ 404.1520, 416.920. If
the impairment meets one of these listed impairments, the
claimant is presumed to be disabled. Goodermote v. Sec’y of
Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982); 20 C.F.R.
§ 404.1520. If the impairment is not one of or the equivalent to
one of the listed impairments, the evaluation proceeds, and the
ALJ must determine the claimant’s RFC—the most a claimant can do
despite their limitations—based on relevant medical and case
record evidence. 20 C.F.R. §§ 404.1520, 404.1545.

At the fourth

step, the ALJ determines whether the claimant’s RFC prevents her
from performing work she performed in the past. Seavey, 276 F.3d
at 5; Goodermote, 690 F.2d at 6; 20 C.F.R. § 404.1520. If the
22

claimant cannot perform this work, the fifth and final step is
to determine whether the claimant is able to perform other work
in the national economy in view of the claimant’s RFC, age,
education, and work experience. Seavey, 276 F.3d at 5; 20 C.F.R.
§ 404.1520. If the claimant is unable to perform this other
work, the application for benefits is granted. Seavey, 276 F.3d
at 5; 20 C.F.R. §§ 404.1520, 416.920
In the first four steps, the claimant bears the burden of
proof to show she is disabled. Freeman, 274 F.3d at 608;
Rohrberg, 26 F. Supp. 2d at 306. At the fifth step, the burden
shifts to the Commissioner. Goodermote, 690 F.2d at 7.
III. Analysis
The key issue in this case is whether the Administrative
Law Judge failed to properly consider Plaintiff’s migraine
headaches. Plaintiff challenges the ALJ’s determination on two
grounds. First, Plaintiff argues that the ALJ failed to apply a
de minimis standard when determining the severity of Plaintiff’s
migraines in step two of the ALJ’s evaluation process. Second,
Plaintiff contends that the ALJ failed to consider Plaintiff’s
migraines as a non-severe impairment when rendering Plaintiff’s
RFC in step four of the evaluation process.

23

A. ALJ’s Determination That Migraines Were Not Severe at
Step Two
Step two is a de minimis screening device of claims for
benefits, where “a finding of ‘non-severe’ is only to be made
where medical evidence establishes only a light abnormality or
combination of slight abnormalities which would have no more
than a minimal effect on an individual’s ability to
work . . . .” McDonald v. Sec’y of Health & Human Servs., 795
F.2d 1118, 1124-25 (1st Cir. 1986) (internal quotation marks and
citation omitted). Thus, a claim may be denied at step two only
if the claimant’s impairments “do not have more than a minimal
effect on the [claimant’s] physical or mental abilities to
perform basic work activities.” Munoz v. Sec’y of Health & Human
Servs., 788 F.2d 822, 823 (1st Cir. 1986). “[G]reat care should
be exercised in applying the not severe impairment concept.”
Munoz, 788 F.2d at 823 (citing SSR 85-28, 1983-1991 Soc. Sec.
Rep. Serv. 390 (Jan. 1, 1985)).
In the second step of the analysis, the plaintiff bears the
burden to show that a severe impairment, or severe combination
of impairments, exists. Freeman, 274 F.3d at 608. The plaintiff
must demonstrate through objective medical evidence, or other
sources which can reasonably be accepted as consistent with the
objective evidence, including treating or non-treating sources,
that her condition meets the severity standard. 20 C.F.R.

24

§§ 404.1520, 404.1529. The claimant must show she has “an
impairment or combination of impairments which significantly
limits the abilities and aptitudes necessary to do most jobs.”
Bowen, 482 U.S. at 146 (internal quotation marks omitted)
(quoting 20 C.F.R. §§ 404.1520(c), 404.1521(b)). In reviewing
the ALJ’s determination of severity, this Court must affirm the
ALJ’s findings if they are supported by substantial evidence,
even if the record evidence could support a different
conclusion. Rodriguez Pagan, 819 F.2d at 3. “When a disability
claim rests on severe pain that exceeds what can be established
by objective medical findings but is consistent with a diagnosed
medical condition, the ALJ must inquire into several factors.”
Carr v. Astrue, No. 09cv10502, 2010 WL 3895189, at *6 (D. Mass.
Sept. 30, 2010) (citing 20 C.F.R. § 404.1529) (discussing
analysis of a severe impairment at step two); see White, 2011 WL
736805, at *6-7 (applying 20 C.F.R. § 404.1529 to step two).
Here, the ALJ determined that Plaintiff’s right shoulder
pain, affective disorder, and anxiety disorder were severe
“because they impose more than minimal limitations in the
claimant’s ability to perform basic work activities.” R. 16. In
determining that Plaintiff’s migraines were not a severe
impairment, the ALJ concluded that Plaintiff’s “migraine
headaches do not impose more than minimal functional
limitations.” Id. The ALJ explained:
25

In addition to the severe impairments identified above,
at the hearing the claimant testified that she suffers
from debilitating migraine headaches three or four times
per week. She stated that her migraines can last for
hours at time [sic]. The claimant also stated that she
has experienced migraine headaches lasting up to sixty
days at time [sic]. However, she acknowledged that she
did not take time off of work because of these migraines
because she was afraid to be out of work.
The medical evidence of record does contain subjective
complaints of migraine headaches. In particular, the
frequency of the claimant’s symptomatic complaints has
increased since she suffered a head injury in June 2012.
However, a contemporary CT scan was negative and the
claimant’s neurological examinations were normal.
Subsequent
treatment
records
describe
recurrent
complaints of migraines including migraines lasting up
to fifty-four days in a row. However, despite these
reports, the claimant does not present to her treating
physicians with active symptoms of migraine headaches.
The claimant’s neurological examinations remain normal
with intact strength, sensation, gait, and reflexes. The
claimant has reported that use of Floricet [sic] has
relieved her migraines. Therefore, the undersigned
concludes that the claimant’s migraine headaches do not
impose more than minimal functional limitations. They
are not a severe impairment in this case.
Id. (internal citations omitted).
Migraine headaches, either on their own or in combination
with other conditions, have been found to be severe impairments.
See, e.g., Moon v. Colvin, 763 F. 3d 718, 721 (7th Cir. 2014);
Strickland v. Barnhardt, 107 F. App’x 685, 688-89 (7th Cir. Aug.
19, 2004); Brown v. Astrue, No. 09-40211, 2011 WL 3421556, at *4
(D. Mass. Aug. 3, 2011); Carr, 2010 WL 3895189, at *4. In
deciding whether migraines constitute a severe impairment,
courts look to the frequency of the headaches, whether the

26

claimant was able to work, whether the headaches dissipated with
treatment, and whether the claimant had to seek urgent care
because of ongoing headache symptoms. See Andrade v. Colvin, No.
14-12153, 2015 WL 5749446, at *5-6 (D. Mass. Sept. 30, 2015)
(upholding determination of migraines as non-severe where
migraines were largely amenable to treatment and there was no
indication of significant limitation of daily activities); Jorge
v. Colvin, No. 14-cv-11179, 2015 WL 5210519, at *8-9 (D. Mass.
Aug. 17, 2015) (upholding determination of migraines being nonsevere where the plaintiff did not have ER visits or
hospitalizations for migraines nor prescribed medication); Brown
v. Astrue, No. 09-40211, 2011 WL 3421556, at *2, *4 (D. Mass.
Aug. 3, 2011) (migraines found to be severe where migraine
prompted an ER visit, despite radiological imaging being
negative and treatment with medication); Carr, 2010 WL 3895189,
at *2, *4 (ALJ found migraines to be severe where claimant only
had three days in the previous month where she did not
experience a migraine).
Here, Plaintiff emphasizes the Headaches Medical Source
Statement completed by Dr. George, her treating physician, which
indicated she had “moderate” intensity headaches. Although Dr.
George is Plaintiff’s treating physician, and treated her for
migraines, the ALJ assigned “little weight” to Dr. George’s
opinion. R. 22. The ALJ further gave “substantial weight” to the
27

opinions of consulting state doctors Dr. Clifford Gordon and Dr.
Youssef Georgy, though neither examined the claimant. R. 23.
Under 20 C.F.R. § 416.927(c)(1), the ALJ “generally” must
give “more weight” to opinions from examining physicians than to
sources who have not conducted an examination. “In order for
evidence from the treating source to receive controlling
weight,” it must be 1) “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and 2) “not
inconsistent with the other substantial evidence” in the case
record. 20 C.F.R. § 416.927(c)(2)). If one of these elements is
not met, a treating source’s opinion is not given controlling
weight, and the ALJ should determine the amount of weight to
give the opinion by applying the following factors: (1) the
examining relationship; (2) the length, nature, and frequency of
the treatment relationship; (3) whether the opinion is
supported, including by consulting sources; (4) consistency with
the record as a whole; (5) the source’s area of specialization;
and, (6) any other relevant factors like the familiarity of the
source with the case record. 20 C.F.R. § 416.927(c). Unless the
treating source’s opinion is given controlling weight, the ALJ
must explain the weight to be given to the treating and nontreating sources. Id.
The medical record amply documents that Dunn suffered from
migraines. She began treatment on January 13, 2012, and visited
28

a doctor at least ten times suffering from migraines. Dr.
George, Dunn’s primary care physician at the FCC, personally
examined Dunn and noted symptoms of pain, nausea, and vomiting.
He prescribed multiple medications including Imitrex, Fioricet,
and Topamax. Because she lacked insurance, Dunn could not always
afford the preventive medication Topamax. On the Headaches
Medical Source Statement, Dr. George said he treated her for
four years and that she suffered from “moderate” migraines that
inhibited usual activity. R. 369. He reports that she
experienced phonophobia, throbbing pain, inability to
concentrate, mood changes, exhaustion, malaise, impaired sleep,
and avoidance of activity. R. 369. He reported that the
frequency of headaches was three to four per week, and that she
could not perform basic work activities during her headaches but
was capable of low stress work. He said she was likely to be
“off task” 25% of the time while experiencing a migraine at
work. He said that medication made her headaches better.
The report of the treating source was not contradicted by
Dr. Wendy Schwartz, Ph.D., who conducted a consultative
examination. Dr. Schwartz reported that claimant stated she had
an eleven-year history of migraines, and that Plaintiff’s
prescriptions included Topamax and Fioricet. Dr. Schwartz
diagnosed her with major depressive disorder; recurrent,

29

moderate panic disorder with agoraphobia; migraines; and,
shoulder pain.
The ALJ did not give a clear explanation why he gave the
treating physician’s opinion so little weight. It is true that
the treating source was a primary care physician, not a
specialist, but the sources who said the migraines were not
severe did not examine Dunn and did not explain how they came to
that conclusion. There is no evidence they were specialists
either. Indeed, one was a Doctor of Education.
The ALJ gave four reasons for discounting the treating
physician’s opinion. First, the ALJ pointed out that there was
no objective evidence to support Dr. George’s opinion, and
specifically that a CT scan was negative and neurological exams
were normal. However, the ALJ’s reliance on the unremarkable
findings of the CT scan and neurological exams is not justified.
Because migraines are symptom-based, neuroimaging tests do not
confirm a migraine diagnosis, but rather are used to exclude
other causes of headaches (like a tumor). See Moon, 763 F. 3d at
721.4 The government argues, “Critically, however, [P]laintiff
does not point to any objective evidence supporting her

See also Dagny Holle & Mark Oberman, The role of neuroimaging in
the diagnosis of headache disorders, 6 Therapeutic Advances in
Neurological Disorders 370 (2013) (“Usually, neuroimaging is not
required in patients with episodic migraine who present with
typical headache features . . . and normal neurological
examination.”).
4

30

allegations of severe migraine headaches.” Docket No. 24 at 8-9.
The government does not explain what objective evidence would
prove up a migraine. Generally available literature suggests
that migraines are diagnosed based on clinically-reported
symptoms like nausea, aura, and vomiting—all of which existed
here. See Migraine, Stedman’s Medical Dictionary 1118 (27th ed.
2000) (defining migraine as “[a] symptom complex occurring
periodically and characterized by pain in the head (usually
unilateral), vertigo, nausea and vomiting, photophobia, and
scintillating appearance of light”).
Second, the ALJ stated that the claimant did not report to
her treating physician with active symptoms of migraine
headaches. However, that assertion is not supported by the
record. See, e.g., R. 269 (acute visit on June 12, 2012, where
Dunn reported she had been experiencing a headache for several
days, was nauseous and had vomited, and Imitrex wasn’t working);
R. 263 (acute visit on July 25, 2012, for migraines medication,
where Dunn reported her current migraine pain intensity as eight
out of ten with pain “like getting stabbed” and deferred
discussions with treating physician as she could not concentrate
while having her migraine).
Third, the ALJ pointed out that medication like Fioricet
relieved her headaches. “If an impairment can be controlled by
treatment or medication, it cannot be considered disabling.”
31

Martinez-Lopez v. Colvin, 54 F. Supp. 3d 122, 133 (D. Mass.
2014) (finding that because the plaintiff’s arthritis could be
controlled with medication, the plaintiff did not establish that
the impairment interfered more than minimally with the
plaintiff’s ability to perform work); see also Wildman v.
Astrue, 596 F.3d 959, 965 (8th Cir. 2010) (concluding that
flares of pain were precipitated by noncompliance with
prescribed diet and medications); 20 C.F.R. §§ 404.1530(b),
416.930(b) (“If you do not follow the prescribed treatment
without a good reason, we will not find you disabled.”). Several
courts have held that migraines are not severe impairments if
prescription medications can manage the pain. See Andrade, 2015
WL 5749446, at *5-6 (upholding ALJ’s determination of migraine
headaches not constituting a severe impairment because migraines
largely managed with prescription medicine and there was no
indication the headaches caused significant limitations in daily
activities); White, 2011 WL 736805, at *6-7 (upholding ALJ’s
decision that headaches were not severe where the medical
records documenting migraines were limited, treating physician
did not give an opinion of the migraine severity, and medication
reduced migraine severity); Kanash v. Astrue, No. 06-11766, 2008
WL 794575, at *8 (D. Mass. March 25, 2008) (upholding ALJ’s
determination that headaches were not severe where they were

32

controlled with medication and treating physician repeatedly
stated the plaintiff could perform light work).
While the opinion of the treating physician supports the
ALJ’s determination that medication improves Dunn’s migraine
symptoms, the ALJ gave little weight to the treating physician’s
additional conclusions that her migraine symptoms were moderate
and they inhibited, even if they did not preclude, work
activity. Significantly, he ignored the medical records which
showed the medication did not always work. R. 266, 269, 281,
284. Moreover, in light of her lack of insurance, claimant
testified she could not always afford Topamax, the preventive
medication. This testimony was reflected in the medical record.
R. 340-41. Thus, Plaintiff was not someone who failed to take
her prescriptions without good reason.
Finally, the ALJ has substantial evidence to support his
finding that the claimant did not take time off from work due to
the migraines. In his opinion, the ALJ emphasizes she was able
to work near-full time as a cashier. At the hearing, Dunn
explained she was afraid to take time off because she needed the
money. The treating physician stated she needed breaks from work
when she had migraines, and while experiencing migraines was
generally precluded from performing basic work activities.
R. 370-71.

33

Understandably, migraines pose a difficult challenge
because the diagnosis is based largely on symptoms reported by a
claimant, not objective evidence. However, this Court finds the
ALJ’s decision to give little weight to the treating physician’s
opinion that the impairment was significant was in error in
light of the length, nature, and frequency of the treating
relationship, the consistency of his opinion with the medical
records, the factual errors underpinning the ALJ’s analysis, and
the lack of analysis of the non-examining physicians.
B. ALJ’s Determination Not to Include Impairments from
Migraines in Step Four
Plaintiff also argues that, even if the migraines were
properly considered non-severe, the ALJ erred by not considering
Plaintiff’s migraines in rendering her RFC at step four, as is
required by Social Security Ruling 96-8p. The defendant contends
that even if Plaintiff’s migraines were considered severe, any
error would be harmless as the ALJ considered all of Plaintiff’s
impairments and their functional effects in rendering the RFC.
Social Security Ruling 96-8p states, “In assessing RFC, the
adjudicator must consider limitations and restrictions imposed
by all of an individual’s impairments, even those that are not
‘severe.’ While a ‘not severe’ impairment(s) standing alone may
not significantly limit an individual’s ability to do basic work
activities, it may—when considered with limitations or

34

restrictions due to other impairments—be critical to the outcome
of a claim.”

SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996).

“Careful consideration must be given to any available
information about symptoms because subjective descriptions may
indicate more severe limitations or restrictions than can be
shown by objective medical evidence alone.” Id. Further, the RFC
“must include a discussion of why reported symptom-related
functional limitations and restrictions can or cannot reasonably
be accepted as consistent with the medical and other evidence.”
Id. at *7.
Further, SSA regulations and case law mandate that the ALJ
consider the combined effect of all of claimant’s impairments at
each step of the sequential analysis. McDonald, 795 F.2d at
1124; 20 C.F.R. § 404.1520(g). The RFC must “contain a thorough
discussion and analysis of the objective medical and other
evidence[.]” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996).
Here, in the analysis determining Dunn’s RFC, the ALJ did
not expressly discuss Dunn’s migraine symptoms. See R. 17-23. In
making the RFC finding, the ALJ stated boilerplate that he
“considered all symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective
medical evidence and other evidence . . . .” R. 17. However, the
discussion regarding Plaintiff’s RFC only addresses Plaintiff’s
right arm pain, depression, anxiety, and cognitive functioning.
35

R. 18-23. The ALJ does not discuss Dunn’s subjective complaints
of pain and other symptoms from the migraines. R. 18; Avery v.
Sec’y of Health & Human Servs., 797 F.2d 19, 22, 28-29 (1st Cir.
1986) (providing factors that must be considered when evaluating
credibility of subjective complaints of pain and noting that
“denial decisions must state why subjective testimony of
limitation of function because of pain is not supported by the
evidence”). There is no indication the ALJ considered the
cumulative effect of Plaintiff’s severe and non-severe
impairments, including the migraines, and thus the ALJ decision
was not in accordance with SSR 96-8p. See Andrade, 2015 WL
5947446, at *6 (holding even where the ALJ found the migraines
were non-severe at step 2, the ALJ had the “obligation” to
consider the symptoms of the migraine headaches in connection
with the assessment of the plaintiff’s RFC). The case is
remanded for analysis of the evidence related to Plaintiff’s
migraine headaches at both steps two and four.
ORDER
For the reasons stated above, Plaintiff’s motion to remand
(Docket No. 19) is ALLOWED and Defendant’s motion to affirm
(Docket No. 23) is DENIED.
/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

36