HOFER v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Jerome B. Simandle on 3/5/2019. (rss, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BERNADETTE MARY HOFER,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 18-1746 (JBS)

COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.

APPEARANCES:
Thomas J. Giordano, Jr., Esq.
DISABILITY JUSTICE
One Commerce Square
2005 Market Street, Suite 350
Philadelphia, PA 19103
Attorney for Plaintiff
Evelyn Rose Marie Protano
Special Assistant U.S. Attorney
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 Spring Garden Street, 6th Floor
Philadelphia, PA 19123
Attorney for Defendant
SIMANDLE, District Judge:
I.

INTRODUCTION
This matter comes before the Court pursuant to 42 U.S.C §

405(g) for review of the final decision of the Commissioner of the
Social Security Administration (“SSA”) denying the application of
Plaintiff Bernadette Mary Hofer (“Plaintiff”) for Social Security
Disability Insurance (“SSDI”) benefits under Title II of the Social
Security Act, 42 U.S.C. § 401 et seq. Plaintiff, who suffers from

neck pain, insomnia, cervical and lumbar spinal injuries with pain,
and migraines, was denied benefits for the period of disability
from June 24, 2013, the alleged onset date of disability, through
August 26, 2016, the date the Administrative Law Judge (“ALJ”)
issued a written decision.
In the pending appeal, Plaintiff contends that the ALJ’s
decision must be reversed and remanded for one sole reason: the
ALJ erred in evaluating the severity of Plaintiff’s migraine
headaches at step two. For the reasons that follow, the Court finds
that substantial evidence supports the ALJ’s decision to treat
Plaintiff’s migraines as “non-severe” and will affirm the ALJ’s
decision.
II.

BACKGROUND
A.

Procedural History

Plaintiff filed an application for SSDI benefits on October
10, 2013, alleging a disability as of June 24, 2013. (R. at 24446.) The SSA denied Plaintiff’s claim on January 9, 2014. (R. at
182-86.) Plaintiff’s claim was again denied upon reconsideration
on March 8, 2014. (R. at 188-93.) A hearing was held before ALJ
Karen Shelton on April 21, 2016. (R. at 114-60.) ALJ Shelton issued
an opinion on September 21, 2016, denying benefits. (R. at 98109.) On December 8, 2017, the Appeals Counsel denied Plaintiff’s
request for review. (R. at 1-6.) This appeal timely follows.

2

B.

Personal and Medical History1

Plaintiff was 58 years old on the alleged disability onset
date and 61 years old at the time of her hearing before the ALJ.
(R. at 116, 119-20, 244-46.) She graduated from high school and
completed one year of college. (R. at 121.) For nearly thirty
years, Plaintiff worked as a school operations officer for the
Philadelphia School District, where she “did banking, [] took care
of all the bills, ordered all supplies[,] [d]id shipping, did
receiving, and also took care of substitute teachers.” (R. at 122.)
In September 2011, Plaintiff suffered a slip-and-fall at
work, which resulted in injuries including, as relevant to this
appeal, headaches and migraines. (R. at 128-29.) She returned to
work later that day and subsequently put in a claim for worker’s
compensation. (R. at 129-30.) Plaintiff continued to work for
almost two more years with some modifications: for example, she
had students help her with lifting and received assistance from a
non-teaching assistant to carry change to the bank for her. (R. at
134-35.) Plaintiff retired in June 2013 – about six months before
qualifying for her full pension – because, after her contract
changed and she was asked to take on additional responsibilities,
she “just couldn’t do it anymore.” (R. at 121-22, 130, 136, 139.)

1

Because Plaintiff’s arguments relate solely to her migraine
headaches, the Court primarily recounts the medical records and
opinion evidence pertaining to such complaints and treatment.
3

Plaintiff

treated

with

primary

care

physician

Dr.

John

Butler, M.D., for various conditions, including her complaints of
migraine headaches, several times after the slip-and-fall. (R.
399-411, 477-79.) On April 10, 2013, shortly before Plaintiff’s
alleged disability onset date, Plaintiff reported she had just
switched to Topamax in January 2013 for migraines, but that she
was not experiencing headaches at this time, and Dr. Butler
assessed her as having “[m]igraine, unspecified with intractable
migraine, so stated, without mention of status migrainosus.” (R.
at 398-99.) At a follow-up in November 2013, Dr. Butler noted that
Plaintiff was on prescription medication for migraines per her
neurologist. (R. at 395.) On February 17, 2014, Dr. Butler noted
that Plaintiff’s migraines appeared “stable.” (R. at 392.) On May
14, 2014, Dr. Butler noted there was “no active issue” with
Plaintiff’s migraines (R. at 389) and, on November 9, 2015, Dr.
Butler

reported

that

Plaintiff

had

“no

recent

issues”

with

migraines. (R. at 477.)
Plaintiff also treated with Dr. Russel I. Abrams, M.D., a
neurologist, on eight occasions between February 4, 2014 and
January 26, 2016. (R. at 454, 457, 462, 464, 466, 468, 471, 474.)
At their initial neurological consolation on February 4, 2014, Dr.
Abrams noted the following:
[A]t the present time, [Plaintiff] continues to have
headaches, which are approximately every other day and
constant. She previously had migraine headaches and
these headaches are distinctly different from her
4

migraine headaches. She has neck pain with numbness and
tingling in her arms, mid back pain and low back pain
and numbness and tingling in her left leg.
(R. at 466.) Plaintiff’s initial neurological examination showed
no abnormalities and Dr. Abrams diagnosed, among other things,
post-traumatic headaches, which he attributed to the September
2011 incident. (R. at 467.) When she returned for follow-up visits
in March and June 2014, Dr. Abrams noted that Plaintiff was having
“headaches less often,” that her “headaches are better,” and that
“[t]he nortriptyline 50 mg has helped her headaches” (R. at 46465),

although

in

November

2014,

Plaintiff

reported

headaches

averaging two to three times per week. (R. at 457.) Plaintiff
subsequently reported her headaches were “doing better” and that
nortriptyline helped. (R. at 470, 472, 475.) On January 26, 2016,
Dr. Abrams reported that nortriptyline “helps her headaches” and
that,

while

her

headaches

“have

continued,”

they

“are

doing

better.” (R. at 468.)
Between 2013 and February 2016, Plaintiff treated with Pain
Specialists, PA, including Dr. Morris Antebi, M.D., and Beth
Butterworth, R.N., on several occasions, reported that she had “no
headaches.” (R. at 412, 415, 418, 421, 426, 428, 484, 487, 489.)
C.

State Agency Consultants

Dr.

Isabella

M.

Rampello,

M.D.,

a

State

agency

medical

consultant, reviewed Plaintiff’s medical records and assessed her
physical

residual

functional

capacity.

5

(R.

at

165-69.)

Dr.

Rampello opined that Plaintiff could occasionally lift and/or
carry 20 pounds, frequently lift and/or carry 10 pounds, stand
and/or walk (with normal breaks) for about six hours in an eighthour workday, could sit (with normal breaks) for about six hours
in an eight-hour workday, could frequently balance, occasionally
climb ramps or stairs, stoop, kneel, crouch, and crawl, could never
climb ladders, ropes, or scaffolds, and was limited in reaching
overhead. (R. at 166-67.) Dr. Mary McLarnon, M.D., another State
agency medical consultant, reviewed Plaintiff’s medical records
and

concurred

with

Dr.

Rampello’s

opinion

as

to

Plaintiff’s

physical residual functional capacity. (R. at 174-77.)
D.

Plaintiff’s Statements and Activities

In an Adult Function Report dated November 26, 2013, Plaintiff
indicated that she was limited in lifting, squatting, walking, and
sitting, and that she could only walk for a half mile before
needing to wait for her pain to subside. (R. at 281-82.) She
mentions only neck, back, and knee pain (id.), and did not mention
any limitations due to migraines or headaches in this Report. (R.
at 277-84.)
During a hearing held by the ALJ on April 21, 2016, Plaintiff
testified that she was unable to work after the alleged onset
disability date because of pain in her back, neck, and knee. (R.
at 140.) She did not mention migraines or headaches as a reason
for her inability to work. (Id.) After Plaintiff testified at

6

length about her impairments (R. at 140-53), the ALJ asked if there
was “[a]nything else we haven’t talked about that’s keeping you
from working?” (R. at 154.) Plaintiff said, “No.” (Id.)
Regarding her daily activities, Plaintiff explained that, on
a typical day, she would eat, do dishes, try to walk for about 15
minutes,

lie

down,

and

watch

television.

(R.

at

151,

277.)

According to Plaintiff, she was able to take care of herself,
prepare simple meals, do light cleaning twice per week for half an
hour, and do laundry twice per week for an hour. (R. at 148, 15152, 279.) She shops for groceries once or twice per month for about
an hour and half, can drive a car alone, and handles her own
finances. (R at 152, 280.) Plaintiff’s hobbies include reading,
watching television, and going to the gym and exercising, although
she planned to stop attending the gym due to pain. (R. at 149-51.)
She indicated she stopped going to the gym or exercising because
of back and neck pain. (R. at 281.)
E.

Vocational Expert Testimony

During Plaintiff’s hearing in front of the ALJ, the ALJ also
heard testimony from Louis Szollosy, a vocational expert. (R. at
155-59.) Based on Plaintiff’s testimony, the vocational expert
described Plaintiff’s past work as a school secretary (DOT 201.362022), which is classified as a sedentary and skilled position at
the SVP-5 level. (R. at 156-57.) The vocational expert opined that
a person with Plaintiff’s RFC could perform this job as generally

7

performed in the national economy, but not as Plaintiff had
actually performed her past work. (R. at 158.)
F.

ALJ Decision

In a written decision dated August 26, 2016, the ALJ found
that Plaintiff was not disabled within the meaning of the Social
Security

Act

at

any

time

between

the

alleged

onset

date

of

disability and the date of the ALJ’s decision because, consistent
with Plaintiff’s age, education, work experience, and RFC, she
could perform her past work as a school secretary. (R. at 107-08.)
At the first stage of the five-step sequential evaluation
process,

the

ALJ

determined

that

Plaintiff

had

engaged

in

substantial gainful activity between June 2013 and September 2013,
having briefly returned to work during this time, but that her
financial records confirmed no earnings after September 2013. (R.
at 100.) Accordingly, the ALJ concluded that Plaintiff had not
engaged in substantial activity since September 2013. (Id.)
Next, at step two, the ALJ determined that Plaintiff had the
following “severe” impairments: degenerative disc disease of the
cervical spine and carpal tunnel syndrome. (Id.) The ALJ found
Plaintiff’s alleged osteoarthritis, obstructive sleep apnea, and
insomnia to be “non-severe” because “these conditions are being
managed medically, and should be amendable to proper control by
adherence
compliance”

to

recommended

and

“no

medical

aggressive

8

management

treatment

was

and

medication

recommended

or

anticipated for these conditions.” (R. at 101.) The ALJ also found
that Plaintiff’s migraines were “non-severe” (id.), as discussed
in Section IV.B., infra.
At step three, the ALJ concluded that none of Plaintiff’s
impairments or combination of impairments met or medically equaled
the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1, including those set forth in Listings
1.04, 1.08, or 11.01. (Id.)
Between

steps

three

and

four,

the

ALJ

determined

that

Plaintiff possessed the RFC to perform “sedentary work,” as defined
in C.F.R. § 404.1567(a), except that:
[She] needs an option to sit for five minutes after half
an hour of standing and[/]or walking, [and] stand for
five minutes after half an hour of sitting. Further, she
can occasionally climb ramps [and] stairs, she cannot
climb ladders, ropes or scaffolds, she can occasionally
reach overhead, she can frequently balance, occasionally
stoop, kneel, crouch and crawl, and she can frequently
handle and finger.
(R. at 102.)
In

determining

Plaintiff’s

RFC,

the

ALJ

considered

“all

symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and
other evidence,” and “also considered opinion evidence.” (Id.)
Although
reasonably

the
be

ALJ

found

expected

that
to

Plaintiff’s

cause

the

impairments

alleged

“could

symptoms,”

she

concluded that Plaintiff’s statements “concerning the intensity,
persistence and limiting effects of these symptoms are not entirely
9

credible for the reasons explained in this decision.” (R. at 103.)
In doing so, the ALJ analyzed the medical evidence in the record
with respect to each of Plaintiff’s impairments, as well as the
opinions of various treating physicians and State agency medical
consultants. (R. at 102-07.)
Based

on

Plaintiff’s

RFC

and

the

vocational

expert’s

testimony from the April 2016 hearing, the ALJ found, at step four,
that Plaintiff was able to perform her past relevant work as a
school secretary. (R. at 107-08.) Accordingly, the ALJ found that
Plaintiff was not under a disability, as defined in the Social
Security Act, from June 24, 2013 through the date of the ALJ’s
decision. (R. at 108.)
III. STANDARD OF REVIEW
This Court reviews the Commissioner's decision pursuant to 42
U.S.C.

§

405(g).

Commissioner’s
Commissioner’s

The

Court’s

decision,
factual

review

and

the

findings

is

deferential

Court

where

they

to

the

must

uphold

the

are

supported

by

“substantial evidence.” 42 U.S.C. § 405(g); see also Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Cunningham v. Comm’r of
Soc. Sec., 507 F. App’x 111, 114 (3d Cir. 2012). Substantial
evidence is defined as “more than a mere scintilla,” meaning “such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 400
(1971); see also Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292

10

(3d Cir. 2012) (using the same language as Richardson). Therefore,
if

the

ALJ’s

findings

of

fact

are

supported

by

substantial

evidence, those findings bind the reviewing court, whether or not
it would have made the same determination. Fargnoli, 247 F.3d at
38. The Court may not weigh the evidence or substitute its own
conclusions for those of the ALJ. Chandler v. Comm’r of Soc. Sec.,
667 F.3d 356, 359 (3d Cir. 2011). Remand is not required where it
would not affect the outcome of the case. Rutherford v. Barnhart,
399 F.3d 546, 553 (3d Cir. 2005).
IV.

DISCUSSION
A.
In

Legal Standard for Determination of Disability
order

disability

to

establish

insurance

a

benefits,

disability
a

claimant

for

the

must

purpose

demonstrate

of
a

“medically determinable basis for an impairment that prevents him
from engaging in any ‘substantial gainful activity’ for a statutory
twelve-month period.” Plummer v. Apfel, 186 F.3d 422, 426 (3d Cir.
1999); 42 U.S.C. § 423(d)(1). A claimant lacks the ability to
engage in any substantial activity “only if his physical or mental
impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.”
Plummer, 186 F.3d at 427–428; 42 U.S.C. § 423(d)(2)(A).

11

The Commissioner reviews claims of disability in accordance
with the sequential five-step process set forth in 20 C.F.R. §
404.1520. In step one, the Commissioner determines whether the
claimant currently engages in “substantial gainful activity.” 20
C.F.R.

§

1520(b).

Present

engagement

in

substantial

activity

precludes an award of disability benefits. See Bowen v. Yuckert,
482

U.S.

137,

140

(1987).

In

step

two,

the

claimant

must

demonstrate that the claimant suffers from a “severe impairment.”
20

C.F.R.

§

1520(c).

Impairments

lacking

sufficient

severity

render the claimant ineligible for disability benefits.

See

Plummer, 186 F.3d at 428. Step three requires the Commissioner to
compare medical evidence of the claimant’s impairment(s) to the
list of impairments presumptively severe enough to preclude any
gainful activity. 20 C.F.R. § 1520(d). If a claimant does not
suffer from a listed impairment or its equivalent, the analysis
proceeds to steps four and five. Plummer, 186 F.3d at 428. Between
steps three and four, the ALJ determines the claimant’s RFC. 20
C.F.R. § 404.1545. Step four requires the ALJ to consider whether,
based on his or her RFC, the claimant retains the ability to
perform past relevant work. 20 C.F.R. § 1520(e). If the claimant’s
impairments render the claimant unable to return to the claimant’s
prior occupation, at step five the ALJ will consider whether the
claimant possesses the capability to perform other work existing
in

significant

numbers

in

the
12

national

economy,

given

the

claimant’s residual functional capacity, age, education, and work
experience. 20 C.F.R. §§ 1520(g), 404.1560(c).
B.

Substantial evidence supports the ALJ’s treatment of
Plaintiff’s migraines

Plaintiff argues that the ALJ erred in his treatment of
Plaintiff’s migraines by finding them “non-severe” at step two,
and also by failing to include any limitations related to this
impairment in formulating Plaintiff’s RFC between steps three and
four. (Pl.’s Br. at 5-8.) Specifically, Plaintiff argues that the
ALJ improperly ignored Dr. Abram’s treating notes. (Id. at 6-7.)
To the contrary, the Court finds that the ALJ considered all of
the relevant medical evidence, including Dr. Abram’s treating
notes, and, in any event, substantial evidence supports the ALJ’s
treatment of Plaintiff’s migraines.
At step two of the sequential elevation process, the ALJ must
“determine
determinable

whether

an

physical

individual
or mental

has

a

severe

impairment or

medically

combination

of

impairments that has lasted or can be expected to last for a
continuous period of at least 12 months or end in death.” SSR 963p. For an adult, “[a] severe impairment is one that affects an
individual’s ability to perform basic work-related activities.”
Id. “Since it is apparent that the ALJ cannot reject evidence for
no reason or for the wrong reason, an explanation from the ALJ of
the reason why probative evidence has been rejected is required so
that a reviewing court can determine whether the reasons for
13

rejection were improper.” Cotter v. Harris, 642 F.2d 700, 706-07
(3d Cir. 1981) (internal citation omitted).
Even

if

the

ALJ

properly

determines

that

a

claimant’s

impairments are non-severe, however, a finding of non-severity
does not eliminate those impairments from consideration of his or
her overall ability to perform past work. Indeed, between steps
three and four, the ALJ is required to assess all of the claimant’s
impairments - even ones that are not “severe” - in combination,
when

making

the

404.1545(a)(2) (“We

RFC
will

determination. See 20
consider

all

of

C.F.R.

your

§

medically

determinable impairments of which we are aware, including your
medically

determinable

explained

in §§

impairments

that

404.1520(c), 404.1521,

are

not

‘severe,’

and 404.1523,

when

as
we

assess your residual functional capacity.”). SSR 96–8p is clear
about what the ALJ must consider:
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 restrictions due to other
impairments—be critical to the outcome of a claim. For
example, in combination with limitations imposed by an
individual’s other impairments, the limitations due to
such a “not severe” impairment may prevent an individual
from performing past relevant work or may narrow the
range of other work that the individual may still be
able to do.

14

SSR 96–8p (emphasis added); see also Soboleski v. Comm’r of Soc.
Sec., 2015 WL 6175904, at *2 (D.N.J. Oct. 20, 2015) (explaining
that a finding of non-severity “does not obviate the need for a
separate analysis of how Plaintiff’s impairment affects her RFC”).
The

ALJ

must

therefore

consider

all

relevant

evidence

when

determining an individual’s RFC. See, e.g., Fargnoli v. Massanari,
247 F.3d 34, 41 (3d Cir. 2001).
Here, the ALJ recognized that Plaintiff was diagnosed with
and treated for migraine headaches but determined that Plaintiff’s
migraines were “non-severe.” (R. at 101.) After considering the
relevant medical records, the ALJ found that Plaintiff’s migraines
caused no more than a “minimal” effect on her ability to meet the
basic demands of work activity because, among other reasons,
Plaintiff’s migraines “are being managed medically, and should be
amenable to proper control by adherence to recommended medical
management and medication compliance.” (Id.) In support of this
finding, the ALJ explicitly referenced the treating notes of Drs.
Butler and Abrams (id.) (citing R. 451, 464-65, 468, 471, 474),
which as described in Section II.B, supra, indicate that, after
Plaintiff began treatment with Dr. Abrams in early 2014, her
headaches occurred less often, were generally “better,” and that
nortriptyline helped. The ALJ then specifically cited Dr. Butler’s
February 17, 2014 treatment note, which indicated Plaintiff’s
migraines were “stable.” (Id.) (citing R. at 392.) Finally, the
15

ALJ summarized Dr. Abram’s treating records later in the decision.
(R. at 106.)
The record indicates that, between February 2014 and January
2016, Plaintiff sought treatment for migraine headaches from Drs.
Butler and Adams. The ALJ fully accounted for the treatment notes
of both doctors before determining that Plaintiff’s migraines were
“non-severe.”

Importantly,

Plaintiff

did

not

mention

any

limitations due to headaches or migraines in her November 26, 2013
Adult Function Report (R. at 277-83), and she did not mention
headaches or migraines as a reason for her inability to work at
the April 21, 2016 hearing before the ALJ. (R. at 140.) Simply,
Plaintiff points to no medical record or opinion evidence relating
to her migraines that the ALJ overlooked or failed to account for
at step two. Accordingly, and for the reasons described above, the
Court

finds

that

substantial

evidence

supports

the

ALJ’s

determination that Plaintiff’s migraines were “non-severe.”
V.

CONCLUSION
For

the

foregoing

reasons,

the

ALJ’s

decision

affirmed. An accompanying order will be entered.

March 5, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

16

will

be