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Hofer v. Commissioner of Social Security

United States District Court, D. New Jersey

March 5, 2019

BERNADETTE MARY HOFER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          THOMAS J. GIORDANO, JR., ESQ. DISABILITY JUSTICE ATTORNEY FOR PLAINTIFF

          EVELYN ROSE MARIE PROTANO SPECIAL ASSISTANT U.S. ATTORNEY ATTORNEY FOR DEFENDANT

          OPINION

          HONORABLE JEROME B. SIMANDLE 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 244-46.) 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 98-109.) On December 8, 2017, the Appeals Counsel denied Plaintiff's request for review. (R. at 1-6.) This appeal timely follows.

         B. Personal and Medical History [1]

         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.)

         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 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 464-65), 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, ...


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