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Tann v. Berryhill

United States District Court, D. New Hampshire

April 10, 2017

Kimberly Tann
Nancy A. Berryhill, Acting Commissioner of Social Security Opinion No. 2017 DNH 070

          Penelope E. Groneck, Esq. Terry L. Ollila, Esq.


          Joseph DiClerico, Jr. United States District Judge.

         Kimberly Tann seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of Social Security, denying her application for disability insurance benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 423 and § 1382. Tann contends that the Administrative Law Judge (“ALJ”) erred in assessing the record evidence. The Acting Commissioner moves to affirm. Tann filed a response to the Acting Commissioner's motion.

         Standard of Review

         In reviewing the final decision of the Acting Commissioner in a social security case, the court “is limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ's factual findings as long as they are supported by substantial evidence. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Castillo Condo. Ass'n v. U.S. Dep't of Housing & Urban Dev., 821 F.3d 92, 97 (1st Cir. 2016) (internal quotation marks omitted). “[S]ubstantial evidence does not mean either uncontradicted evidence or overwhelming evidence” but instead can be satisfied “even if the record arguably could justify a different conclusion.” Id. (internal quotation marks omitted).


         Tann applied for disability insurance benefits and supplemental security income on October 29, 2013, alleging that she had been disabled since April 20, 2012, due to chronic migraines, fibromyalgia, depression, anxiety, herniated disc, acid reflux, and insomnia. After her applications were denied, Tann amended her onset date to August 27, 2013, when she was twenty-six years old. She previously worked as an assembler, cleaner, as a personal care service provider, and in maintenance.

         Tann's medical records pertinent to her onset date begin on August 14, 2013. At that appointment, Dr. George W. Lovett, a dermatologist, noted that Tann was in no distress, was alert and oriented, and had appropriate mood and affect. Dr. Lovett also noted edema in Tann's lower legs and that she was obese. A week later, Tann had injections in her cervical spine.

         Dr. Natacha Sochat completed a physical residual functional capacity assessment on January 14, 2014. Dr. Sochat found that Tann could occasionally lift and carry up to twenty pounds, frequently lift and carry up to ten pounds, and sit and stand or walk for six hours in an eight hour day. Tann could occasionally do postural activities such as climbing, balancing, stooping, crouching, kneeling, and crawling.

         At the end of January, 2014, Dr. Sharon Ferguson noted that Tann's anxiety and depression were controlled with medication and her depression had improved. Dr. Ferguson urged Tann to restart counseling. Dr. Ferguson found that Tann was not in acute distress, did not have edema, had appropriate affect, and did not appear to be anxious or depressed.

         On February 12, 2014, Sherie Friedrich, Psy.D., examined Tann to evaluate her psychological condition. Dr. Friedrich made observations about Tann's appearance and affect and recorded Tann's reports about her feelings and daily activities. Tann was alert and oriented during the examination. Dr. Friedrich noted Tann's report that she was unable to adequately complete chores when she was experiencing a lot of pain. In a work setting, however, Tann could interact appropriately, understand work procedures, follow simple instructions, maintain concentration and complete tasks, tolerate stress that is common in a workplace, and make simple decisions. Dr. Friedrich also stated that Tann would benefit from psychotherapy to address her “maladaptive behaviors.”

         On March 4, 2014, Patricia Salt, Ph.D., a state agency psychologist, completed a Psychiatric Review Technique based on a review of Tann's records. Dr. Salt concluded that Tann did not have a severe mental impairment.

         Tann was seen on June 5, 2014, for a follow up on her chronic headaches by Nurse Finley-Bruno. The treatment notes include Tann's reported symptoms of her headaches, which were moderate but could become severe with pressure and pounding that caused nausea. Tann further reported that she would need to lie down in a dark room when experiencing a severe headache and that the headache could last up to forty-eight hours.

         Tann explained that she had stopped taking her migraine headache medicine when she discovered that she was pregnant and had been having headaches for two months. She also said that she had broken up with her boyfriend because of disputes over custody of their son and his abusive behavior, which caused her to have stress. Despite having a headache during the examination with pain at the level of 6 out of 10, the provider reported that Tann was in no acute distress and that her head and neck range of motion was normal. Tann stated that triggers for her headaches were stress, chemical smells, fluorescent lights, and heavy perfume.

         Tann reported headaches on September 29, 2014, with a pain level of 6.5 out of 10. On January 20, 2015, Tann saw Nurse Finley-Bruno and reported a headache pain level of seven out of ten. Finley-Bruno, however, found that Tann was not in acute distress, her mood and affect were normal, she was alert and oriented, and was not ataxic.[1] Nurse Finley-Bruno indicated that Tann intended to take her headache medication again post-pregnancy. At an appointment on March 11, 2015, Tann again reported a headache pain level of 7 out of 10, but Nurse Finley-Bruno noted that Tann was in no acute distress, her mood and affect were normal, she was alert and oriented, and she was not ataxic.

         On April 3, 2015, Dr. Ferguson increased Tann's medication to better control her anxiety and depression. He also recommended that she increase exercise. Tann was in no acute distress and all of Dr. Ferguson's observations provided normal results. Nurse Finley-Bruno also found normal results on June 18, 2015, despite Tann's report of daily stress and headaches and a pain rating of 7 out of 10. Tann was given a shot in her cervical spine and continued on her other mediations.

         Dr. Thomas Ward completed a Headache Residual Functional Capacity Questionnaire on September 15, 2015. Dr. Ward stated that he had treated Tann intermittently since December 31, 2012, and noted that she had had chronic and constant migraine headaches. He wrote that Tann's headaches were “mild/moderate/to severe pressure/pounding/sharp with nausea/vomiting and light/sound sensitivity.” He wrote that triggers were bright light, stress, moving around, and noise.

         Dr. Ward said that Tann had a good response with Botox treatment but still had daily headaches that would preclude even basic work activities. He also said that she would need daily unscheduled breaks from work because of headaches and thought she would miss more than four days of work each month when she was completely disabled due to headaches.

         A hearing was held before an ALJ on September 22, 2015. Tann was twenty-nine years old at the time of the hearing. She was ...

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