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Hale v. Berryhill

United States District Court, W.D. Wisconsin

September 21, 2017

MICHAEL HALE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          WILLIAM M. CONLEY District Judge

         Pursuant to 42 U.S.C. § 405(g), plaintiff Michael Hale seeks judicial review of a final decision of defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, which denied her application for Social Security Disability Insurance Benefits and Supplemental Security Income. The court held a hearing on Hale's appeal at which the parties appeared by counsel. Plaintiff raises several challenges. Because the court finds that the ALJ failed to give sufficient weight to Hale's treating physician Dr. Voelker and provide an adequate explanation for discounting Hale's credibility, particularly as to his claimed limitations with respect to migraine headaches, the court will reverse the Commissioner's determination and remand for further proceedings consistent with this opinion.


         A. Overview of Claimant

         Hale was 26-years-old at the alleged onset date, 27 at the time he applied for benefit, and 33 at the time of the second hearing. (This case was previously remanded due to the ALJ's failure to adequately account for Hale's limitations in concentration, persistence and pace in creating an RFC.) He has an eleventh grade high school education, is able to communicate in English, and has past work experience as a stocker, an unskilled job performed at the medium exertional level. Hale testified at his hearing that he last worked in March of 2009 as a stocker at Wal-Mart, and that he was fired because he took too long of a break. He claims disability based on a multitude of physical and mental health impairments, but primarily focuses on migraines and anxiety/agoraphobia.

         B. Medical Record

         i. Medical Records Predating Alleged On-set Date

         Plaintiff's medical record is extensive, with notes dating back to 2003, six years prior to his alleged on-set date of March 26, 2009. Those records reveal repeat emergency room and urgent care visits for headaches, including with symptoms of photo and phonophobia, as well as October 2008 appointments with his treating physician Thomas A. Voelker, M.D., for migraine headaches. (AR 306-27 (Oct. 2003 ER visit); AR 421-29 (Dec. 2008 to Mar. 2009 urgent care visits); AR 400-08 (Oct. 2008 Voelker visit).) At that time, Voelker, noted that Hale was “missing a few days of work every month, gets migraines 3 or 5 times a month.” (AR 401.)

         In August 2006, Hale saw Richard Hadfield, M.S. one time for an evaluation of his mental health. Hadfield diagnosed Hale with a mood disorder, anxiety disorder, personality disorder, migraine headaches, poor work history, financial stressor, conflictual relationship with stepfather, and gave him a GAF score[1] at time of discharge of 53. (AR 382.) The medical record also contains an August 2007 disability report by Rachel, Pallen, Ph.D. Pallen diagnosed him with “panic disorder with agoraphobia; depressive disorder, NSO; hip and knee problems” and listed Hale's GAF score as 75. She also described his prognosis as somewhat poor because it “does not appear that Michael has motivation to engage in employment, ” but found that he “has the ability to understand, remember and carry out simple instructions, ” and that his “ability to maintain concentration and attention” and “maintain adequate work pace” are all “good.” (AR 388-94.)

         ii. Medical Records Post-dating Alleged On-Set Date to Date Last Insured

         Hale's date last insured was March 30, 2012, though this appeal also seeks review of the denial of his supplemental insurance benefits. On April 24, 2009, Hale again saw his long-time treating physician Dr. Voelker. In that medical record, Voelker described Hale's history of headaches for years, noted that he experiences them about every day, that they are usually fairly severe, focused on the left side, though notes that Hale denies any numbness or tingling, has no clear aura, and that there are no associated neurologic symptoms. Voelker also noted that Hale wanted to avoid narcotics. Voelker prescribed Diclofenac and told Hale to call in the next week or so if not improving, and indicated that he would order an x-ray and a possible MRI scan. (AR 396-97; AR 409-412.) Voelker further noted that Hale did not have insurance at that time, but is applying for SSI disability. (AR 410.)

         In November 2009, Hale had an intake evaluation with Barbara Schvetz, MSW. Hale indicated that he is applying for disability and that it would be helpful for him to have a current diagnosis. For diagnostic impression, Schvetz noted that Hale suffered from a panic disorder with agoraphobia, social phobia, ADHA, mood disorder, migraines and described his GAF as 51, and that he had a GAF of 49-53 in the past year. (AR 530-33.) The record also contains a December 2009 treatment note from Schvetz noting a panic attack at Wal-Mart and depression. (AR 534.)

         In addition to those notes, the medical record also contains urgent care and ER visits for recurrent back pain, though a 2009 CT scan of his spine was normal. (AR 413-20, 479-93, 529, 586-602.)

         iii. Medical Records Post-Dating Date Last Insured

         In May 2012, Hale had several appointments with Dr. Voelker, for treatment of migraines, agoraphobia, anxiety and depression. Dr. Voelker changed several of his prescriptions and noted a plan for Hale to see a psychiatrist. (AR 774, 778.) A May 2012 x-rays of cervical spine were unremarkable. (AR 797-800.)

         In October 2012, Hale saw Timothy P. Wogahn, a new treating physician for follow-up care of his chronic back pain. (AR 770.) A November 2012 MRI showed no abnormalities: “unremarkable exam of thoracic spine, with exception of incidental note made of Schmorl's nodes.” (AR 791-92.) Hale saw Wogahn against in February 2013 to establish care and refill prescriptions. (AR 765-69.) In July 2013, Dr. Wogahn treated Hale for a sunburn, chronic back pain, depression, anxiety and migraines. Dr. Wogahn increased his medication for depression, changed his migraines medication, referred him to physical therapy, and advised him to follow-up in six to eight weeks. (AR 763-64.) Hale saw Dr. Wogahn again in September 2014 visit to review prescriptions. At that time, Hale noted that he did not believe Effexor was working for his depression. During that appointment, he also complained of back and right knee pain and migraines. Dr. Wogahn refilled prescriptions, and indicated a plan to wean Hale off Effexor. (AR 755-57.)

         iv. Reports of Consulting and Examining Medical Providers

         Several medical providers have reviewed Hale's medical record and/or examined Hale for purposes of his SSI application.

         In a September 8, 2009, record review report, Evelyn F. Adamo, Ph.D. reviewed medical records from June and July 2009. She checked the boxes for “no medically determinable impairment” and “coexisting nonmental impairment(s) that requires referral to another medical specialty.” Adamo also noted a lack of mental health ...

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