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Blackert v. Berryhill

United States District Court, D. Connecticut

July 25, 2017

LISA M. BLACKERT, Plaintiff,


          Janet C. Hall United States District Judge.


         Plaintiff Lisa M. Blackert (“Blackert”) brings this action under title 42 section 405(g) of the United States Code, appealing from the final determination of the Commissioner of Social Security (“the Commissioner”), denying her disability insurance benefits and supplemental security income. Motion to Reverse the Decision of Commissioner (“Pl.’s Mot.”) (Doc. No. 19). The Commissioner cross-moves for an order affirming that decision. Defendant’s Motion for Judgment on the Pleadings (“Def.’s Mot.”) (Doc. No. 23).

         For the reasons set forth below, the Motion to Reverse the Decision of the Commissioner is GRANTED, and the Motion for Judgment on the Pleadings (Doc. No. 23) is DENIED. The case is remanded to the ALJ for proceedings consistent with this decision.


         A. Facts

         Lisa M. Blackert was born in 1958, and was 52 years and 9 months old at the age of her alleged onset date of March 21, 2011. Plaintiff’s Statement of Facts (Doc. No. 19-1) at 2. She is a licensed practical nurse, but has not worked since March of 2011, with the brief exception of a nursing position she held in 2013, from which she was terminated two weeks into a three week orientation program because she “wasn’t catching on fast enough and [she] was too slow.” Certified Transcript of Record (“R.”) at 129.

         The medical record begins in February of 2011. On February 8, 2011, Blackert was seen by David Bounds, APRN, and Dr. Mark Thimineur for “chronic migraines, knee, multifocal pain.” R. at 396. Treatment notes from that visit reflect that Blackert’s “pain medications are helping to some extent, but she is still having more headaches than she would like.” Id. She was diagnosed with “Chronic headache pain secondary to migraines, neuralgias.” R. at 397.

         Blackert was seen by Dr. Thimineur again on April 19, 2011, for bilateral “knee pain due to ACL repair and chronic migraine headaches.” R. at 399. Dr. Thimineur noted that Blackert was taking Relpax and Topamax for her headaches, both of which “help her,” and was also taking Percocet for her knee pain. Id.

         Blackert saw Courtney Howard, Certified Physician’s Assistant, for July 25, 2011, for hypertension, migraine headaches, and depression. Howard’s notes reflect that Blackert’s headaches were “controlled with pm Relpax” and that she was “doing ok on Effexor 75mg” with respect to her depression.

         On October 27, 2011, Blackert saw Heather Alfonso, Advanced Practice Registered Nurse, for pain resulting from migraine headache and headache. R. at 403– 04. Blackert’s headaches were described as having an “aching and crushing” quality, with associated symptoms of “swelling, photosensitivity, nausea and vomiting during headache.” R. at 403. Treatment notes reflect that Blackert’s headaches are alleviated by “medication, rest and dark room” and exacerbated by “bright lights, loud noise, chewing and stress.” Id. The severity of Blackert’s headaches was characterized as “2” and the narrative section notes that Blackert was “[d]oing well with current medication regime.” Id. Results of physical and neurological exams were all in the normal range.

         On January 27, 2012, Alfonso saw Blackert again and noted that her “[p]ain levels, functionality have remained stable without any major changes since the last visit.” R. at 406.

         On April 17, 2012, Alfonso saw Blackert again. R. at 409. Alfonso’s treatment notes reflect that Blackert’s younger sister died of a heart attack since her last visit, and that she was very upset as a result. Id. Alfonso states that Blackert “has a hard time even getting out of her house to run errands.” Id.

         On July 18, 2012, Alfonso saw Blackert again. Alfonso’s notes state that “Patient reports >50% relief of pain, improvement in participation in activities of daily living on current medication regimen, Patient does not report any side effects or adverse reactions from prescribed opioid medications and No aberrant behaviors related to prescribed opioids identified during this visit.” R. at 414.

         On January 15, 2013 Alfonso saw Blackert again, and noted that Blackert “will potentially be starting a new position in assistive living.” R. at 418. Alfonso further notes that Blackert’s “pain levels are stable” and that her pain is “manageable.” R. at 419.

         On April 10, 2013, Alfonso saw Blackert again. Alfonso states that Blackert’s “pain levels have been stable with Percocet,” and that Cymbalta (an antidepressant) has been “helping significantly.” R. at 421.

         On July 10, 2013, Alfonso saw Blackert again, and noted that Blackert reported both that her “current pain medication regimen are ‘helping tremendously’” and that Blackert “noticed an increase in her migraines (15 or more episodes) with nausea over the past 2 months.” R. at 425. In this visit, Alfonso and Blackert discussed the possibility of Botox injections for her migraines, and Blackert “verbalize[d] interest” in that treatment. Id. Alfonso’s notes describe Blackert’s migraines as occurring “on greater than 15 days per month for at least 3 months” with “at least five full filling [sic] criteria for migraine without aura, headaches on average last more than 4 hours.” Id. Alfonso describes the pain as “moderate or severe in intensity” with “nausea and/or vomiting, photophobia and phonophobia.” R. at 426. Alfonso further notes that Blackert “complains of pain and muscle tenderness of her neck and shoulders.” Id. During this visit, Alfonso describes administration of “Spinal accessory nerve block” and “Occipital nerve block” for “pain relief” and “Trigger point injection” for “pain control.” R. at 426.

         On August 20, 2013, Blackert saw APRN Patricia Blanc at Cornell Scott Hill Health Center. During that visit, Blackert reported “sparks out of peripheral of right eye x weeks” and “Constant migraine headaches x 30 years.” R. at 385. Blanc’s notes reflect that Blackert was aware of a CT scan “about four years ago with shows ?? lesion on the brain but nothing was done about it. Neurologist who saw her is now in prison.” Id. She also states that Blackert’s pain in her neck was greater than her shoulder pain, and rated that pain at 6/10. Id. Testing was ordered, including an MRI. Id.

         On October 8, 2013 Alfonso saw Blackert again. Blackert reported that her pain levels were “somewhat exacerbated with the barometric pressure changes and recent sinusitis.” R. at 429.

         Blanc saw Blackert again on October 10, 2013. She noted that Blackert was experiencing pain in her right knee. R. at 374.

         Dr. Thimineur saw Blackert on November 5, 2013. Spinal accessory nerve blocks and trigger point injections were administered in the cervical/shoulder areas. R. at 434.

         Dr. Hong Lin saw Blackert on January 3, 2014, for medication management related to her complaints of depression and anxiety. He adjusted her dose of Cymbalta downward, and also prescribed Ativan and Ambien. R. at 485.

         Alfonso saw Blackert again on January 7, 2014. Blackert reported that an MRI had been conducted, and showed new lesions, but was still awaiting “results.” R. at 437.

         Dr. Hong Lin saw Blackert again on February 7, 2014. He notes at that time that Blackert “is coming to terms with her ...

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