United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION FOR ORDER REVERSING
THE DECISION OF THE COMMISSIONER, OR IN THE ALTERNATIVE,
MOTION FOR REMAND FOR A REHEARING, AND ON DEFENDANT'S
MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
Glazer Margolis United States Magistrate Judge.
action, filed under ' 205(g) of the Social Security Act,
42 U.S.C. §§ 405(g) and 1383(c)(3), as amended,
seeks review of a final decision by the Commissioner of
Social Security [“SSA”] denying plaintiff
Supplemental Security Income benefits [“SSI”].
26, 2013, plaintiff applied for SSI benefits claiming that she
has been disabled since May 21, 2009 due to vertigo.
(Certified Transcript of Administrative Proceedings, dated
April 8, 2017 [“Tr.”] 413-20, 431 (listing severe
vertigo, depression and anxiety); see Tr. 38
(“Q[:] Is vertigo the only reason you're asking for
Disability Benefits? A[:] Yes.”)). The Commissioner
denied plaintiff's application initially and upon
reconsideration. (Tr. 306-25). On or about April 3, 2014,
plaintiff requested a hearing before an Administrative Law
Judge [“ALJ”](Tr. 326; see Tr. 327-44),
and on May 14, 2015, plaintiff and Mark Riccio, a vocational
expert, testified at a hearing before ALJ Leonard J.
Cooperman. (Tr. 33-68; see Tr. 347-65, 372-78).
Plaintiff has been represented by counsel at the
administrative level and on this appeal. (See Tr.
290-91). In a decision dated June 22, 2015, ALJ Cooperman
denied plaintiff's request for benefits. (Tr. 16-28). On
August 10, 2015, plaintiff filed a request for review of the
ALJ's decision (Tr. 14-15), and on December 12, 2016, the
Appeals Council filed its notice denying plaintiff's
request for review, thereby rendering the ALJ's decision
the final decision of the Commissioner. (Tr. 1-3;
see Tr. 4-11).
February 13, 2017, plaintiff commenced this current action
(Dkt. #1), and on May 1, 2017, defendant filed her answer and
a copy of the Certified Administrative Transcript, dated
April 8, 2017. (Dkt. #12). On the same day, the parties
consented to this Magistrate Judge's jurisdiction and the
case was transferred accordingly. (Dkt. #13). On August 7,
2017, plaintiff filed her Motion to Reverse, or in the
alternative, Motion to Remand for a Rehearing (Dkt. #17;
see Dkts. ##15-16), attached to which is
plaintiff's brief in support and a Joint Stipulation of
Facts. On October 5, 2017, defendant filed her Motion to
Affirm, with brief in support. (Dkt. #18). On October 20,
2017, plaintiff filed her reply brief. (Dkt. #19).
reasons stated below, plaintiff's Motion for Order to
Reverse the Decision of the Commissioner, or in the
alternative, Motion for Remand for a Rehearing (Dkt. #17) is
denied, and defendant's Motion to Affirm the
Decision of the Commissioner (Dkt. #18) is granted.
PLAINTIFF'S ACTIVITIES OF DAILY LIVING
was born in 1967 and is fifty years old. (Tr. 43, 413). At
the time of her hearing, she was living alone in an apartment
(Tr. 43, 524), and she was volunteering two hours a week at a
soup kitchen near her residence, where she takes attendance
and wraps utensils. (Tr. 43-44, 48).
hearing before ALJ Cooperman, plaintiff testified that she
filed a new application for benefits because her vertigo
symptoms “have basically gotten a bit worse.”
(Tr. 37; see Tr. 461). According to plaintiff, her
episodes of vertigo occur more frequently - three to four
times a day, with some days “much worse than
others.” (Tr. 38, 49). They occur episodically and they
last for seconds. (Tr. 49). When the attacks occur, plaintiff
feels dizzy and everything around her spins, which affects
her balance. (Tr. 50; see Tr. 51-52). Additionally,
she develops a rapid heartbeat, she sweats, and she feels
“very shaky, weak and very tired.” (Tr. 50). A
“severe attack” can cause “after effects
[that] can last hours if not up to a couple [of] days.”
(Id.; see also Tr. 51). Her vertigo is
triggered by lifting her head, turning side to side, bending,
and lifting. (Tr. 49). Plaintiff testified that the only
reason she is seeking disability benefits in this underlying
application is because of her vertigo. (Tr.
testified that in a typical day, she cares for her dog, does
dishes, takes care of household chores, and makes simple
meals when she is “capable” of doing so. (Tr. 48,
524-25, 527, 553, 556; see also Tr. 441 (cares for
two cats), 443-44). However, “[s]ome days[, she]
feel[s] too lightheaded, too dizzy and too weak” for
her usual activities, so she just rests. (Tr. 48; see
also Tr. 561-62). She lays down two or three times
during the day (Tr. 49), and she has trouble falling asleep.
(Tr. 554; see also Tr. 442). She reads, watches
television, and uses the computer. (Tr. 528, 557; see
also Tr. 445). Plaintiff drives to the soup kitchen
where she volunteers, and drives “[t]wo, maybe
three” times a week, but does not drive distances
longer than three miles. (Tr. 44-46). She drives herself, and
sometimes a friend, to medical appointments, and to go food
shopping. (See Tr. 441, 444). Plaintiff testified
that she is able to hear other drivers, and she can hear
sounds on the road (Tr. 45), and that she does not
“step foot in [her] car” on days when she does
not feel well. (Tr. 54; see also Tr. 444, 446, 527).
She acknowledged that she never knows when the attacks will
come on (Tr. 54; see also Tr. 562), and she
testified that she gets a “few seconds” warning
prior to getting a full-fledged vertigo attack. (Tr. 56).
However, she also reported that “even sitting[, ]
vertigo happens at any time without warning.”
(See Tr. 445; see also Tr. 446).
takes or has taken Citalopram for anxiety, Lisinopril for
high blood pressure, and Meclizine and Trazodone for vertigo,
as well as Proventil, Pulmicort and Advair for asthma. (Tr.
433, 494, 526, 555). Plaintiff reported that she has anxiety
and panic disorder, and as a result, she does not handle
stress well. (Tr. 530, 559; see also Tr. 447).
completed high school (Tr. 431, 515), and has worked as an
“order selector” in a warehouse, a dishwasher and
bartender, and a deli clerk. (Tr. 432; see also Tr.
46-47, 449-54, 490, 504-07, 515, 534-39, 543-44). Plaintiff
stopped working on May 21, 2010 (Tr. 432), but started to
take time off from work as of January 1, 2009. (Tr. 439,
473). At her hearing, the vocational expert testified that
plaintiff's past work is considered light work, with
general interaction with the public. (Tr. 63). When asked if
a person with limitations of avoiding unprotected heights and
climbing could perform plaintiff's past work, the
vocational expert testified that such a person could not
perform plaintiff's past work but could work as a ticket
seller, parking lot attendant, and laundry sorter. (Tr.
63-64). However, if such a person was absent three or more
days a month, such person would be precluded from all work.
PLAINTIFF'S MEDICAL RECORDS
application for benefits at issue on this appeal, plaintiff
has alleged that she is disabled as of May 21,
2009; accordingly, the Court will address
plaintiff's medical history from that time frame forward,
focusing on the relevant period at issue in this case, which
is from July 11, 2013, the date of plaintiff's
application for SSI, to June 22, 2015, the date of ALJ
Cooperman's decision. (See Tr. 19-28).
history of dizziness dates back to February 5, 2009, when she
was seen at Generations Family Health Center
[“Generations”] for a sinus infection, cough and
dizziness. (Tr. 588). She was seen again for the same or
similar symptoms on February 13 and 17, 2009, and March 3,
2009. (Tr. 585-87). On March 25, 2009, plaintiff was seen by
Dr. Christopher Charon for positional vertigo without ocular
findings on the Dix-Hallpike test, but with “dramatic
emotional responses to each position in the Dix-Hallpike and
Epley maneuver[.]” (Tr. 706-09). She had no hearing
loss based on the audiogram. (Tr. 708). Plaintiff returned to
Dr. Charon on April 1, 2009; she reported that her positional
vertigo was improving but she could not lay on her right side
due to spinning, and that she had minimal improvement with
Meclizine. (Tr. 704-05). Plaintiff also reported that she
“[f]requently [has to] ask others to repeat themselves,
” as both of her ears feel “full, ” and she
has constant tinnitus in both ears. (Tr. 704). Dr. Charon
noted that plaintiff had done some exercises at home and her
vertigo diminished. (Tr. 705). The next day, plaintiff was
seen at Generations for postural vertigo, neck pain, and
depression. (Tr. 584).
April 8, 2009 through July 8, 2009, plaintiff received
rehabilitation therapy for neck pain and vertigo at Day
Kimball Hospital Rehabilitation Services. (Tr. 615-33).
Plaintiff was seen at St. Luke's Family Practice
[“St. Luke's”] on June 11, 2009 for
complaints of vertigo when she bent down or lay flat in bed,
and she complained of significant vertigo when lying on her
right side. (Tr. 639).
4, 2009, plaintiff returned to Generations with complaints of
continued vertigo and neck pain. (Tr. 583). Twenty-two days
later, plaintiff was seen at St. Luke's by Dr. Daniel
O'Neill for complaints of neck pain. (Tr. 640).
18, 2009, Dr. Hellen Kim, a neurologist, diagnosed plaintiff
with persistent vertigo with questionable cervicogenic
etiology. (Tr. 691, 794). Plaintiff underwent a brain MRI on
June 25, 2009 which revealed “[b]orderline increased
signal intensity at the callosal septal interface;”
it was noted that plaintiff “should be further
evaluated clinically as well as [undergo a] follow-up MRI
examination to exclude possibility of early MS.” (Tr.
689).Five days later, Dr. O'Neill signed a
form stating that plaintiff is disabled and unable to work
from May 26 to June 30, 2009 due to an “abnormal MRI
being worked up by neurology[.]” (Tr. 798).
October 14, 2009, Dr. Kim opined that plaintiff's vertigo
is “likely” related to alcohol and tobacco use
with dehydration “as the exacerbator.” (Tr. 688,
793). On November 11 and December 16, 2009, plaintiff's
vertigo was stable but she continued to complain of neck
pain, for which she was referred for physical therapy. (Tr.
January 27, 2010, plaintiff was evaluated by Dr. Kim for neck
pain and tail bone pain; she was advised to continue therapy
and start lidocaine injections (Tr. 686), which she received
on February 1 and 4, 2010. (Tr. 685). On February 19, 2010,
plaintiff was seen at St. Luke's for vertigo and chronic
dizziness. (Tr. 637). Medical notes from St. Luke's on
April 16, 2010 reflect that plaintiff's vertigo had
improved, and it is noted that her “vertigo is possibly
related to anxiety disorder[.]” (Tr. 636).
April 22, 2010, plaintiff underwent a polysomnogram for
excessive daytime sleepiness, snoring and obstructive sleep
apnea. (Tr. 589-90, 682-83, 800-01). Plaintiff was diagnosed
with “[s]imple [s]noring[, ]” as well as
“[s]leep [o]nset and maintenance [i]nsomnia[, ]”
and she was advised to consult a sleep specialist. (Tr. 590,
16, 2010, plaintiff was seen at the emergency room at Day
Kimball Hospital for sudden onset dizziness that involved
room spinning as well as vertigo, and swelling in her right
leg. (Tr. 596; see Tr. 594-95, 597-603, 799).
was seen at St. Luke's on March 2, 2011 for vertigo of
“unclear etiology” and hypertension, which was
well controlled. (Tr. 652). Plaintiff “elude[d] to the
fact that she might want to apply for Social Security
Disability.” (Id.). Plaintiff underwent a
brain MRI on March 11, 2011, the results of which were
“unremarkable[.]” (Tr. 656, 797).
12, 2011, plaintiff was evaluated at Day Kimball Healthcare
for benign positional vertigo. (Tr. 657-69; see Tr.
757-61). Plaintiff received treatment through August 9, 2011,
and was discharged with a home program. (Tr. 657-59;
see Tr. 756, 762-67).
January 25 and February 22, 2012, plaintiff was evaluated at
St. Luke's. (Tr. 674). She had frequent, daily vertigo
attacks and was diagnosed with acute adjustment disorder on
January 25, 2012. (Id.). A month later, she was
dysthymic with some depressed affect, and she was diagnosed
with acute adjustment disorder with depressed mood and
underlying major depression. (Id.).
15, 2012, plaintiff had a consultation for her vertigo with
Dr. Grazyna Pomorska of Day Kimball Hospital. (Tr. 694-95).
Plaintiff reported that she experienced a “spinning
sensation which comes and goes” and which occurred
multiple times during the day “at any time and in any
position[.]” (Tr. 694). She reported that the episodes
lasted for a few minutes and would subside if she stayed
still, and after the episodes she felt “weak and awful
all day.” (Id.). Plaintiff mentioned a history
of neck pain in 2009 that was resolved with physical therapy.
(Tr. 695). Dr. Pomorska recommended an MRI of the brain and
MRA of the head and neck; ...