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Gendron v. Berryhill

United States District Court, D. Connecticut

February 8, 2018



          Joan Glazer Margolis United States Magistrate Judge.

         This 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”].


         On July 26, 2013, plaintiff applied for SSI benefits[1] 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.”)).[2] 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).

         On 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).[3] On October 20, 2017, plaintiff filed her reply brief. (Dkt. #19).

         For the 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 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).

         At her 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).[4] 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. 37-38).[5]

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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. (Tr. 65).


         In the application for benefits at issue on this appeal, plaintiff has alleged that she is disabled as of May 21, 2009;[7] 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).

         Plaintiff's 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).

         From 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).

         On May 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).

         On June 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).[8]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).

         On 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. 687, 792).[9]

         On 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).

         On 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, 683, 801).[10]

         On July 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).

         Plaintiff 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).

         On July 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).

         On 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.).

         On May 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; ...

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