United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO REVERSE THE DECISION OF
THE COMMISSIONER AND MOTION TO AFFIRM THE DECISION OF THE
A. BOLDEN UNITED STATES DISTRICT JUDGE.
Dolcetti filed a Social Security disability insurance benefit
claim under Section 205(g) of the Social Security Act, as
amended by 42 U.S.C. § 405(g), which was denied.
Dolcetti has now filed a motion to reverse the decision of
the Administrative Law Judge (“ALJ”). Motion to
Reverse the Decision of the Commissioner, ECF No. 19
(“Mot. to Reverse”).
response, Nancy A. Berryhill, Acting Commissioner of the
Social security Administration (the
“Commissioner”), has moved to affirm the
ALJ's decision. Motion to Affirm the Decision of the
Commissioner, ECF No. 20 (“Mot. to Affirm”).
following reasons, the Court GRANTS Mr.
Dolcetti's motion to reverse the decision of the
Commissioner and DENIES the
Commissioner's motion to affirm.
Court also REMANDS the case solely for the
calculation and payment of benefits.
FACTUAL AND PROCEDURAL BACKGROUND
April 2014, Mr. Dolcetti worked as an entertainment
accountant for NBC Universal, LLC. Social Security
Transcripts by Social Security Administration, ECF No. 16
(“Tr.”), at 48, 96. He enjoyed playing golf,
skiing, athletics, jazz piano, and writing screenplays.
Id. at 49.
morning of April 14, 2014, Mr. Dolcetti went to his office to
work on a project. Id. at 52. While there, his
office slowly began to flood with exhaust smoke. Id.
at 53. Mr. Dolcetti “started getting extremely
tired” and then he experienced nausea and blurred
vision. Id. at 51-52. When he walked out of his
office, it was full of smoke. Id. at 53.
Dolcetti's condition worsened, his father and mother took
him to the hospital. Id. at 76. In the emergency
room, he reported “distractibility, forgetfulness,
organization/sequencing problems, spaciness, mental slowing,
blurred vision, paresthesias and nausea.” Id.
at 577 (internal quotation marks omitted). He remained in the
hospital for four days with a diagnosis of carbon monoxide
poisoning. Id. at 221.
October 20, 2014, Herbert Walter Reiher, M.D. examined Mr.
Dolcetti and diagnosed him with carbon monoxide poisoning,
headaches, and dizziness. Tr. at 563. Dr. Reiher determined
that Mr. Dolcetti had postural limitations due to carbon
monoxide poisoning, “producing moderate limitations
with climbing, stooping, bending, crawling, kneeling,
crouching, and reaching.” Id. While Mr.
Dolcetti did not have “vision, hearing, or speech
limitations, ” id., he did have
“environmental limitations of heights which could
produce decreased balance, and exposure to loud noise, bright
lights and computer screens, which could precipitate a
October 21, 2014, another doctor, Jeffrey S. Cohen, M.D.
examined Mr. Dolcetti and determined that his
“[h]istory of carbon monoxide poisoning suggest[ed] a
mild neurocognitive event, migraine headaches, and reported
history of attention deficit hyperactivity disorder.”
Tr. at 573. Dr. Cohen found that Mr. Dolcetti
“appear[ed] to be making very steady and graduated
improvements in his overall level of intellectual and
cognitive performance.” Id. at 567. According
to Dr. Cohen, Mr. Dolcetti reported “that pain
dominates his critical picture. He feels it is causing
impairments in his ability to adjust and recover. He spoke
about difficulty with repetitive backaches and headaches,
difficulty with vision, and headaches have become an extreme
part of his difficulties.” Id. at 571. Dr.
Cohen also observed that “Mr. Dolcetti continues to
experience impairments in migraine headaches, concentration,
and fatigue, ” which required “a temporary period
of rest and ongoing therapies to help him make steady
improvements. However, he [was] most likely going to return
to a usual level of cognitive and intellectual
performance.” Id. at 572.
November 11 until November 25, 2014, Svenja Wacker, Ph.D.
conducted a neuropsychological evaluation of Mr. Dolcetti.
Tr. at 577. During the sessions, Dr. Wacker noted Mr.
Dolcetti's “mildly disconjugate gaze, intermittent
nystagmus and poor balance.” Id. at
578.Although Mr. Dolcetti was alert and aware
with a linear thought process, his “focus deteriorated
rather quickly with reports of fatigue, headache and
increasing difficulties with sustained cognitive
demands.” Id. Dr. Wacker similarly noted that
Mr. Dolcetti had general intellectual functioning in the
superior range, but continued difficulties sustaining
concentration over time after a period of focused cognitive
output suggested significant susceptibility to fatigue.
Id. at 581. This led to brief sessions that Dr.
Wacker stopped when Mr. Dolcetti showed deterioration.
Id. As a result, Dr. Wacker suggested that Mr.
Dolcetti only sustain high levels of cognitive output for
“time-limited intervals in a quiet and distraction-free
environment, not exceeding 45 to 60 minutes” and only
schedule work “during his most alert times of the day
and should be followed by periods of brain rest.”
Id. at 582. After the exam, Dr. Wacker concluded
that “full-time work and commuting are not recommended
at this time.” Id.
as July 18, 2016, Dr. Wacker noted that Mr. Dolcetti's
“difficulties include problems with attention and
short-term memory, poor frustration tolerance, irritability,
depression, mood swings, decreased libido, limited ability to
function in busy, overstimulating environments, visual- and
balance problems and persistent headaches.” Tr. at
114-15. Dr. Wacker observed that Mr. Dolcetti no longer used
a cane, “but remain[ed] quite unsteady and wide-based
in his gait.” Id. at 115. Mr. Dolcetti also
continued to display a “mildly disconjugate gaze,
photophobia, intermittent nystagmus and poor balance.”
continued to have “sound concentration toward the
beginning of each session, ” but “his focus
deteriorated rather quickly with sustained cognitive demands
of lengthy testing sessions.” Id. While Mr.
Dolcetti was able to learn, and retain new information,
reason abstractly, and problem solve quickly, his cognitive
performance “remain[ed] significantly impacted by time
of day, pain level and length of time sustained focus is
required, with much poorer cognitive output during afternoon
sessions and toward the end of sessions.” Id.
at 118. Dr. Wacker suggested that Mr. Dolcetti
“continue engagement in work-related tasks for
time-limited intervals in a quiet and distraction-free
environment, not exceeding 60 to 120 minutes at a
time.” Id. In short, “[c]entral nervous
system compromise leaves him easily overstimulated and
vulnerable to fatigue with limited attentional services,
” so a “[r]eturn to full-time work and commuting
was not appropriate for Mr. Dolcetti.” Id. at
September 30, 2016, Michael Daras, M.D., Mr. Dolcetti's
treating physician since May 14, 2014, recognized the
continuing effects of Mr. Dolcetti's exposure to carbon
monoxide, which the physician diagnosed as encephalopathy, a
disease affecting the brain. Dr. Daras noted that Mr.
Dolcetti rated a “0” for number of hours in an
eight-hour work day Mr. Dolcetti could stand or walk. Tr. at
642. He also determined that Mr. Dolcetti had significant
environmental limitations, due to his impairment, related to
height, chemicals, fumes, moving machinery, temperature
extremes, and vibrations. Id. at 643.
Daras further characterized Mr. Dolcetti's prognosis as
“guarded” and expected Mr. Dolcetti's
impairment to last at least twelve months. Id. Due
to Mr. Dolcetti's “[p]oor concentration and
cognitive function after prolonged activity, ” Dr.
Daras noted that he would have difficulty working at a
regular job on a regular basis. Id. at 647. More
specifically, he rated Mr. Dolcetti's capacity to handle
the mental abilities and aptitude needed to do unskilled work
as “poor” in the following areas: remembering
work-like procedures, maintaining attention for two-hour
segments, completing a normal workday and workweek without
interruptions from psychologically based symptoms, performing
at a consistent pace without an unreasonable number and
length of rest periods, accepting instructions and responding
appropriately to criticism from supervisors, responding
appropriately to changes in a routine work setting, dealing
with normal work stress, being aware of normal hazards and
taking appropriate precautions. Id. at 649. In
support of these findings, Dr. Daras referred to
neuropsychological testing performed on Mr. Dolcetti, and
noted his decreased performance on these measures over time.
Id. at 650.
August 28, 2014, Mr. Dolcetti applied for disability
insurance benefits under the Social Security Act. Complaint,
ECF No. 1 (“Compl.”), at ¶ 5.
November 12, 2014, the Commissioner denied Mr. Dolcetti's
application. Id. The Commissioner determined that
Mr. Dolcetti suffered severe migraines and spine disorders
that caused a mild restriction in daily living, mild
difficulties in maintaining social functioning, and mild
difficulties in keeping concentration, persistence, or pace.
Tr. at 219-20. The Commissioner determined that Mr. Dolcetti
could occasionally lift up to fifty pounds, frequently lift
up to twenty-five pounds, stand or walk for about six hours
of an eight-hour workday, and did not have any limits on the
operation of hand or foot controls. Id. at 221. The
Commissioner concluded that Mr. Dolcetti could climb ramps or
stairs occasionally, should never climb ladders, ropes, or
scaffolds, occasionally balance, and could frequently stoop,
kneel, crouch, or crawl. Id. at 222. As a result,
the Commissioner concluded that Mr. Dolcetti was not
disabled. Id. at 224.
November 24, 2014, Mr. Dolcetti moved for reconsideration of
the Commissioner's decision. Tr. at 226. On April 28,
2015, the Commissioner denied Mr. Dolcetti's
reconsideration request. Compl. at ¶ 6; Tr. at 237. In
the Commissioner view, the carbon monoxide cognitive
impairment had not gotten worse. Tr. at 233. The Commissioner
also made the same exertion and limitation determinations as
Mr. Dolcetti's original disability determination.
Id. at 235-36.
14, 2015, Mr. Dolcetti requested a hearing. Compl. at ¶
7; Tr. at 251.
October 31, 2016, ALJ Eskunder Boyd heard Mr. Dolcetti's
claims. Compl. at ¶ 8. At the hearing Mr. Dolcetti wore
sunglasses because of his light sensitivity. Tr. at 62.
Dolcetti testified that he does not use any assisted walking
device, unless he is having issues with depth perception and
balance, that he can read the newspaper for short periods of
time before his vision starts to blur, that he could do
simple math with some mistakes, and that he could write for
about a half hour before needing to take a break. Tr. at
46-47. Mr. Dolcetti also testified as to not functioning
outside of the house very well or doing many household chores
within it, but being able to groom, bathe, and cook for
himself and his daughter, as well as care for his pets.
Id. at 48-49. He does not do any laundry or grocery
shopping. Id. at 50. Mr. Dolcetti testified that he
had enough credits to graduate college. Id. at
a normal day, Mr. Dolcetti wakes up, takes his medications,
lets his dogs out, and then makes his daughter's
breakfast. Id. at 50. Mr. Dolcetti testified that he
is best in the morning but begins to experience cognitive
decline as he becomes fatigued, which causes him to need rest
throughout the day. Id. at 57, 65. Mr. Dolcetti also
tries to avoid certain smells, sound, light, movement, or
stressful situations because too much stimuli can trigger a
loss of depth perception, cognitive functioning, lack of
retention, inability to speak, and headaches. Id. at
Dolcetti testified as to not being able to read longer than
thirty or forty minutes before he starts having trouble
focusing. Id. at 55. His ability to follow some
television or movies depends on the day. Id. at 59.
He no longer drives because of his reactions to light and
sound. Id. at 62. Although Botox injections every
six weeks and use of Gabapentin limit the severity of his
headaches, Mr. Dolcetti still regularly has debilitating
headaches that require him to spend up to an hour in a dark
room to recover. Id. at 54, 63. Mr. Dolcetti
testified needing to be alone because of overstimulation
between two and three times per week. Id. at 63.
Dolcetti's father testified that his long- and short-term
memory had become limited, and Mr. Dolcetti's wife and
father do most of his paperwork. Id. at 72. Mr.
Dolcetti's father also testified that light and loud
noises hinder Mr. Dolcetti's ability to interact with his
family. Id. at 74-75. Finally, his father testified
that there was a definitive difference between Mr. Dolcetti
before and after his carbon monoxide poisoning. Id.
at 76, 77-78.
Vocational Expert Testimony
administrative hearing, Michael Durval testified as a
vocational expert. Tr. at 79. Mr. Durval acknowledged that
someone with Mr. Dolcetti's medical history should not
perform any balancing, work with heights or hazards, and
should avoid concentrated exposure to pulmonary irritants,
but could perform simple, routine, and repetitive tasks.
Id. at 81. With the added limitations of only being
able to work for two-hour segments, inability to have
extended interaction with co-workers or the public, and
issues with depth perception, someone in Mr. Dolcetti's
medical position would be able to work as a laundry worker, a
stock laborer, or an assembler of small products.
Id. at 81-85.
Durval also testified that there were several possible
full-time employment limitations for someone in Mr.
Dolcetti's position. When the ALJ asked Mr. Durval
whether an inability to keep concentration, pace, and
persistence for two-hour segments would be a disqualifying
factor for full-time work, Mr. Durval responded that this
would be a hindrance regardless of the sound, light, or
exertional levels. Id. at 86. When asked about a
potential absenteeism rate of three or four days per month,
Mr. Durval testified that sort of absenteeism would rule out
any full-time work, regardless of any other limitations.
Id. at 86-87.
asked whether fluorescent lighting as a vocational limitation
would limit the work available to someone, Mr. Durval
responded that a fluorescent light limitation would eliminate
work in most workplaces and the suggested hypothetical
professions already listed. Id. at 88. When asked
whether an employee that regularly needed a one-hour break
separate from regularly scheduled break times would be able
to work full-time, Mr. Durval responded that someone in that
position would not be employable for any job on a full-time
basis. Id. Finally, when asked if someone with an
impairment causing them to be off task at least fifteen
percent of the workday would be able to work full-time, Mr.
Durval testified that such a person would be unemployable on
a full-time basis. Id. at 89.
January 23, 2017, the ALJ found that Mr. Dolcetti was
disabled from April 4, 2014 until January 1, 2016, but that
his disability ended on January 2, 2016. Tr. at 28. The ALJ
made seventeen factual and legal conclusions:
1. Mr. Dolcetti met the insured status requirements of the
Social Security Act through December 31, ...