Dolcetti v. Berryhill

          RULING AND ORDER ON MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         Darren 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.

         Mr. 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”).

         In 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”).

         For the following reasons, the Court GRANTS Mr. Dolcetti's motion to reverse the decision of the Commissioner and DENIES the Commissioner's motion to affirm.

         The Court also REMANDS the case solely for the calculation and payment of benefits.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         Before 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.

         On the 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.

         As Mr. 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.

         1. Medical History

         On 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 headache.” Id.

         On 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.

         From 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.^[1]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 late 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.” Id.

         He also 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 119.

         On 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.

         Dr. 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.

         2. Disability Applications

         On August 28, 2014, Mr. Dolcetti applied for disability insurance benefits under the Social Security Act. Complaint, ECF No. 1 (“Compl.”), at ¶ 5.

         On 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.

         On 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.

         On May 14, 2015, Mr. Dolcetti requested a hearing. Compl. at ¶ 7; Tr. at 251.

         On 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.

         3. Witness Testimony

         Mr. 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 46-47.

         During 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 51, 70.

         Mr. 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.

         Mr. 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.

         4. Vocational Expert Testimony

         At the 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.

         Mr. 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.

         When 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.

         5. ALJ Decision

         On 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, ...