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Washington v. Astrue

September 1, 2010


The opinion of the court was delivered by: Magistrate Judge Young B. Kim


Before the court is the motion of plaintiff Barbara Washington ("Washington") for summary judgment. Washington seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423(d)(2), and Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Washington asks the court to reverse the Commissioner's decision and award benefits, or in the alternative, remand the decision for further proceedings. For the following reasons, the motion is granted to the extent that the cause is remanded for further proceedings consistent with this opinion:

Procedural History

Washington applied for DIB and SSI on December 20, 2004, alleging that she became disabled on March 30, 2004, due to migraine headaches, dizziness, slurred speech, stroke, and numbness. (Administrative Record ("A.R.") 69-70.) Her applications were denied initially on May 11, 2005, (id. at 71-75), and again on reconsideration on July 6, 2005, (id. at 76-80). Thereafter, Washington filed a timely request for a hearing on August 26, 2005. (Id. at 81.)

An administrative law judge ("ALJ") held a hearing on May 3, 2007. (A.R. 392-447.) Washington appeared and testified at the hearing. (Id. at 396.) Dr. Eric Ostrov, a medical expert ("ME"), and Glean Kehr, a vocational expert ("VE"), also appeared and testified at the hearing. (Id. at 411, 420.) On June 11, 2007, the ALJ issued a decision finding Washington not disabled. (Id. at 61-68.) Washington then requested a review of the ALJ's decision, (id. at 53), and on September 28, 2007, the Appeals Council granted the request, (id. at 42-44). The Appeals Council vacated the ALJ's decision and remanded the case for the purpose of considering an April 19, 2007 medical report and ordering a neuropsychological assessment. (Id. at 43-44.)

The ALJ held a second hearing on October 22, 2008, at which Washington appeared and testified. (A.R. 448-84.) Dr. Walter Miller, an ME, and James Breen, a VE, also appeared and testified. (Id. at 467, 481.) On November 10, 2008, the ALJ issued a second decision again finding Washington not disabled. (Id. at 23-30.) Washington again requested a review of the ALJ's decision, (id. at 19), and on May 28, 2009, the Appeals Council denied her request making the ALJ's decision the final decision of the Commissioner. (Id. at 8-9.) Pursuant to 42 U.S.C. § 405(g), Washington initiated this civil action for judicial review of the Commissioner's final decision. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).


A. Medical Evidence

In March 2004, Washington sought emergency medical treatment for dizziness, which she described as feelings of vertigo and lightheadedness. (A.R. 222-26.) She reported having episodes of dizziness for two days with her first episode occurring while she was working as a bus driver for the Chicago Transit Authority ("CTA"). (Id. at 223.) She thought objects seemed to be tilted in front of her. (Id.) Washington also felt as if she lost her memory earlier in the day, but that had since subsided. (Id.) She described periodic episodes of numbness in her left scalp, face, arm, and leg, blurry vision, a left parietal headache, and slight shortness of breath. (Id.)

The records from her March 2004 hospitalization indicate that Washington had been experiencing similar episodes of dizziness and left-sided numbness for more than eight years. (A.R. 223.) She previously underwent extensive medical testing, which included computed tomography ("CT"), magnetic resonance imaging ("MRI"), and electroencephalography ("EEG") studies to evaluate her condition, but no etiology was identified. (Id.) A physical examination and CT of the head/brain did not reveal any abnormal findings. (Id. at 223-24, 226.) Washington was diagnosed as having acute dizziness and left hemisensory parathesia of an unknown etiology. (Id. at 224.)

Several weeks later, in April 2004, Washington complained to Dr. Konstantin Dzamashvili, a neurologist, that she had numbness and tingling in her left side, difficulty in "putting words together," dizziness, and migraine headaches. (A.R. 244.) Her neurological examination that day was unremarkable. (Id.) Washington underwent an MRI of her head/brain, (id. at 247), and an electromyography ("EMG"), which produced normal results, (id. at 253-55). Dr. Dzamashvili assessed Washington with hemiparesthesia and dizziness. (Id. at 244.)

Dr. Dzamashvili saw Washington a few more times and in June 2004, Washington complained that she continued to experience dizziness and heaviness of her head. (A.R. 236.) She also explained that she "blacked out" while driving and caused a car accident. (Id.) However, her neurological examination and EEG showed normal results. (Id. at 236, 238.) Dr. Dzamashvili concluded that Washington suffered from syncope of an unknown etiology, referred her for vestibular physical therapy, and restricted her from driving. (Id. at 234, 236, 238, 244.) Further testing and examination the following month did not reveal any abnormalities. (Id. at 232-33, 303-04.)

Washington next attended a consultative examination in April 2005, with Dr. Stanley Rabinowitz. (A.R. 256-58.) She explained to Dr. Rabinowitz that she developed numbness on the left side of her body and slurred speech in 1995. (Id. at 256.) About nine years later in 2004, Washington began experiencing dizziness and also had periods of memory loss. (Id.) She reported that she had been treated for her symptoms, but the results of her diagnostic tests did not indicate any abnormal findings. (Id.) She was taking Nortriptyline for her dizziness. (Id.) Dr. Rabinowitz's neurological and musculoskeletal examinations of Washington also showed normal findings. (Id. at 257-58.)

About three weeks later, in May 2005, Washington sought emergency medical treatment for intermittent episodes of dizziness and numbness on the left side of her body. (A.R. 269.) Her physical examination did not indicate any abnormal findings. (Id. at 269-70.) Washington's CT of her head/brain and heart electrocardiography ("EKG") were also within normal limits. (Id. at 270.) She was diagnosed as having chronic and recurrent vertigo. (Id.) Additional testing in July 2005 did not reveal any abnormalities, with the exception of an elevated sedimentation rate. (Id. at 339-48.)

The following year, in March 2006, Washington sought emergency medical treatment for back pain, leg numbness, headaches, and dizziness. (A.R. 274-80.) An x-ray of her lumbar spine did not reveal any abnormalities. (Id. at 271.) Washington also underwent a CT of her head/brain. (Id. at 272.) However, there was no acute or significant intracranial or calvarial pathology noted. (Id.)

Later in March 2006, Washington met with Dr. Ari Rubenfeld, an otolaryngology specialist. (A.R. 376-77.) Washington complained of dizziness, vertigo, feeling off balance, numbness on the left side of her body, and left-sided headaches. (Id. at 376.) She told Dr. Rubenfeld that she becomes fatigued before each episode and each episode lasts from several minutes to several days. (Id.) Washington explained that she hit her head on a freezer door about ten years earlier, which caused numbness of her scalp, but she did not feel any dizziness until just two years earlier. (Id.) Upon examination, Dr. Rubenfeld found Washington's ear, nasal, and oral examinations unremarkable, but observed that she was always leaning and catching herself on the right side. (Id.) An audiogram and an electronystagmography ("ENG") were ordered to assess the etiology of Washington's condition. (Id. at 377.)

In May 2006, the results of Washington's audiogram indicated that she has normal bilateral hearing, (A.R. 378), but the ENG was abnormal secondary to up-beating nystagmus which was present in all positions, (id. at 379). Shortly thereafter, Washington complained to Dr. Rubenfeld that she had severe dizziness during the past three to four days. (Id. at 375.) Dr. Rubenfeld noted that Washington's ENG results showed nystagmus secondary to a central cause and that she would follow up with her neurologist to rule out multiple sclerosis. (Id.) He also noted that she needed vestibular rehabilitation physical therapy. (Id.)

In October 2006, Washington had a physical therapy evaluation at Schwab Rehabilitation Hospital. (A.R. 323-25.) At that time, Washington explained that she was only able to walk a few feet before she became dizzy, and if she walked more than one block, she felt unsafe to continue because of her dizziness. (Id. at 323.) She listed Lorazepam as one of her medications. (Id. at 324.) Testing that day showed a Berg Balance Scale score of 50/56, with lower extremity weakness which was greater on the left than the right and decreased ankle strategies for balance recovery which are greater on the left than the right.

(Id.) Washington's diagnoses included impaired functional mobility secondary to leg weakness and dizziness. (Id. at 323-24.) She was referred for physical therapy for functional training, neuromuscular re-education, balance activities, and therapeutic exercise. (Id.)

In 2007, Dr. Rubenfeld treated Washington on three separate occasions. (A.R. 370-73.) Dr. Rubenfeld's January 2007 treatment notes indicate that Washington never received her vestibular rehabilitation therapy and that she was still having episodic dizzy spells. (Id. at 373.) She reported that she sometimes felt fullness in her ear and that her dizziness was fierce enough to cause her to fall off of a chair. (Id.) Dr. Rubenfeld prescribed Dyazide for ear fluid and a low-salt diet of 2000 milligrams per day to assess if Washington suffered from Meniere's disease.*fn1 (Id.)

In a follow-up appointment in April 2007, Washington told Dr. Rubenfeld that her symptoms had improved. (A.R. 372.) Washington explained that she feels pressure in her ears when she eats salty meals and her dizziness made her feel as if she is tilting over. (Id.) Dr. Rubenfeld's diagnosis was Meniere's disease and he prescribed nutritional supplements in addition to medication and a low-salt diet. (Id.)

About five months later, in October 2007, Washington complained to Dr. Rubenfeld that she was having episodes of dizziness about two times per month. (A.R. 371.) She explained that her most recent episode lasted for several hours and was debilitating. (Id.)

Dr. Rubenfeld continued Washington's medication and referred her to Dr. Miriam Redleaf, a neuro-otologist specialist, to consider surgical options, including endolymphatic sac decompression. (Id.)

In November 2007, Dr. Redleaf evaluated Washington. (A.R. 370.) Treatment notes indicate that Washington experienced spinning sensations twice per month, but that these episodes typically lasted for only a day. (Id.) Dr. Redleaf reported that after Washington has a salty meal, she is unsteady the following day, but that when she adheres to a low-salt diet and takes her medication, she does rather well. (Id.) She also noted that Washington has fewer episodes when she takes only one college course instead of two. (Id.) Dr. Redleaf told Washington that endolymphatic sac surgery might reduce her episodes, but explained that there were risks which she needed to consider before pursuing the surgical option. (Id.)

Washington underwent another consultative examination in January 2008, with Dr. Alan Long, a licensed clinical psychologist. (A.R. 356-61.) Washington explained to Dr. Long that she had been diagnosed with Meniere's disease, and that she had "drop attacks" in 2006 related to her disease. (Id. at 356.) She stated that she had to choose between working and going to school because when she did both, she experienced dizzy spells. (Id.) Dr. Long noted that Washington was taking two online college courses from home and would be taking another course at her local college. (Id.)

Dr. Long gave Washington the Luria-Nebraska Neuropsychological Battery, a standardized test used to measure and evaluate neurological dysfunction resulting from a disease or injury. (A.R. 357-58.) Washington's test results showed a normal profile. (Id. at 357.) Dr. Long opined that her disease did not affect Washington's ability to understand, remember, and carry out instructions, her ability to interact appropriately with supervisors, co-workers, and the public, and her ability to respond to changes in a routine work environment. (Id. at 359, 360.) However, he noted that Washington's disease interfered with her ability to balance. (Id. at 360.)

Dr. Rubenfeld treated Washington twice more in 2008. (A.R. 368, 369.) In February 2008, Washington reported that she had been feeling well except for a dizzy spell she had earlier that month. (Id. at 369.) Her ear examination was unremarkable and she had no nystagmus. (Id.) Treatment notes indicate that Washington "does not want surgery yet." (Id.) Dr. Rubenfeld's treatment plan included Dyazide, a low-salt diet, and scopolamine patches. (Id.)

In August 2008, Washington reported to Dr. Rubenfeld that in June 2008, she began having dizzy spells again and felt fullness in her ear. (A.R. 368.) Treatment notes show that Washington was selling Avon products online and taking online college courses. (Id.) She was being cautious with her sodium intake and taking Dyazide to control her symptoms. (Id.) An ear examination that day showed that the tympanic membranes were normal bilaterally and there was no nystagmus. (Id.) Dr. Rubenfeld assessed Washington as having poorly controlled Meniere's disease and recommended that she reconsider her surgical options. (Id.)

He also informed Washington that he was leaving his position and that she needed to follow-up with Cook County Hospital in the future as she lacked medical insurance. (Id.)

In October 2008, Dr. Rubenfeld completed a Meniere's Disease Residual Functional Capacity ("RFC") Questionnaire. (A.R. 362-66.) In filling out the questionnaire, he noted that his diagnosis of Meniere's disease was based on a disturbed function of vestibular labyrinth as demonstrated by caloric and other vestibular tests. (Id. at 362-63.) Dr. Rubenfeld noted that Washington's symptoms included vertigo, nausea, vomiting, and tinnitus. (Id.) He indicated that Washington has four to five attacks of balance disturbance each week and that her attacks are so severe that they caused her to fall out of a chair. (Id. at 362-64.) Dr. Rubenfeld further indicated that Washington did not always have warning of an impending attack and the attacks did not occur at any particular time of the day and that her impairments were reasonably consistent with her symptoms and functional ...

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