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Mario J. Suffi v. Michael J. Astrue

May 5, 2011

MARIO J. SUFFI, PLAINTIFF,
v.
MICHAEL J. ASTRUE, HON. HARRY D. LEINENWEBER COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court

MEMORANDUM OPINION AND ORDER

Plaintiff Mario Suffi (hereinafter, "Suffi") seeks review of the final decision of the Defendant Social Security Commissioner, Michael J. Astrue (the "Commissioner"), who denied his application for disability insurance benefits and supplemental security income pursuant to the Social Security Act, 42 U.S.C. §§ 423(d), 1383(c)(3). Suffi asks this Court to reverse this decision and order that he be paid benefits, or remand the case for a new hearing. The Commissioner asks that the Court affirm the decision. For the reasons that follow, the Commissioner's decision is affirmed.

I. INTRODUCTION

A. Procedural History

In August 2007, Suffi applied for disability insurance benefits and supplemental security income, alleging that he had been disabled since a November 10, 2006 injury. Suffi was seeking a finding of a 14-month closed period of disability from that time until he resumed his past employment as a truck driver in January 2008.

Suffi's applications initially were denied on November 1, 2007, and upon reconsideration on February 8, 2008. Suffi then filed a request for a hearing before Administrative Law Judge Robert C. Asbille (the "ALJ"), which was held July 11, 2008. Suffi appeared pro se and testified at that hearing, along with Dr. Julian J. Freeman ("Freeman"), a medical expert, and William Newman ("Newman"), a vocational expert. On August 6, 2008, the ALJ found that Suffi was not disabled for the closed period of disability. The Appeals Council denied Suffi's request for review, making the ALJ's ruling the final agency decision subject to judicial review pursuant to 42 U.S.C. § 405(g).

B. Factual Background

1. Suffi's Medical Treatment

Suffi, 50, was working as a delivery driver when he was injured on November 10, 2006, while stepping off a dock onto a broken step. He was thrown backwards, jarring his neck. Suffi's job required him to load and unload the delivery truck and to lift up to 100 pounds.

Following the accident, Suffi was treated by several physicians. Dr. Hien Dang ("Dang"), a neurologist and psychiatrist, diagnosed Suffi with vertigo and cervical, lumbar sprain and strain. An MRI of his brain was normal. By mid-December 2006, according to the medical reports, Dang found that Suffi's vertigo had abated and it was safe for him to return to work, although he was to stop if symptoms returned. Periodically, Suffi was diagnosed with nystagmus, or involuntary rapid movement of the eye, which was present in some examinations but absent in others.

In May 2007, Dr. Timothy Hain ("Hain"), a neurologist, reported that Suffi's hearing tests were normal and although he was suffering a slight nystagmus, this was not significant. In August 2007, Suffi told neurosurgeon Dr. Fred Geisler that he could work a full day and keep the dizziness to a minimum. However, if he turned his head back and forth repeatedly, he became dizzy and disoriented. Suffi also reported minor neck and shoulder pain. Suffi reported that he could look after himself without any pain and could manage to lift light to heavy objects if they were conveniently positioned. In September 2007, Suffi told two doctors at a pain management center that the pain in his neck was tolerable, and did not limit his activities as the dizziness did. Suffi also saw neurosurgeon Dr. Stanley Fronczak in September 2007, who indicated that Suffi had experienced degenerative changes in his neck consistent with his age, but none significant enough to warrant surgery. Suffi had physical therapy from October 2007 to February 2008. He complained of dizziness, imbalance, and blurred vision.

In October 2007, the Illinois Bureau of Disability Determination Services performed a physical residual capacity assessment of Suffi that concluded that he could perform medium-level work. Another state agency physician reviewed the record in February 2008 and confirmed that finding.

2. Hearing Testimony

At the hearing before the ALJ, Suffi testified that following the accident, he suffered episodes of vertigo. At the beginning, these attacks of dizziness occurred every day, but their frequency decreased over time. Suffi was able to control his symptoms by sitting down and closing his eyes when he felt the onset of dizziness. Suffi said these attacks of dizziness were the main reason he was unable to drive professionally again until January 2008.

Suffi testified that for the first month after his fall, his ability to do housework was affected by the dizziness, but then he learned to cope with it and could take care of himself. Suffi also testified that within a year's time he was experiencing less than one attack a week, although he still was experiencing nystagmus.

Freeman testified that he practiced internal medicine and neurology. After reviewing Suffi's medical records, he said that Suffi had a whiplash injury with complaints of dizziness. Suffi experienced neck pain at the time of the fall, but recovered from that quickly. However, he experienced vertigo, in that there was a disturbance of his inner ear balance mechanism. The medical records indicated that vertigo had become infrequent within a year of Suffi's accident. Freeman testified that Suffi's symptoms fit into Listing 2.07 of the Social Security regulations because he suffered hearing loss and a disturbance of his balance. The problem, Freeman testified, was that Suffi's attacks of dizziness were not of a lasting severity throughout a 12-month period. During the time period when Suffi was experiencing the attacks of dizziness, he would have ...


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