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Lea Elmalech v. Michael J. Astrue

June 10, 2011

LEA ELMALECH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Michael T. Mason

MEMORANDUM OPINION AND ORDER

Michael T. Mason, United States Magistrate Judge:

Plaintiff, Lea Elmalech ("Elmalech" of "claimant"), has filed a motion for summary judgment [10] seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner"). The Commissioner denied Elmalech's claim for disability benefits under the Social Security Act, 42 U.S.C. §§ 416(i) and 423(d). The Commissioner filed a response [16] asking this Court to affirm the decision of the Administrative Law Judge. We have jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, Elmalech's motion for summary judgment is granted.

I. BACKGROUND

A. Procedural History

Elmalech filed an application for Disability Insurance Benefits ("DIB") on January 18, 2007 alleging chronic dizziness and an onset date of June 1, 1993. (R. 11, 121-23.) Her application was denied initially on March 21, 2007 (R. 57-61), and again on May 25, 2007 after a request for reconsideration. (R. 62-68.) Elmalech then filed a timely request for a hearing. (R. 69.) Elmalech appeared with counsel at a hearing on April 15, 2008 before Administrative Law Judge Robert Karmgard ("ALJ" or "ALJ Karmgard").

(R. 21-54.) A continued hearing was held on September 4, 2008, also before ALJ Karmgard. (R. 411-479.)

On October 1, 2008, ALJ Karmgard issued a written decision denying Elmalech's request for benefits. (R. 8-20.) Elmalech filed a timely request for review of the ALJ's decision. (R. 5-7.) The Appeals Council denied Elmalech's request for review on June 23, 2009 (R. 1-3), and ALJ Karmgard's decision became the final decision of the Commissioner. See Zurawski v. Halter, 245 F.3d 881, 883 (7th Cir. 2001). This action followed.

B. Medical History

1. Records Prior to Date Last Insured

There are no medical documents in the record from the period prior to claimant's date last insured, June 30, 1995. The record does contain a handwritten note from Dr. Herbert R. Lang, dated August 28, 2008, which reads: "Mrs. Elmalech was a patient of mine in the 1980s -1990s. Old records could not be located. I do remember she had major issues with chronic dizziness." (R. 410.) In a letter to the ALJ dated June 24, 2008, claimant's counsel reported that Dr. Lang's office only keeps records for approximately 10 years and, for this reason, she was unable to obtain records dating back to the 1990s. (R. 193.)

2. Records Following Date Last Insured

a. Rush North Shore Medical Center

Elmalech underwent cardiac testing at Rush North Shore Medical Center ("Rush") on September 19 and 26, 1996. (R. 232-36.) At the September 19 testing, "exercise was stopped due to dizziness when the patient jump[ed] off treadmill on her own." (R. 235.) The results of the cardiac testing reveal a diagnosis of angina, but no significant abnormalities. (Id.) A February 19, 1997 CT scan of claimant's paranasal sinuses, performed at the North Shore CT Center, was normal "except for a tiny solitary left ethmoid air cell" and a "possible small polyp." (R. 409.)

Claimant was hospitalized at Rush on December 24, 1998 due to complaints of chest pain. (R. 202.) The emergency department admitting physician, Dr. Stephanie R. Black, noted multiple cardiac risk factors, including "hypertension, diabetes, [and] obesity." (R. 202.) Dr. Black also noted a prior history of glaucoma. (Id.)Cardiac testing performed during Elmalech's hospital stay revealed mild cardiomegaly, normal sized aorta and pulmonary vessels, no definite reversible lesions, and clear lungs. (R. 213-214.) Claimant was discharged on December 26, 1998 with a final diagnosis of "chest pain, probably non-cardiac in origin," non-insulin dependant diabetes mellitus, and exogenous obesity. (R. 199.) A follow up cardiac stress test in January 1999 revealed no significant abnormalities. (R. 227.)

Elmalech underwent neurovestibular testing in December 1999 and July 2000.

(R. 221-25.) Neither test revealed any significant abnormalities. (Id.) A sinus CT scan performed at some point in 2000 (date illegible)proved generally unremarkable. (R. 408.)

b. Evanston Northwestern Healthcare

On March 10, 2003, at an appointment with Dr. Hoyee Chan of Evanston Northwestern Healthcare Medical Group ("ENH Medical Group"), claimant presented with a several-month history of dizziness, which had worsened over the preceding one and a half weeks. (R. 262.) Specifically, Elmalech reported "feeling herself spinning" with change of head and body position. (R. 262.) She also reported associated head pressure, neck pain, and an unsteady gait. (Id.) On March 17, 2003, Elmalech reported that her dizziness was 10% better and that Xanax provided minimal relief. (R. 263.) On March 27, 2003, claimant reported dizziness with associated ringing of her ears. (R. 264.) As of May 2003, her dizziness had improved with walking and eye exercises. (R. 265.) On June 3, 2003, claimant explained that her dizziness also improved at times with the help of medication. (R. 266.) At a follow-up appointment on June 24, 2003, Elmalech again reported a slight improvement. (R. 364.)

At a routine visit on July 22, 2003, Elmalech complained of increased dizziness over several days. (R. 360.) She denied any headaches or "room spinning," and was able to walk without an unsteady gait. (Id.) At her appointment on September 9, 2003, claimant reported experiencing dizziness while sitting in the waiting room that day, but further reported that she was walking daily without dizziness and that she planned to start walking with a ...


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