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Joy C. Cole v. Michael J. Astrue

August 8, 2011


The opinion of the court was delivered by: Martin C. Ashman United States Magistrate Judge

Magistrate Judge

Martin Ashman


Plaintiff Joy Cole ("Plaintiff") seeks judicial review of a final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying Plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income benefits ("SSI") under Title II of the Social Security Act. Before the Court are motions for summary judgment filed by Plaintiff and the Commissioner. The parties have consented to have this Court conduct any and all proceedings in this case, including entry of final judgment. 28 U.S.C. § 636(e); N.D. Ill. R. 73.1(c). Unfortunately, the long and troubling history of errors that have fueled this case for ten years has not come to an end despite clear instructions from the Appeals Council on the issues that were to have been addressed in this proceeding. For the reasons discussed below, both motions are granted in part and denied in part.

I. Legal Standard

In order to qualify for DIB, a claimant must demonstrate that he is disabled. An individual is considered to be disabled when he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual is under a disability if he is unable to do his previous work and cannot, considering his age, education, and work experience, partake in any gainful employment that exists in the national economy. Id. Gainful employment is defined as "the kind of work usually done for pay or profit, whether or not a profit is realized."

20 C.F.R. § 404.1572(b).

A claim of disability is determined under a five-step analysis. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. First, the SSA considers whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(4)(I). Second, the SSA examines if the physical or mental impairment is severe, medically determinable, and meets the durational requirement.

20 C.F.R. § 404.1520(4)(ii). Third, the SSA compares the impairment to a list of impairments that are considered conclusively disabling. 20 C.F.R. § 404.1520(4)(iii). If the impairment meets or equals one of the listed impairments, then the applicant is considered disabled; if the impairment does not meet or equal a listed impairment, then the evaluation proceeds to step four. Id. Fourth, the SSA assesses the applicant's RFC and ability to engage in past relevant work.

20 C.F.R. § 404.1520(4)(iv). In the final step, the SSA assesses whether the claimant can engage in other work in light of his RFC, age, education and work experience. 20 C.F.R. § 404.1520(4)(v).

Judicial review of the ALJ's decision is governed by 42 U.S.C. § 405(g), which provides that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). The court reviews the entire record, but does not displace the ALJ's judgment by reweighing the facts or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Instead, the court looks at whether the ALJ articulated an "accurate and logical bridge" from the evidence to her conclusions. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Thus, even if reasonable minds could differ whether the Plaintiff is disabled, courts will affirm a decision if the ALJ's decision has adequate support. Elder, 529 F.3d at 413 (citing Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007)).

II. Procedural History

Plaintiff filed for DIB and SSI on September 18, 2001, claiming that she had become disabled as of June 1, 1999. The Social Security Administration ("SSA") denied her claim initially and on reconsideration, and Plaintiff appeared for a hearing on December 18, 2002 before an Administrative Law Judge ("ALJ"). On February 6, 2003, the ALJ issued a decision finding that Plaintiff was not disabled. The ALJ found, for example, that Plaintiff's condition of Meniere's Disease*fn1 was "severe" but that it did not meet or medically equal a listed impairment despite the fact that the testifying medical expert, Dr. Walter Miller, stated that it did. (R. 42.)

An action contesting the ALJ's decision was eventually filed in federal court, which remanded the case to the SSA on a joint stipulation by the parties.

The Appeals Council then issued a remand order on July 8, 2004 that specifically instructed the ALJ to resolve two issues. First, the Appeals Council noted that the medical expert failed to state what listing requirement was met by the Plaintiff's medical condition and that the ALJ failed to evaluate the medical expert's opinion. Accordingly, it instructed the ALJ to obtain supplemental medical evidence to remedy this failing. Second, the ALJ was directed re-evaluate the Plaintiff's credibility in accord with the SSA's regulations. (R. 236-37.)

A second administrative hearing was held on October 6, 2004, and the ALJ once again issued an unfavorable decision on November 23, 2004. (R. 220-23.) The Appeals Council, in turn, again remanded the case to the ALJ for failing to comply with the instructions contained in the Council's prior remand order. The ALJ was once again instructed to resolve inconsistencies between the opinion of the first medical expert, Dr. Miller -- who stated that Plaintiff met a listing requirement -- and expert testimony at the second hearing that she did not. The ALJ was also told once more to evaluate the Plaintiff's credibility in a proper manner and to address whether Plaintiff had an underlying medically determinable physical or mental impairment that could reasonably be expected to produce her alleged symptoms. (R. 229-30.)

On remand, the case was assigned to a new ALJ who held a hearing on December 10, 2007 and issued another unfavorable decision on September 19, 2008. The Appeals Council denied review, and the ALJ's decision became the Commissioner's final decision. Plaintiff then filed the instant action on May 12, 2009.

III. Background Facts

Plaintiff, a 49 year old woman, claims that she became disabled as of June 1, 1999, when problems with dizziness required her to stop working as an accounting office manager. Plaintiff had earlier been diagnosed in 1995 by her treating physician, Dr. Michael Farhi, with benign essential tumor, an involuntary tremor of the arm. (R. 154.) In 1998, Dr. Farhi also diagnosed Plaintiff with a spastic colon. (R. 152.) More serious symptoms of dizziness and other equilibrium problems presented in June, 1999 after Plaintiff suffered from an infection of her left ear. (R. 151-52, 319, 326.) Dr. Farhi followed up his diagnosis by ordering an MRI of Plaintiff's ears, which showed inflammatory changes to her left mastoid air cells. (R. 126.)

Many related diagnoses followed this initial presentation of symptoms, including labyrinthitis, an inflammation of the inner ear, nystagmus -- an involuntary eye movement related to vestibular damage -- tinnitus, and allergies. (R. 151.) To help diminish the severity of her dizziness, Dr. Farhi prescribed Valium as well as various allergy medications. Although her symptoms waxed and waned, they persisted over time, and in January, 2002, Dr. Farhi diagnosed Plaintiff as suffering from Meniere's Disease. (R. 143-44, 169.) After Plaintiff experienced some "floor-moving episodes," Dr. Farhi also added vertigo to the list of disorders she was experiencing in 2002. (R. 165-67.) As before, he noted that her symptoms were not always uniform and that they waxed and waned over time. (R. 165-69.)

A. First Administrative Hearing

Plaintiff appeared without counsel at the first administrative hearing held on December 18, 2002. Plaintiff testified that she experienced some form of equilibrium disturbance every day, although the intensity of her symptoms varied from time to time. She was able to drive short distances, read for thirty minutes, and work on her computer and stand for twenty minutes each. She stated that she paces herself throughout the day. After performing a few chores around the house and doing eye exercises to control her nystagmus, Plaintiff rests before picking up her son from school in the afternoon. She prepares meals step-by-step throughout the day so that no single task triggers symptoms. Disturbing episodes begin with a feeling of pressure and weight pressing down on her head, and at their worst, Plaintiff can experience nausea and feelings "like I'm in an earthquake." (R. 34.) Plaintiff also testified that the dizziness she experiences had become so disturbing that she sought emergency treatment on two occasions. Although no audiology records were submitted to the ALJ, Plaintiff stated that she had a hearing test that showed normal results.

Medical expert Dr. Walter Miller testified that his review of the evidence showed that Plaintiff suffered from Meniere's Disease. Although Meniere's Disease is ordinarily associated with hearing loss, Dr. Miller stated that such symptoms wax and wane. Based on his examination of the medical evidence and questions he asked Plaintiff at the hearing, Dr. Miller testified that she met a listing category. (R. 42.) Notwithstanding this statement, the ALJ determined that Plaintiff was not disabled.

B. The Second Administrative Hearing

Plaintiff continued to see Dr. Farhi after the first administrative hearing, and he also submitted a Meniere's Disease residual functional capacity ("RFC") assessment on October 4, 2004. Dr. Farhi noted that he had treated Plaintiff for eight years and that she had a history of balance problems, tinnitus, and progressive hearing loss that was established by examination in his office. Attacks occurred for Plaintiff one to two times a month and could last up to five days at a time. Dr. Farhi stated that Plaintiff was unable to ambulate without assistance during these episodes and that moving around exacerbated her symptoms. Based on his evaluation of Plaintiff's condition, Dr. Farhi concluded that Plaintiff was unable to ...

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