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Marylynn Dombrowski v. Michael J. Astrue

November 22, 2011

MARYLYNN DOMBROWSKI, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER

Plaintiff Marylynn Dombrowski seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. §§ 416, 423(d). The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a motion for summary judgment asking for a remand. After careful review of the record, the Court now grants Plaintiff's motion and remands the case for further proceedings.

PROCEDURAL HISTORY

Plaintiff applied for DIB on January 14, 2008, alleging that she became disabled on May 31, 2000 from Meniere's disease,*fn1 silent migraines, loss of concentration and memory loss. (R. 186, 216, 221). The Social Security Administration ("SSA") denied the application initially on March 25, 2008, and again on reconsideration on June 16, 2008. (R. 103-07, 110-13). Plaintiff appeared with counsel at an administrative hearing on August 13, 2009, and provided testimony along with a medical expert ("ME") and vocational expert ("VE"). The Administrative Law Judge ("ALJ") who presided over that hearing apparently retired before rendering a decision, so the case was reassigned to ALJ John L. Mondi. (R. 8). ALJ Mondi held a second hearing on January 13, 2010, and heard testimony from Plaintiff, ME Laura Rosch, M.D., and VE Aimee Mowery. (R. 68-100).

Less than a month later, on February 5, 2010, the ALJ found that Plaintiff was at all relevant times capable of performing her past work as a quality assurance software analyst, medical secretary and insurance clerk and, thus, is not disabled. (R. 8-15). The Appeals Council denied Plaintiff's request for review on January 28, 2011, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 1-3).

In support of her request for a remand, Plaintiff argues that the ALJ (1) improperly concluded that she did not meet Listing 2.07 for Meniere's disease; (2) erred in assigning weight to treating physician Dr. Kumar's opinion; (3) failed to consider her sensitivity to fluorescent lights in determining her RFC; and (4) made a flawed credibility assessment under SSR 96-7p. As discussed below, the Court agrees that the ALJ's credibility determination is not supported by substantial evidence and requires a remand.

FACTUAL BACKGROUND

Plaintiff was born on July 7, 1959, and was 50 years old at the time of the ALJ's decision. (R. 186, 216). She has a high school education plus "some night school through college," and lives with her husband and two children. (R. 33, 72, 227). Between 1982 and May 2000, Plaintiff worked as a senior quality insurance software supervisor, quality insurance employee and software analyst at three different firms. (R. 222). Though Plaintiff alleges a disability onset date of May 31, 2000, she worked as a receptionist and insurance clerk from August to December 31, 2005, and as a part-time receptionist from December 18, 2006 to May 30, 2007. (R. 72, 222, 230). Her date last insured ("DLI") for disability benefits was June 30, 2006. (R. 195).

A. Medical History

Plaintiff first started complaining of vertigo symptoms in 1998. A treatment note from the Glen Ellyn/Wheaton Medical Clinic ("Glen Ellyn Clinic") dated December 23, 1998 indicates that Plaintiff was suffering from sinus pain at that time and reported that she had been seeing Dr. Angelo R. Consiglio of the Loyola University Medical Center Department of Otolaryngology "for vertigo approximately three months now." (R. 910). Dr. Consiglio's records are difficult to decipher, but on November 11, 1998, he noted that Plaintiff was experiencing "less vertigo today." (R. 323).

1. 2000

Plaintiff next sought treatment for vertigo on January 27, 2000, when she went to the emergency room at the Glen Ellyn Clinic complaining of dizziness, fainting spells and headaches. She reported having an episode of vertigo five days earlier and told Dr. M. Nelson that when she stood up suddenly or had been standing for awhile, she "developed severe lightheadedness where she feels she's going to pass out." The symptoms were worse after she worked out. (R. 891). Plaintiff was taking Meclizine for nausea and Zyrtec for allergy symptoms at that time, and Dr. Nelson opined that the dizziness could be related to some earlier dysfunctional uterine bleeding. (Id.).

Plaintiff returned to the Glen Ellyn Clinic on February 3, 2000 for a follow-up examination. Dr. Nelson characterized her previous dizziness as "orthostatic hypertension,"*fn2 and noted that she reported "feeling well now with no symptoms of lightheadedness." (R. 892). When Plaintiff saw Dr. Nelson again on February 9, 2000, she complained of having "a couple episodes of dizziness mainly after exertion," including aerobics, vacuuming and cleaning the house. She denied experiencing any vertigo, and Dr. Nelson referred her to an "ENT [ear, nose and throat doctor] for reevaluation and treatment." (R. 944).

Two days later, on February 11, 2000, Plaintiff returned to the Glen Ellyn Clinic because she felt like she was going to faint 17 times a day. The feeling became worse when she worked out, if she rapidly went from lying down to standing, or if she heard a high-pitched noise. (R. 965). This time Plaintiff was seen by Dr. Sandra Y. Lin, who diagnosed her with "[d]izziness -- by history . . . unlikely vestibular [related to the inner-ear]," and otalgia (ear pain). (R. 966). Dr. Lin ordered an electronystagmography ("ENG") test to check for involuntary eye movements associated with vestibular dysfunction. Plaintiff took the test on February 17, 2000, and clinical audiologist Linda Berry, USCCC/A, found that it showed "unilateral weakness to the right." (R. 956). An MRI taken shortly thereafter on March 1, 2000, however, was "unremarkable." (R. 952). Plaintiff saw Dr. Lin again on March 13, 2000, still complaining of dizziness and "near fainting." She reported bilateral otalgia associated with exercise, as well as ear fullness that had improved with antibiotics.

(R. 949-50).

On March 27, 2000, Plaintiff started seeing Dr. Sam J. Marzo of Loyola University's Department of Otolaryngology at the request of Dr. Consiglio. (R. 380). Plaintiff told Dr. Marzo that on January 31, 2000, she had experienced "acute onset of lightheadedness with right-sided ear fullness, tinnitus*fn3 and hyperacusis."*fn4 There was "a positional component" to the dizziness and "at times [she] feels as if she is fainting." (Id.). Plaintiff complained of nausea, but she "did not have any vomiting" and "really denied any true spinning" associated with vertigo. (Id.). Dr. Marzo found that Plaintiff had normal Quix and Romberg tests, but she "was unsteady on Sharpened Romberg testing."*fn5 (R. 381). Her February 17, 2000 ENG "revealed a 60% right-sided caloric weakness,"*fn6 and her Dizziness Handicap Inventory ("DHI")*fn7 was 90 with a reported four attacks in the previous six months. (R. 382). Dr. Marzo diagnosed right-sided ear fullness, right tinnitus, vertigo and "[p]robable right inner ear fluid imbalance." (R. 382). He opined that Plaintiff had "an early form of right-sided Meniere's disease," explaining that she "has all of the symptoms except for right-sided ear hearing loss." He instructed her to follow up with him in three months. (Id.).

When Plaintiff saw Dr. Marzo on June 19, 2000, she continued to complain of right-sided ear pressure and hyperacusis, and stated that she had experienced approximately seven episodes of vertigo since March 2000. (R. 384, 885). Dr. Marzo diagnosed right-sided ear fullness, right tinnitus, vertigo, possible right inner ear fluid imbalance, and allergic rhinitis. (Id.). He noted that Plaintiff "might have a co-existing allergic rhinitis as an exacerbation of her symptoms," and referred her back to Dr. Consiglio for sinus management. (R. 385, 886).

Dr. Consiglio examined Plaintiff on June 28, 2000. His notes indicate that she had Meniere's disease and "drop attacks,"*fn8 and he sent Dr. Marzo a letter stating that Plaintiff "will be undergoing allergy testing for further evaluation for a possible allergy etiology to her Meniere's disease." (R. 319, 884). Dr. Consiglio conducted the allergy test on August 11, 2000, and noted that Plaintiff was allergic to mold, wood and oak. The rest of his notes are illegible, so it is not clear how the findings relate to Plaintiff's Meniere's diagnosis, if at all. (R. 319).

More than four months later, on December 26, 2000, Plaintiff went to the Glen Ellyn Clinic complaining of arm pain after "working out." (R. 876).

2. 2001 through 2003

Plaintiff had an audiogram on March 19, 2001 to test her hearing. She complained of sensitivity to high frequency loud sounds, and exhibited "slight hearing loss" in both ears. Her speech discrimination, however, was excellent. (R. 468). Shortly thereafter, on June 5, 2001, Plaintiff saw Dr. J. Scruggs of the Glen Ellyn Clinic. Her Meniere's disease was under "good control" at that time with medication, including the diuretic Midamor (also called Amiloride) for high blood pressure, Zyrtec, and Antivert for nausea. (R. 864). Dr. Scruggs noted that Dr. Marzo from Loyola had assessed Plaintiff with Meniere's disease/drop attacks and right-sided hearing loss, but he referred Plaintiff to Dr. Terry L. Donat to see if he agreed with that diagnosis. (R. 851, 865).

When Dr. Donat examined Plaintiff on August 8, 2001, he determined that her Meniere's disease was "in good control on Amiloride," and recommended that she continue treatment with Dr. Marzo. (R. 851-52). The following month, on September 17, 2001, Plaintiff saw Dr. Marzo to follow-up on her right ear issues. Dr. Marzo noted that she had tinnitus, pressure, and attacks of vertigo, and diagnosed her with "early right endolymphatic hydrops."*fn9 (R. 392, 393). An audiogram taken the same day showed "a mild high- frequency sensorineural hearing loss bilaterally," but excellent speech discrimination. (R. 392, 394, 488). Dr. Marzo instructed Plaintiff to return in six months. (R. 393).

Plaintiff next went to see Dr. Scruggs on October 18, 2001 complaining of chest congestion and ear pain. She told him that she was a runner, and he suggested that she "not exercise when sick." (R. 855). On April 8, 2002, Plaintiff had a follow-up examination with Dr. Marzo. She reported that her symptoms were "worse in the Spring and Fall," leading Dr. Marzo to believe that there was "an allergy component" to them. (R. 396). Plaintiff's medications included Amiloride, Zyrtec, Astelin inhaler for asthma, and Nasonex for allergies, and Dr. Marzo stated that he was "happy with this patient's progress and she will see me in follow up in six months." (Id.).

When Plaintiff saw Dr. Marzo on October 14, 2002, her symptoms were stable, but she reported having "occasional disequilibrium and some spinning vertigo lasting 30 seconds to 30 minutes, primarily around her menstrual cycle." (R. 407). Plaintiff said that during one of these episodes, she experienced hyperacusis, tinnitus and pressure. On examination, a binocular microscopic otoscopy was normal bilaterally, as was a DixHallpike test for vertigo. (R. 407-08). Dr. Marzo diagnosed right peripheral vertigo with endolymphatic hydrops, and noted that Plaintiff was taking Amiloride, Zyrtec, Astelin, Nasonex, Meclizine and Valium at that time. (R. Id.). Dr. Marzo told Plaintiff to return in six months. (R. 408).

At that follow-up visit on April 10, 2003, Plaintiff's physical examination was normal, but she complained of "difficulty in shopping malls and supermarkets," and problems with motion. Dr. Marzo again diagnosed right peripheral vertigo with endolymphatic hydrops, and added a diagnosis of "probable migraine-associated dizziness." (R. 430). He characterized Plaintiff as having "a complicated case" best addressed with medical management, and instructed her to continue taking Valium and Amiloride once a day. (R. 431).

On October 27, 2003, Plaintiff had another audiogram that again showed mild sensorineural hearing loss. (R. 487). During a visit with Dr. Marzo the same day, Plaintiff reported having flare-ups of vertigo and imbalance which she attributed to stress. The episodes lasted several minutes and were accompanied by right-sided ear pressure and bilateral tinnitus. (R. 436). Dr. Marzo noted that Plaintiff had normal results on binocular microscopic otoscopy and Dix-Hallpike testing, but 92% speech discrimination. (R. 436-37). He diagnosed disequilibrium, endolymphatic hydrops and vestibular migraine, and urged Plaintiff to adhere to a low-sodium diet. (R. 437).

3. 2004 through June 30, 2006

At her next appointment with Dr. Marzo on April 26, 2004, Plaintiff complained of a recent episode of "severe motion sensitivity associated with nausea and vomiting while flying." Her tests (binocular microscopic otoscopy and Dix-Hallpike) were once again normal, and Dr. Marzo refilled her prescriptions for Zyrtec, Nasonex, Meclizine, Valium and Amiloride. (R. 442-43). A progress note from Loyola dated August 11, 2004 reflects that Plaintiff "is a runner," and that she had developed a bunion. (R. 444-45).

Plaintiff returned to Dr. Marzo on October 25, 2004 for her next six-month check-up. (R. 446). She told the doctor that she had experienced problems with her balance and hearing over the previous two to three months, and that when someone screamed in her ear at a birthday party, her hearing in that ear was muffled for about 20 minutes before returning spontaneously. (Id.). Plaintiff's binocular microscopic otoscopy test was normal, and an audiogram taken that day was "stable." (R. R. 446, 486). Dr. Marzo diagnosed "[s]table vestibular migraine" and again instructed Plaintiff to return in six months. (R. 447).

On April 25, 2005, Dr. Marzo reported that Plaintiff was "doing quite well." Her tests (binocular microscopic otoscopy and Dix-Hallpike) were normal, and Dr. Marzo diagnosed migraine-associated dizziness and positional vertigo. (R. 457). By the time Plaintiff saw Dr. Marzo again on October 24, 2005, she had started working two part-time jobs. (R. 222, 377). She said that she had been doing "okay" and was overall "able to work." (R. 377). She did complain of sensitivity to bright lights and motion, however. Testing was all normal (including binocular microscopic otoscopy and Dix-Hallpike), and Dr. Marzo diagnosed migraine-associated dizziness. (Id.). Shortly thereafter, on December 13, 2005, Plaintiff told Dr. Judge that she was exercising 4 to 5 days per week. (R. 538).

On April 24, 2006, Dr. Marzo noted that Plaintiff's hearing was relatively stable, though she reported experiencing occasional imbalance upon standing too quickly. (R. 536-37). Plaintiff also complained of fluctuating tinnitus and hearing loss on the right lasting hours to days. On examination, her ears were both normal, and she still exhibited only mild sensorineural hearing loss. Dr. Marzo ...


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