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Hardhardt v. Astrue

May 29, 2008


The opinion of the court was delivered by: Hurley, Senior District Judge



Plaintiff Corinne Hardardt ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner" or "Defendant") which denied her claim for disability benefits. Presently before the Court are Plaintiff's and Defendant's motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons discussed below, Defendant's motion is denied and Plaintiff's motion is granted to the extent that this matter is remanded for further administrative proceedings.


I. Procedural Background

Plaintiff applied for disability benefits on December 12, 2002. (Tr. at 38.)*fn2

Plaintiff claimed that she had been disabled since March 1, 2002, due to vestibular disorder, neck pain, right arm and right shoulder pain, anxiety, dizziness, imbalance, sensitivity to noise, and an inability to comprehend written material." (Id. at 38, 49.)

After her application was denied initially (id. at 16A, 17-19), Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Id. at 20.) A hearing was held before ALJ Joseph Halpern on November 15, 2004, at which time Plaintiff, who was represented by counsel, testified (id. at 211-21), as did Dr. Osvaldo Fulco, a medical expert. (Id. at 217-20.)

ALJ Halpern considered Plaintiff's claims de novo and, on November 30, 2004, issued a decision finding that Plaintiff was not disabled. (Id. at 30-37.) The ALJ found that although Plaintiff suffered from severe impairments that prevented her from performing her past work, Plaintiff was able to perform a wide range of unskilled sedentary work. (Id. at 33-37.)

Plaintiff requested that the Appeals Council review the ALJ's decision. (Id. at 6-8.) By letter dated March 17, 2005, the Appeals Council declined to review the claim. (Id. at 3-5.) Thereafter, Plaintiff timely filed the instant civil action.

II. Factual Background

A. Non-Medical Evidence

Plaintiff was born on June 4, 1957 (id. at 38), and completed high school. (Id. at 55.) She worked as a supervisor for a Long Island law firm from 1977 to March 1, 2002. (Id. at 39, 214.) She alleges that she was unable to continue working as of March 2002 because of dizziness, inability to sit or bend her head for long periods of time, difficulty concentrating, and an inability to write, see or type properly. (Id. at 49.) At the hearing, she testified that she has dizzy spells lasting ten to fifteen minutes and occurring at least 5 to 6 times a day. (Id. at 214-16.) Because of her spells, she has sustained burns and falls. (Id. at 215.)

In her function report, she stated that she can no longer clean her house, ride her bicycle, read for pleasure, socialize in large groups, or cook. (Id. at 69.) Headaches keep her up for hours at a time during the night. (Id.) She said that reading gives her headaches and she has to read things more than once in order to comprehend them. (Id. at 72.) She loses her train of thought and has difficulty paying attention. (Id. at 74.) She gets very disoriented and stress causes her anxiety. (Id. at 75.) She has "stabbing pain" in her neck, shoulder, and right arm down to her wrist and fingers daily, which are cold and numb. (Id. at 76.)

B. Medical Evidence/Treating Physicians

The medical evidence before the ALJ is briefly summarized below.

1. Dr. David Besser - Board Certified Neurologist

Dr. David Besser saw Plaintiff on three occasions in 2002. (Tr. at 182, 184, 192-93.) Dr. Besser first examined Plaintiff on May 9, 2002. (Id. at 192-93.) Plaintiff complained of vertigo*fn3 with "blurry or jumping vision" which lasted for one week and then resolved. (Id. at 192.) She also complained of light sensitivity and increased sensitivity to loud noises. (Id.) Although her condition resolved significantly, she complained of episodic feelings of imbalance which continued until April 12, 2002. (Id.) Dr. Besser noted that prior to April 12, 2002, Plaintiff began taking Zoloft which helped her. (Id.) He also noted that a CT scan of her brain and sinuses showed no significant abnormalities. (Id.) Dr. Besser diagnosed Plaintiff with possible vestibulopathy*fn4 and ordered a series of testing to rule out other conditions. (Id. at 193.)

Plaintiff was next examined by Dr. Besser on July 29, 2002. (Id. at 184.) Plaintiff presented with the same complaints but also indicated that she had a "buzziness stemming from her head, especially when she moves her neck to the right or upwards." (Id.) Dr. Besser noted that a May 2002 MRI of the cervical spine revealed mild congenital spinal stenosis*fn5 with borderline compression of the spinal cord as well as a disc protrusion at C3-C4. (Id.) Dr. Besser suspected vestibulopathy with a possible cervical disc disease involvement. (Id.) He recommended balance therapy and further testing. (Id.)

On November 4, 2002, Plaintiff complained to Dr. Besser of intermittent dizziness, a buzzing feeling in her head, and occasional forgetfulness. (Id. at 182.) Dr. Besser noted that Plaintiff had been treated by Dr. Allen Cohen, O.D. with prism glasses and therapy for her dizziness, and by Dr. Kevin Mullins, M.D. for neck and shoulder problems. (Id.) Dr. Besser noted that Plaintiff was alert, coherent, and quite fluent. (Id.) He diagnosed vestibulopathy and cervical disc disease. (Id.) He could not explain her complaints of buzzing in the brain and recommended that she undergo a neurosurgical consultation to address her subjective complaints. (Id.)

2. Dr. Kevin J. Mullins - Board Certified Neurological Surgeon

Dr. Kevin J. Mullens, a neurosurgeon, saw Plaintiff on referral from Dr. Besser on four occasions in 2002. (Id. at 100-07.) Dr. Mullens first examined Plaintiff on June 17, 2002 for her complaints of dizziness and neck and right arm pain. (Id. at 105-06.) Her dizziness was "recurrent and associated with nausea." (Id. at 105.) Dr. Mullens noted that carotid doppler studies, an EEG and a CT scan of her brain were normal, although her electronystagmography ("ENG")*fn6 studies were abnormal and suggested a "positional sensitive right peripheral neuropathy." (Id.) An MRI revealed a central disc herniation at C6-C7 with moderate spinal stenosis and some milder neural foraminal narrowing on the right side. (Id. at 106.) Dr. Mullins opined that Plaintiff's neck pain and some of her right arm pain could be related to the disc herniation. (Id.) However, he stated that it would be difficult to correlate the dizziness and nausea to the cervical problems, which he believed more likely related to an ear disorder. (Id.) He recommended physical therapy for her neck discomfort and electrodiagnostic studies to evaluate any radiculopathy.*fn7 (Id.)

Dr. Mullins saw Plaintiff again in July 2002. (Id. at 104.) Plaintiff again complained of buzzing in her ear and some vertigo for which she was undergoing continued balance therapy. (Id.) Because Plaintiff's EMG studies were incomplete, Dr. Mullens asked Plaintiff to schedule another appointment. (Id.)

Dr. Mullins next examined Plaintiff on September 11, 2002. (Id. at 102-03.) Plaintiff complained of localized neck discomfort with decreased range in motion. (Id. at 102.) Plaintiff denied any dizziness at that time. (Id.) Dr. Mullins noted the findings of spondylosis*fn8 discomfort at C5-6 but reported that in the absence of a severe disc herniation and in light of negative electrodiagnostic studies, Plaintiff was not a candidate for surgery. (Id.) He recommended pain management if her neck pain continues. (Id.)

In her final examination, on December 11, 2002, Plaintiff complained of localized neck and right shoulder discomfort with decreased range of motion. (Id. at 100.) Examination showed good motor strength with symmetric reflexes. (Id.) He noted that due to her negative electrodiagnostic studies and intact neurological exam, she was not a candidate for surgery. (Id.) However, he did recommend pain management given the "protracted nature of her symptoms." (Id.)

3. Dr. Steven A. Rosen - Board Certified Neurologist

Plaintiff was treated by Dr. Steven A. Rosen twice in 2002 (id. at 183, 185-88), twice in 2003 (id. at 168, 180-81), and once in 2004 (id. at 167). Dr. Rosen first examined Plaintiff in June 2002 and performed several tests which were suggestive of positionally sensitive right peripheral vestibulopathy. (Id. at 188.)

On August 5, 2002, Dr. Rosen performed a binocular vision screening study to test for eye muscle dysfunction. (Id. at 183.) On the basis of Plaintiff's abnormal binocular visual screen, Dr. Rosen recommended a formal oculomotor evaluation. (Id.)

Dr. Rosen next examined Plaintiff on January 23, 2003. (Id. at 180-81.) Plaintiff reported that she had been asymptomatic until March 2002 when she began to experience dizziness and balance instability which worsened on motion. (Id. at 180.) Plaintiff expressed frustration over her inability to think clearly and her difficulty multi-tasking. (Id.) Physical examination was unremarkable. (Id.) Dr. Rosen recommended that Plaintiff take Zoloft at bedtime and that she undergo additional neuropsychological and cognitive testing as well as postureography testing to fine-tune her balance instability treatment. (Id. at 181.) He also suggested that Plaintiff try a stimulant such as Ritalin. (Id.)

Dr. Rosen saw Plaintiff again in April 2003. (Id. at 168.) He noted that Plaintiff had a history of chronic dizziness but had "some definite improvement" with ocular rehabilitation therapy. (Id.) Plaintiff still had some dizziness with rapid movements. (Id.) Dr. Rosen reported that computerized dynamic postureography completed in February 2003 confirmed vestibular dysfunction ...

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