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Brouillette v. Astrue

United States District Court, N.D. New York

September 28, 2012

Diana J. BROUILLETTE, Plaintiff,
Michael J. ASTRUE, Commissioner of Social Security, Defendant.

Page 329

Michael P. Desantis, Michael V. Desantis, Desantis, Desantis Law Firm, Utica, NY, for Plaintiff.

Vernon Norwood, Social Security Administration, Office of Regional General Counsel, New York, NY, for Defendant.


LAWRENCE E. KAHN, District Judge.


A. Procedural History

On November 3, 2008, Diana Jean Brouillette (" Plaintiff" ) filed a Title II Application for disability and social security disability insurance benefits. Dkt. No. 8-2 (" Transcript" ) at 11. Subsequently, on November 21, 2008, Plaintiff filed a Title XVI Application for supplemental social security income under the Social Security Act. Id. In both Applications, Plaintiff alleged that the onset of her disability as well as the date she resigned from her employment was May 2, 2007. Id. at 11, 30.

On February 4, 2009, the Commissioner denied both Applications, and on March 23, 2009, Plaintiff filed a timely written request for a rehearing before an Administrative Law Judge (" ALJ" ). Id. at 11. Accordingly, on April 22, 2010, a video hearing was held in Syracuse, New York before ALJ John P. Ramos. Id. Plaintiff, represented by counsel, appeared in Utica, New York and testified at the hearing. Id. On August 9, 2010, ALJ Ramos issued a decision finding that Plaintiff was not entitled to disability insurance benefits as she was not disabled under §§ 216(i) and 223(d) of the Social Security Act, nor was she entitled to supplemental social security income as she was not disabled pursuant to § 1614(a)(3)(A) of the Social Security Act. Id. at 22-23.

The present action was commenced pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) following the denial of Plaintiff's requested review of the ALJ decision by the Appeals Council on May 4, 2011. Tr. at 2-5. Defendant interposed an Answer on September 21, 2011. Dkt. No. 7. Plaintiff filed a Brief in Support of the present action on November 2, 2011. Dkt. No. 11. Defendant filed a Brief in opposition on December 19, 2011. Dkt. No. 13. On April 2, 2012, the Honorable Gary L. Sharpe, Chief United States District Judge for the Northern District of New York issued an

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Order terminating the referral to Magistrate Judge David E. Pebbles and directing the Court to decide this case directly without a Report and Recommendation. Dkt. No. 14.

B. Medical Evidence

1. Dr. Kalyani Ganesh

Plaintiff was seen by Dr. Ganesh on January 8, 2009 for a consultative internist evaluation, during which Plaintiff informed the doctor that she had ceased employment in May 2007. Tr. at 20. She informed Dr. Ganesh that she suffered from asthma, mitral valve prolapse, high blood pressure, underactive thyroid, allergies, vocal cord dysfunction, upper airway restriction, rhinitis, anxiety, fibromyalgia and depression. Id. Dr. Ganesh performed a Pulmonary Function Test and a physical examination that day, both of which reported normal results. Id.; Dkt. No. 8-8 at 81. Dr. Ganesh noted that Plaintiff did not demonstrate any gross limitations in her capacity for sitting, standing, walking, or the use of her upper extremities. Tr. at 20. Moreover, although Dr. Ganesh diagnosed Plaintiff with fibromyalgia, his assessment did not indicate the basis of such diagnosis, nor did he assess any motor or sensory deficiencies or musculoskeletal restrictions as a result of such diagnosis.[1] Id. at 18. Based on his examination, however, Dr. Ganesh concluded that Plaintiff should avoid known respiratory irritants. Id. at 20.

2. Dr. David Petrie

Dr. Petrie, a family medicine physician, had been treating Plaintiff since May 2005. Id. at 20. Dr. Petrie assessed clinical findings of abnormal oropharynx (red) and nasal congestion and diagnosed Plaintiff with Sick Building Syndrome. Id. at 18. As a result, Dr. Petrie prescribed Nasalcrom; however, on May 31, 2005, Plaintiff reported poor response to the medication. Id. Further, on June 1, 2005, Plaintiff indicated that she was having voice problems at her workplace. Id. Dr. Petrie felt Plaintiff had allergic rhinitis that was aggravated by the air conditioning at her workplace and accordingly recommended that she take Advair and Albuterol, since he noted that her nasal congestion continued even with the use of Nasalcrom. Id.

3. Dr. Brian C. Alessi

In 2006, Dr. Petrie referred Plaintiff to an allergist, Dr. Alessi, who performed a skin test on Plaintiff. Tr. at 18. The test revealed that Plaintiff tested positive to several allergens. Id. Dr. Alessi also determined that Plaintiff suffered from allergic rhinitis, allergic asthma, and environmental exposure. Dkt. 8-7 at 29. Dr. Alessi concluded that Plaintiff was significantly allergic and that her symptoms seemed to be triggered by her work environment. Id. at 29; Tr. at 18. He prescribed different medication and recommended that Plaintiff try to work in a place other than the record room in which the air conditioning was located. Tr. at 18.

4. Dr. Eric Yoss

Throughout 2006, Plaintiff was also treated by Dr. Yoss, a pulmonary disease specialist. Tr. at 18. After conducting a physical examination, Dr. Yoss determined that Plaintiff's throat was clear but assessed that she had significant sinus disease. Id. Based on Dr. Yoss's recommendation, a pulmonary function test was performed on November 15, 2006, and it revealed mild obstructive lung disease. Id. In addition, on the same day, a computerized tomography (CT) scan of the

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paranasal sinuses was performed but showed no evidence of mucoperiosteral disease or mass/lesion. Id. As a result, Dr. Yoss treated Plaintiff with Advair and Albuterol two to three times a week. Id. Subsequently, on November 29, 2006, Plaintiff indicated that she felt her condition was steadily improving and that was asymptomatic unless she was exposed to certain irritants. Id. Dr. Yoss, upon examination of Plaintiff, opined that she suffered from minimal nasal congestion and that her symptoms likely represented a mild case of reactive airways dysfunction syndrome or perhaps from exposure related to asthma. Id. at 19. Dr. Yoss concluded that although Plaintiff's condition had improved with modest symptoms remaining, he still suggested she had mild reactive airways disease. Id. at 19.

5. Dr. José R. Rabelo

Dr. Rabelo, a consulting expert physician, examined Plaintiff and provided an evaluation on May 20, 2010. Dkt. No. 8-8 at 149-51. He determined that Plaintiff had a history of asthma, underactive thyroid and fibromyalgia. Dkt. No. 8-9 at 8. Dr. Rabelo concluded that Plaintiff should avoid even moderate but not all exposure to fumes, odors, dusts and gases. Tr. at 21.

6. Dr. Michael B. Lax

The Record indicates that Plaintiff was also treated by Dr. Lax, an occupational medicine doctor between 2006 through 2010. Dkt. No. 8 (Exhibits 8F, 10F, 20F-22F); Dkt. No 8-7 at 86. On October 18, 2006, Dr. Lax diagnosed Plaintiff with asthma, allergic rhinitis and vocal cord dysfunction, all of which were attributed to Plaintiff's workplace environment and mold exposure. Tr. at 19. At that time, Dr. Lax suggested that Plaintiff was capable of working part-time (20-30 hours). Id. Further, based on an examination date of October 10, 2007, Dr. Lax assessed that in addition to aforementioned diagnoses, Plaintiff also suffered from upper airway ...

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