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Pembroke v. Colvin

United States District Court, W.D. New York

April 28, 2014

CAROLYN COLVIN, Commissioner of Social Security, Defendant.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Valoree Lynn Pembroke ("Plaintiff" or "Pembroke"), represented by counsel, brings this action pursuant to Title II of the Social Security Act ("the Act"), seeking review of the final decision of the Acting Commissioner of Social Security ("the Commissioner") denying her application for Disability Insurance Benefits ("DIB"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. ยงยง 405(g), 1383(c). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

II. Procedural History

Plaintiff protectively filed an application for DIB on November 17, 2008, alleging disability commencing January 2, 2004. T.92-98.[1] This application was denied on February 5, 2009, T.39, 41-44. Plaintiff also filed an application for supplemental security income ("SSI") under Title XVI on December 31, 2009. On February 19, 2010, Plaintiff appeared, with her attorney for a hearing before Administrative Law Judge John P. Costello ("the ALJ"). Vocational expert Julie A. Andrews also testified. See T.765-99. On March 19, 2010, the ALJ issued a decision finding that Plaintiff was not disabled. T.385-99. Plaintiff requested review by the Appeals Council, T.400-04, which vacated the hearing on November 24, 2010, and remanded the case to the ALJ for further administrative proceedings. T.407-10.

At the supplemental hearing held on February 21, 2012, see T.800-35, Plaintiff appeared with her attorney and testified, and the ALJ also took testimony from the VE. On March 22, 2012, the ALJ issued another unfavorable decision. T.18-31. On February 14, 2013, the Appeals Council denied Plaintiff's request for review of the ALJ's decision on the Title II claim for DIB, and dismissed Plaintiff's request for review of the ALJ's decision on the Title XVI claim for SSI. T.9-19. The ALJ's decision thus became the Commissioner's final decision.

Plaintiff then commenced the instant action. Only the following time-period is at issue here: January 2, 2004, Plaintiff's alleged onset date of disability, through March 31, 2007, the date she was last insured for DIB.

III. The Administrative Record

A. Medical Evidence Prior to March 31, 2007, the Date Last Insured

On February 24, 2003, Plaintiff was seen by her primary care physician, Steven Howard, M.D., complaining of dizziness related to her benign positional vertigo that had recently become more persistent. Dr. Howard refilled her meclizine prescription. T.244. On March 6, 2003, Plaintiff again saw Dr. Howard, reporting that she had woken up the day before with "severe" vertigo symptoms and nausea, felling as if she "just got off an amusement park ride". T.243. The results of the brain MRI ordered by Dr. Howard showed hypertrophy of the inferior turbinate of the nasal cavity on the left side with hyperintense T2 signal, indicating chronic inflammatory change. T.519.

Plaintiff returned to see Dr. Howard on March 25, 2004, for reevaluation of her vertigo symptoms. Dr. Howard continued her meclizine prescription, and referred her to otorhinolaryngologist James Hadley, M.D. T.242. On September 16, 2004, Plaintiff saw Dr. Howard for her vertigo, knee pain, and depression. She reported recurrences of her vertigo symptoms 3 to 4 times per week which prevented her from driving. Plaintiff explained she had been experiencing depression, mood swings, and suicidal ideation. T.239. Plaintiff expressed an interest in counseling for her depression and anxiety. Id.

Plaintiff saw Paul Dutcher, Jr., M.D. on October 12, 2004, regarding her dizziness and migraine headaches. Plaintiff was referred to Dr. Dutcher, a specialist in otolaryngology, in October 2004, for her vertigo and as-yet undiagnosed migraine headaches. She reported headaches occurring, sometimes in conjunction with her vertigo, that caused her to have throbbing pain in her head and to feel disoriented, foggy and have difficulties talking, remembering, and walking. T.479. In April 2004, these episodes increased in frequency to 2 to 3 times per week, sometimes once per day. Id . She generally would take meclizine and fall asleep for several hours. There was some improvement, but then in October 2004, they began increasing again. Id . Dr. Dutcher opined that the dizziness was not otologic; with the association of the headaches, it possibly represented a migraine area. T.480. Accordingly, Dr. Dutcher suggested proceeding with a neurology evaluation. T.480.

On November 16, 2004, Plaintiff returned to see Dr. Howard for her depression, knee pain, and vertigo. She reported a decrease in her depression but an increase in anxiety symptoms, along with feelings of jitteriness when taking fluoxetine. She had some improvements with regard to her knees as well as with her vertigo. However, she still was feeling "a little bit unsteady." T.502.

Following Dr. Dutcher's suggestion of a neurological work-up, Plaintiff was seen by neurologists Anthony Maroldo, M.D. and Curtis G. Benesch, M.D. on December 8, 2004. She was having dizziness, nausea, disorientation, and difficulty thinking and speaking. T.601. She related that over the past six months, her vertigo episodes have been accompanied by head pain, starting bitemporally and then becoming frontal in her eyes. The headaches "feel like someone digging" and cause photophobia and phonophobia. T.601. The headache pain had, at that point, become the focal feature of the vertigo spells, which were occurring on an almost-daily basis. T.601. The neurological examination was essentially normal except for a slight physiologic tremor in both hands. Drs. Maroldo and Benesch diagnosed Plaintiff with migraine headaches. T.602. They recommended she start Inderal LA and also prescribed Imitrex and Phenorgan. T.601-03.

Plaintiff saw Steven Dina, M.D., a consultative examiner for the Social Security Administration ("the SSA"), on December 14, 2004. She indicated to Dr. Dina that her chief complaints were vertigo, depression, anxiety, and knee pain. T.215. Her current medications were listed as the following: Meclizine 25 mg; Fluoxetine 20 mg; Imitrex 25 mg; and Inderal 80 mg. T.215. On examination, Plaintiff could squat to 50% of normal. An X-ray of the right knee showed slight narrowing of the medial side of the joint. T.217. Dr. Dina assessed Plaintiff's prognosis as "fair", noting that she has "mild limitations" with regard to her knees and should avoid activities with repetitive bending, squatting, kneeling and stair climbing. With regard to her vertigo, Dr. Dina advised her to avoid heights and rotational movements. T.217.

On February 1, 2005, Madan Mohan, Ph.D., completed a Psychiatric Review Technique Form ("PRTF") at the SSA's request. After reviewing the medical record, Dr. Mohan indicated that Plaintiff has an affective disorder and anxiety-related disorder. T.187. He found that she was moderately limited with regard to maintaining social functioning; mildly limited with regard to activities of daily living; and mildly limited in her ability to maintain concentration, persistence or pace. T.197. Dr. Mohan also completed a mental residual functional capacity assessment on the same day and indicated that Plaintiff was moderately limited in her abilities to do the following: perform activities within a schedule; maintain regular attendance; be punctual within customary tolerances; work in coordination with or proximity to others without being distracted by them; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; and to set realistic goals or make plans independently of others. See T.201-03.

Plaintiff returned to see Dr. Howard on February 9, 2005. Despite starting on Inderal LA, Plaintiff was still experiencing migraine episodes twice weekly, although they were much less severe. Dr. Howard recommended she continue with fluoxetine for her depressive symptoms. T.620.

On March 23, 2005, Plaintiff returned to see Dr. Maroldo regarding her migraine headaches. She was taking Imitrex (50 mg) 3 times a week as a headache-abortive agent. T.206. Dr. Maroldo indicated that she presented with a "quite depressed" affect. Examination revealed mild bilateral postural hand tremors. He made no changes to her medications, but noted that if her cognitive problems persisted, he would consider switching her gabapentin to another agent such as propanolol, to try to reduce the cognitive side-effects. T.206-07.

On April 13, 2005, Plaintiff saw Dr. Howard for her depression. Since her last appointment, her fluoxetine dosage was increased and she had begun monthly counseling sessions. She reported less frequent migraines and was working on losing weight and exercising. T.503.

On May 9, 2005, Plaintiff was admitted to the hospital following a car accident. Based on her reports of pains in her cervical and lumbar spine and in her right knee, she underwent X-rays of the cervical and lumbar spine and of the right knee with normal results. T.550-52. She was discharged later that day, on Naprosyn for pain. T.566.

Dr. Howard saw Plaintiff on July 15, 2005. She reported elevated blood pressure, for which Dr. Howard suggested therapeutic lifestyle changes and a renal artery ...

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