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Sorber v. Commissioner of Social Security Administration

United States District Court, D. Arizona

January 23, 2019

Linda Lorraine Sorber, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Bridget S. Bade United States Magistrate Judge

         Plaintiff Linda Lorraine Sorber seeks judicial review of the decision of the Commissioner of Social Security (the “Commissioner”) denying her application for benefits under the Social Security Act (the “Act”). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in accordance with Local Rule of Civil Procedure 16.1. For the following reasons, the Court reverses the Commissioner's decision and remands for a determination of benefits.

         I. Procedural Background

         On March 11, 2013, Plaintiff applied for social security disability insurance and supplemental security income benefits under the Act. (Tr. 13, 47.)[1] After the Social Security Administration (“SSA”) denied Plaintiff's initial application and her request for reconsideration, she requested a hearing before an administrative law judge (“ALJ”). (Tr. 13.) After conducting a hearing, on February 18, 2016, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 23-26.) On July 16, 2017, the Social Security Administration Appeals Council denied Plaintiff's request for review. (Tr. 1-6.) Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         II. Administrative Record

         The record before the Court establishes the following history of diagnoses and treatment related to Plaintiff's impairments, including degenerative disc disease, cervical and lumbar spondylosis, Meniere's disease/vestibular migraines, osteopenia, and chronic pain syndrome. (Tr. 15.) The record also includes several medical opinions.

         A. Relevant Treatment History

         1. Treatment for Meniere Disease, Dizziness, and Headaches

         In 2012, Plaintiff began seeing Terrance J. Kwiatkowski, M.D., for dizziness and headaches. (Tr. 513-14.) In August 2012, Dr. Kwiatkowski performed surgery for “left Meniere disease with endolymphatic hydrops.” (Tr. 508.) In November 2012, Plaintiff had surgery for “left serous otitis media with eustacian tube dysfunction.” (Tr. 493.) Plaintiff's dizziness and headaches persisted and in November 2012 Dr. Kwiatkowski noted that Plaintiff had been “spinning” since the night before her appointment. (Tr. 487-88.) In December 2012, Plaintiff presented to the emergency room with dizziness. (Tr. 425-30.)

         During a January 2013 appointment with Dr. Kwiatkowski, Plaintiff reported “left ear was full/dizzy/hard to walk/unsteady/feels strange/imbalanced. [No] spinning today. Constant dizziness.” (Tr. 484.) At a March 2013 appointment, Plaintiff reported “room spinning [for] 1 week.” (Tr. 481.) In April 2013, Dr. Kwiatkowski noted that Plaintiff reported dizziness and that the “room spins.” (Tr. 787-88.) In May 2013, Plaintiff complained of unsteadiness. (Tr. 706.) Dr. Kwiatkowski noted that “balance therapy is critical for her problem and that in addition to her Meniere's disease her benign paroxysmal positional vertigo is a huge issue with her as is her eustacian tube dysfunction . . . which has gotten worse with time despite[] lack of true spinning vertigo.” (Id.) Dr. Kwiatkowski opined that Plaintiff had “multifactorial balance disorder benign positional vertigo Meniere's disease and left eustacian tube dysfunction.” (Tr. 702.) Dr. Kwiatkowski recommended that Plaintiff attend balance therapy as many times as possible. (Tr. 707.) Two weeks later, Dr. Kwiatkowski tested Plaintiff's dizziness with several physical maneuvers, and noted her dizziness was improving, but “during the [Epley] maneuver she does spin.” (Tr. 702.)

         In May 2013, Plaintiff went to the emergency room with dizziness that was not relieved by medication. (Tr. 560.) In May and June 2013, Plaintiff had several balance therapy appointments. (Tr. 552.) Upon discharge, physical therapist David Lowe stated that Plaintiff's “vertigo is not improving despite manual therapy (cannalith repositioning), clinical balance retraining, [and] daily home Epley maneuvers.” (Id.) In July 2013, Dr. Kwiatkowski removed Plaintiff's left ear tube, and suggested she may have temporomandibular joint (“TMJ”) disorder. (Tr. 699.) He noted that Plaintiff had continued unsteadiness. (Id.) In July 2013, an MRI of Plaintiff's brain revealed that Plaintiff had left-sided mastoiditis and alteration of deep white matter in the frontal lobes, suggesting possibly mild ischemic changes, migraine, or vasculitis. (Tr. 596.)

         In July 2013, neurologist M.A. Nayer, M.D., noted that Plaintiff had intermittent dizziness that worsened with changes in position or standing, and tinnitus and hearing impairment on the left side. (Tr. 750.) Dr. Nayer observed reduced sensation in Plaintiff's lower extremities and a positive Romberg sign. (Id.) Plaintiff went to the emergency room in August 2013 with dizziness and headaches. (Tr. 610-13.) In August 2013, an EEG was normal. (Tr. 759.) During a September 2013 appointment with Dr. Nayer, Plaintiff reported that she was dizzy, sometimes confused and disoriented, felt off balance, had difficulty walking, had bilateral lower extremity pain, difficulty staying asleep, and daytime fatigue. (Tr. 748.) During a November 2013 appointment with Dr. Nayer, Plaintiff reported neck pain that sometimes radiated to her shoulders, impaired sleep because of pain, and continued dizziness. (Tr. 746.) Dr. Nayer observed that Plaintiff had reduced sensation in her lower extremities, reduced proprioception, and a positive Romberg sign. (Id.)

         During a January 2014 appointment with Dr. Kwiatkowski, Plaintiff reported vertigo, ear pain, and worsening spinning sensations. (Tr. 695.) Plaintiff had two physical therapy appointments in March and April 2014 and upon discharge the physical therapist noted that home exercise initially “greatly helped” Plaintiff's vertigo, but her symptoms returned. (Tr. 736.) The physical therapist recommended that Plaintiff obtain “a single-point cane for community ambulation.” (Id.) In April 2014, Plaintiff went to the emergency room with dizziness. (Tr. 726-27.)

         In July 2014, Plaintiff had a consultation for vertigo with Ian Crain, M.D., at the Barrow Movement Disorders Clinic. (Tr. 859.) Plaintiff described intermittent but daily room-spinning episodes, which lasted two to three minutes, occurred randomly, and were worsened by movement. (Id.) She also had ear fullness, tinnitus, and headaches. (Id.) She reported that no previous treatments had been helpful. (Id.) Positioning Plaintiff during the examination caused “intense vertigo with lying down that caused her to be very anxious and nauseous.” (Tr. 861.) Dr. Crain observed that Plaintiff's “balance was intact, ” she had a positive Romberg's sign, her tandem gait was abnormal, heel and toe walking was normal, and Plaintiff walked without assistance. (Id.) Dr. Crain opined that Plaintiff's “history and exam [were] concerning for vestibular migraines, ” and prescribed nortriptyline. (Tr. 862.) At a September 23, 2014 visit with Dr. Crain, Plaintiff reported that her symptoms improved for about one month with the new medication, but then returned to baseline and she was experiencing vertigo daily. (Tr. 855.) Dr. Crain observed that Plaintiff's “balance was intact, ” she had a positive Romberg's sign, her tandem gait was abnormal, heel and toe walking was normal, and Plaintiff walked without assistance. (Tr. 857.) Dr. Crain assessed recurrent vestibular migraines with vertigo and increased the dosage of nortriptyline. (Tr. 858.)

         2. Treatment for Spinal Impairments and Joint Pain

         In April 2014, Dr. Nayer noted that Plaintiff had ongoing neck pain, disrupted sleep, and dizziness. (Tr. 743.) Dr. Nayer diagnosed cervical spondylosis without myelopathy and prescribed Norco. (Tr. 744.) In August 2014, a cervical spine MRI revealed generalized degenerative changes of the discs and moderate left-sided narrowing at the C5-6 level. (Tr. 853.) In August 2014, a lumbar spine MRI scan revealed advanced degenerative changes of the lumbar discs with marked disc space narrowing at ¶ 4-5, some associated discogenic changes involving vertebral endplates, a small, generalized subligamentous disc protrusion at ¶ 4-5, and mild stenosis. (Tr. 854.) In October 2014, Dr. Nayer observed that Plaintiff had a positive Romberg sign, and decreased lower extremity sensation and proprioception. (Tr. 875-76.) In October 2014, a lower extremity electromyography showed no evidence of lumbar radiculopathy or neuropathy. (Tr. 877.)

         In January 2015 Plaintiff had lumbar medial branch nerve blocks. (Tr. 914-15.) In February 2015, Plaintiff had cervical medial branch nerve blocks. (Tr. 905-06.) During a February 2015 appointment, Dr. Nayer observed that Plaintiff had decreased sensation in her lower extremities and a positive Romberg sign. (Tr. 873.) Between October 2014 and February 2015, Plaintiff had physical therapy for neck and back pain. (Tr. 878-97.) Treatment notes from February 2015 indicate that Plaintiff had stiffness in her cervical spine but completed her exercises without fatigue and that she had pain with rotation. (Tr. 878-79.)

         Mary Janikowski, D.O., and other providers from the Tri State Pain Institute treated Plaintiff for facial pain/TMJ dysfunction, spine pain, joint pain, and limb pain in 2014 and 2015. (Tr. 898-99.) In 2014, Dr. Janikowski noted that Plaintiff reported pain in her cervical spine, shoulders, arms, face, and lumbar spine, and that she complained of headaches. (Tr. 965-72, June 2014; Tr. 958-64, July 2014; Tr. 951-57, August 2014; Tr. 942-48, September 2014; Tr. 934-40, October 2014; Tr. 927-33, November 2014; Tr. 920-26, December 2014.) In 2015, Dr. Janikowski observed that Plaintiff had ongoing symptoms of cervical muscle tenderness, increased pain in her cervical and lumbosacral spine with movement or positions (flexion, extension, and bilateral bending), positive facet loading, lumbar spine muscle tenderness, and increased pain with range of motion. (Tr. 1012, 1019, 1027, 1035, 1042, 1049, 1059, 1066.)

         B. Opinion Evidence 1. State Agency Reviewing Physicians

         As part of the state agency initial determination in November 2013, Ernest Griffith, M.D., reviewed the record and completed a residual functional capacity (“RFC”) assessment. (Tr. 87-89, 104-05.) He assessed Plaintiff with the physical ability to perform light exertional activities, with an unlimited ability to climb ramps or stairs, the ability to occasionally climb ladders, ropes, or scaffolds, and the need to avoid “concentrated exposure” to fumes, odors, dusts, gases, poor ventilation, and hazards such as “machinery, heights, etc.” (Tr. 87-89, 104-05, duplicates for SSDI and SSI claims.)

         In June 2013, as part of the reconsideration determination, John Kurtin, M.D., completed an RFC assessment and made findings identical to those of Dr. Griffith. (Tr. 124-26, 143-45; compare Tr. 88 and 104 with Tr. 125 and 144.)

         2. Treating Physicians

         In January 2014, Dr. Kwiatkowski completed a Medical Assessment of Ability to Do Work Related Physical Activities. (Tr. 687.) Dr. Kwiatkowski noted that Plaintiff had “Dizziness-Complicated Meniere's Disease, ” with five episodes of dizziness per day, lasting up to five minutes, that were decreased by rest with either reclining or lying down. (Id.) Dr. Kwiatkowski also opined that Plaintiff had “total limitation” in exposure to unprotected heights, and moderate limitations in being around moving machinery, exposure to marked changes in temperature or humidity, driving automotive equipment, and exposure to dust, fumes, and gases. (Tr. 688.)

         In April 2015, Dr. Janikowski completed an assessment of Plaintiff's physical work-related abilities. (Tr. 1002.) Dr. Janikowski opined that Plaintiff could sit for less than three hours and stand or walk for less than two hours in an eight-hour workday. (Id.) Dr. Janikowski opined that Plaintiff needed ten to fifteen-minute rest periods and stated that, “sometimes [patient] has to lie down up to 4 to 6 times a day.” (Id.) Dr. Janikowski opined that Plaintiff's “moderately severe” pain, fatigue, dizziness, and headaches that would cause Plaintiff to be “[o]ff task 16-20% of an 8-hour work day.” (Tr. 1003.) Dr. Janikowski also opined that Plaintiff's impairments would cause her to miss six or ...


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