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Suzanne D. v. Berryhill

United States District Court, D. Vermont

November 20, 2019

SUZANNE D., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR AN ORDER REVERSING THE COMMISSIONER'S DECISION AND GRANTING THE COMMISSIONER'S MOTION TO AFFIRM (Docs. 6 & 7)

          Christina Reiss United States District Judge.

         Plaintiff Suzanne Dodge is a claimant for Disability Insurance Benefits ("DIB") benefits under the Social Security Act ("SSA"). She brings this action pursuant to 42 U.S.C. § 405(g) and moves to reverse the decision of the Social Security Commissioner (the "Commissioner") that she is not disabled.[1] The Commissioner moves to affirm. The court took the pending motions under advisement on August 3, 2018.

         Plaintiff asserts that Administrative Law Judge ("ALJ") Dory Sutker's finding that she is able to function in a typical office environment is not supported by substantial evidence on two grounds: (1) the ALJ erred in considering the medical opinions of Steven Golub, M.D., as substantial evidence of the severity of Plaintiff s condition; and (2) the ALJ failed to provide good reasons for the weight assigned to the opinions of Plaintiffs treating physicians, Tina D'Amato, D.O. and Raymond Psonak, D.O. Plaintiff asks the court to find her disabled and remand for the calculation of benefits. The Commissioner contends that Plaintiff was found not to be disabled with regard to an earlier period closer in time to her environmental exposure and is not disabled for this later time period as well.

         Plaintiff is represented by Craig A. Jarvis, Esq. The Commissioner is represented by Special Assistant United States Attorney Catharine L. Zurbrugg.

         I. Procedural History.

         On February 19, 2015, Plaintiff filed an application for DIB, alleging a disability onset date of September 28, 2010.[2] Her application was denied initially on June 3, 2015 and upon reconsideration on September 24, 2015. Plaintiff filed a timely written request for a hearing. On March 21, 2017, ALJ Sutker presided over Plaintiffs hearing from Manchester, New Hampshire. Plaintiff appeared in Burlington, Vermont and testified via video. Dr. Golub, an impartial medical expert, and Vocational Expert ("VE") James T. Parker also appeared and testified. At the hearing, Plaintiff amended her disability onset date to June 29, 2013 due to the decision of an ALJ in a previous claim, which adjudicated the period ending June 28, 2013.

         On June 1, 2017, ALJ Sutker issued a written decision finding Plaintiff not disabled. Thereafter, Plaintiff sought review of ALJ Sutker's decision by the Social Security Administration's Office of Disability Adjudication and Review Appeals Council, which denied her request for review on October 10, 2017. ALJ Sutker's determination thus stands as the Commissioner's final decision.

         II. Factual Background.

         Plaintiff was born on March 31, 1972. She has a bachelor's degree in biology and has worked as a biological technician and biologist. She currently runs a small coffee roasting business at her home to which she typically devotes two hours a week.

         Because Plaintiff does not challenge the ALJ's conclusions regarding her degenerative joint disease (knee), her adjustment disorder, and her Attention Deficit Hyperactivity Disorder ("ADHD"), the court does not address at length those impairments and their impact on Plaintiffs residual functional capacity ("RFC")- At issue in this appeal is solely the ALJ's determination that Plaintiffs Multiple Chemical Sensitivities ("MCS") do not render her disabled. Although some of the evidence of this condition predates the relevant period, it provides a useful context for analyzing Plaintiffs claims.

         A. Plaintiffs Medical History.

         In April 2009, Plaintiff began working for an environmental consulting firm as a field researcher studying the impact of wind turbines on bats and birds. In June 2009, she developed flu-like symptoms after walking through farmland in the course of her employment. On July 28, 2009, Michael Lax, M.D., M.P.H., evaluated Plaintiff for the New York Workers' Compensation Board, finding that Plaintiff reported her symptoms had worsened and she "experienced some nose burning, fatigue, and weakness" when she inhaled "a pesticide or herbicide that was directly sprayed in her car" by a farmer treating his field. Id. After Plaintiff "suffered another direct inhalation of visible pesticide/herbicide [she] noticed [an] increase in her symptoms including loss of coordination, memory loss, muscle twitching, dizziness, confusion, nausea, and irritability." Id. When her symptoms first arose, Plaintiff visited the emergency room several times. Although she was not admitted to the hospital, she asserted she was "bedridden" for approximately a month. (AR 104.)

         Plaintiff stopped work on July 10, 2009 and reported that her symptoms began to significantly improve. She no longer had nausea or dizziness; her muscle twitching was almost completely resolved; her muscle weakness was improving; she was not as fatigued; and her central nervous system functioning was greatly improved. Dr. Lax diagnosed Plaintiff with pesticide overexposure. On October 9, 2009, he wrote to Plaintiff to provide information about specific herbicides that might have triggered her symptoms. His opinion that Plaintiff had been exposed to pesticides remained unchanged and he stated that the only treatment was the elimination of pesticide exposure.

         On February 17, 2010, Plaintiff returned to Dr. Lax and described symptoms of fatigue, disorientation, nausea, increased heart rate, and flu-like symptoms. She reported feeling "dragged down and ill" (AR 445) as well as experiencing headaches and burning eyes when she was around her propane stove and new furnace. Dr. Lax noted that Plaintiff reported "similar symptoms when she goes into Home Depot or goes to the hunting and fishing show. Her symptoms persist for [twenty to thirty] minutes after she leaves the exposure area." Id. Dr. Lax diagnosed "[p]esticide over[-]exposure" and MCS. Id.

         In April 2010, Dr. Lax noted that Plaintiff continued to experience significant symptoms, although she had returned to work in March and had some improvement in her MCS. On July 6, 2010, he recorded that Plaintiff was working at home because she was unable to tolerate being in other settings such as hotel rooms.

         On September 22, 2010, Plaintiff told Dr. Lax that she had recently been diagnosed with adrenal insufficiency, had been prescribed prednisone for ten to fourteen days, and had "lost some of her fatigue and tiredness." (AR 447.) At the time, Plaintiff was not working. She advised that exposure to fumes from kerosene, diesel, propane, or perfume exacerbated her symptoms, and that exposure to cleaners caused her an instant headache, lightheadedness, and tiredness. She also experienced postnasal drainage, problems with memory and concentration, confusion, hoarseness, and tightness in her chest. She felt aching in her joints, which radiated to her muscles and mostly occurred when she was tired or cold. Following a telephone consultation in December 2010, Dr. Lax wrote:

She has a lot of fatigue. She wakes up tired, but her energy level increases by around noon. She was taking prednisone for [two and a half] months, but is now off of it. She becomes symptomatic with exposures such as getting headaches when she is exposed to burning candles. She also gets headaches[s] with pressure in the head and sinuses and generally feel[s] sick when she is around [] exhaust fumes. She gets body aches, tiredness, and irritability when she goes into the grocery store. She generally avoids exposures by grocery shopping only once a week and she goes only to one store at a time. When she has an exposure, her symptoms may last for a day or two. She did get an air purifier for her vehicles. She is unable to drink coffee or alcohol because it causes muscle aches and tiredness. She feels as though she has the flu and she also has tremors[.]

(AR448.)

         In February 2011, Dr. Lax conducted a telephone interview with Plaintiff for which he recorded the following:

[Plaintiff] had a Workers' Compensation hearing and had to drive for [eleven] hours. She developed a lot of fatigue and had to lie down a lot. She also had chest tightness, headache, lost her voice, head congestion, tremors of the hand and arm, and trouble with word finding, communicating and irritability. She is still recovering from the drive. She continues to have many of these symptoms on a regular basis. If she is not exposed, she feels pretty good. She limits her activities. She only goes to the grocery store once a week for [twenty to thirty] minutes. She tries to do outdoor activities and walks a couple of miles per day. She does not go downtown or into any big stores.

(AR 449.) Dr. Lax conducted another phone consultation with Plaintiff on May 10, 2011 in which they discussed Plaintiffs MCS symptoms.

         At an August 30, 2011 appointment with Dr. Lax, Plaintiff reported that she had been "quite careful about where she goes and what she has potentially been exposed to[.]" (AR 452.) Dr. Lax noted that, as a result, Plaintiffs MCS-related symptoms had decreased in frequency, but there had been occasions when she had been unexpectedly exposed and her symptoms had reoccurred.

         On December 12, 2011, Plaintiff reported to Dr. Lax that she was doing relatively well as she was spending "almost all" of her time at home, with the exception of occasional trips to the store. (AR 451.) However, Plaintiff noted that the oil furnace in her rental house had been turned on and the odor of the furnace caused her headaches, burning eyes, and an itchy throat.

         In addition to Dr. Lax, Plaintiff began seeing Raymond Psonak, D.O., for treatment of her MCS from November 2010 to May 2011. At an initial visit on November 4, 2010, Dr. Psonak noted that Plaintiff reported she had "developed sensitivities to many various chemicals including but not limited to chlorine, gasoline and diesel exhaust, ammonia, fragrances from soaps, insect sprays, paints, hair sprays, and tobacco smoke." (AR 782.) On December 28, 2010, Plaintiff discussed her continued reactions to certain chemicals with Dr. Psonak, and he recommended the use of Vitamin C and tri-salts to treat "acute reactions." (AR 788.) In March 2011, Plaintiff informed Dr. Psonak that she had acquired a Labrador puppy and was walking twice a day, and he recommended she try tri-salts or baking soda to treat reactions to chemicals.[3] Plaintiff returned to Dr. Psonak in May 2011 and stated that her fatigue had improved somewhat, but she had recently suffered a chemical reaction to an unspecified substance. She was pregnant with a due date of October 27, 2011 and advised that her recent blood Cortisol tests were normal, she was walking approximately two miles per day, and was planning to volunteer for a conservation/research project off the coast of Maine.

         On June 7, 2011, Dr. Psonak wrote a letter in which he noted that he had treated Plaintiff since November 2010 for medical conditions resulting from her exposure to herbicides or insecticides in the summer of 2009. These conditions included: adrenal insufficiency; fatigue; an endocrine system disorder; aluminum toxicity; and sensitivities to various chemicals such as fragrances, chlorine, tobacco smoke, ammonia, exhaust fumes, and numerous other volatile organic compounds. He stated:

If I were to put a percentage on her disability, it would vary from 20% to 90%. If she is in a clean environment such as her home where she is able to control exposures, she most likely could function up to 90%. However, in a normal workplace environment which has unpredictable exposures from such items as cleaning fluids, dust and molds from air circulation, fragrances from products used by other people, new furniture and carpeting[, ] outgas[, ] etc. she may only be able to function at 20%, or worse. For example, a cigarette smoker who has smoked a few hours ago can still outgas tobacco products which can make her sick for 2-3 days[.]

(AR781.)

         On May 16, 2012, Dr. Psonak reiterated in a letter that Plaintiff suffered from MCS and several other conditions as a result of her exposure to herbicides or pesticides during the summer of 2009. He explained:

MCS is a chronic condition in which compounding exposures increase the severity of the reaction, causing chronic inflammation of various body systems. Disabling inflammation occurs in the following systems for [Plaintiff]: Respiratory, Nervous, Circulatory, Endocrine, Digestive and Immune. Exposures also cause physical symptoms such as loss of coordination and balance, muscle tremors, blurred vision, dizziness, and nausea. Finding a suitable work environment has been extremely difficult for [Plaintiff] due to unavoidable exposures during everyday activities such as grocery shopping, [Volatile Organic Compound] off-gassing from standard office furniture, common office equipment such as printer/copiers, cleaning supplies, perfumes, etc. make most work settings highly inflammatory and potentially damaging to her health. Therefore, to remain as un-impacted as possible she must avoid areas with any presence of these chemicals.
It is difficult to put a percentage on her disability because it depends on the type of exposure, her recent exposure history that may have heightened her sensitivity level and the condition of the various body systems at the time of the exposure. In my opinion, [Plaintiff] has an average disability level of 75 percent.

(AR431.)

         On May 17, 2012, Plaintiff attended an appointment with endocrinologist Susanne Trost, M.D., to address her previously diagnosed adrenal insufficiency. Plaintiff reported feeling "greatly fatigued" over the previous three months, needing one or two naps during the day to function, and having difficulty exercising. (AR 398.) She stated that she became pregnant easily and delivered a baby by cesarean section six months prior. She denied any pain, heart palpitations, changes in hair or skin, or changes in bowel movements, and noted that she was at her pre-pregnancy weight. A physical examination yielded normal results. Plaintiff returned to Dr. Trost for a follow-up appointment on August 30, 2012 and reported that her fatigue was "currently ok[ay.]" (AR 401.) She reported no muscle weakness or dizziness and physical examination results remained normal. Dr. Trost's treatment notes do not indicate that Plaintiff reported any chemical exposures in connection with her symptoms.

         In July 2012, Plaintiff presented to Copley Hospital with a right hamstring strain, where she was treated by Vincent J. Faraci, Certified Athletic Trainer, who noted that Plaintiff had a history of two right knee injuries, in 1996 and 2000 respectively, both of which resulted in surgeries. Plaintiff reported experiencing pain in her right knee and a pinching sensation when walking. A physical examination revealed a normal gait. Mr. Faraci opined that Plaintiff "has symptoms of mild right knee medial compartment degenerative joint disease. She also displays right patellofemoral syndrome with left [sacroiliac] joint dysfunction and subluxation." (AR 480.)

         From August 2013 through 2015, Plaintiff was treated by Tina D'Amato, D.O., for MCS. At an August 28, 2013 appointment, Plaintiff reported that she had a reaction when she entered an old warehouse where her husband worked and "immediately got congested and felt yucky." (AR 411.) She and her family then attended a fair, and she described feeling flushed, dizzy, and nauseated. Plaintiff wondered whether the heat and her menstrual cycle may have played a role in causing her symptoms. A physical and psychiatric examination revealed normal results. In a November 2013 appointment with Dr. D'Amato, Plaintiff reported that "[t]ri[-]salts worked well for her and that she also used grapefruit seed extract" to treat her MCS. (AR 409.) She traveled to a family wedding without major issues and took tri-salts as soon as she realized she had an unspecified chemical exposure. She reported experiencing some symptoms while in San Francisco but believed this was primarily attributable to smog. Physical and psychiatric examination results remained normal.

         Plaintiff saw Dr. D'Amato again on July 14, 2014 to receive follow-up care for her MCS and to discuss fertility issues. Plaintiff reported that her MCS was under control because she was not frequently leaving her house. When she did have exposures, they were generally minimal and she used tri-salts to help limit her reactions. Her physical examination was normal. At an October 28, 2014 appointment, Dr. D'Amato noted that Plaintiff was "doing well" and that her house was the safest place for her to be. (AR 405.) Plaintiff went to the grocery store once per week, was taking an adrenal support formula, and used tri-salts if she had a chemical exposure. Physical and psychiatric examinations were normal. Dr. D'Amato stated:

[Plaintiff] is doing well with her MCS and is not having any big exposures and is still able to get out of her house[.] [I] agree with her reapplying for disability as it is quite difficult for persons with MCS to work outside their homes because of the increased risks of chemical exposure and then the resulting absences during recovery from exposures that can be difficult for employers to understand.

(AR 406.)

         On January 27, 2015, Dr. D'Amato noted that use of a nasal spray made Plaintiff irritable, groggy, and unwell, but that she felt better once she stopped using it. Plaintiff avoided chemical triggers as much as she could, but she did not isolate herself. She reported that she "had to leave story time at the library due to another mother's perfume." (AR 479.) She took tri-salts as needed and was not experiencing exposures every day, leading to much shorter reactions. Her physical and psychiatric examinations were normal.

         In March 2015, Gabriel Archdeacon, Naturopathic Doctor, wrote a letter stating that in recent years, Plaintiffs health had "seemed pretty manageable." (AR 517.) Although Plaintiff complained of fatigue, she did not attribute it to chemical exposure or complain of symptoms related to chemical exposure. In his letter, Mr. Archdeacon stated that he was not aware of any impairments that would limit Plaintiffs ability to perform activities related to work at that time. Plaintiff had subsequent appointments with Mr. Archdeacon in May, June, July, and October 2015, and in May 2016.[4]

         On December 22, 2015, Dr. D'Amato completed a "Chemical Sensitivity Residual Functional Capacity Questionnaire[.]" (AR 642.) She stated that she started treating Plaintiff on August 28, 2013 and saw her approximately twice per year. She reported that although there were no laboratory results or pulmonary function tests to show MCS, clinical findings including flushed skin, mild distress, nausea, dizziness, difficulty finding words, and balance difficulties supported an MCS diagnosis. Dr. D'Amato noted that Plaintiffs symptoms also included muscle weakness, fatigue, diarrhea, memory loss, confusion, muscle twitching, loss of coordination, nausea, irritability, and nasal irritation, and that Plaintiff first began to experience these symptoms in June 2009.

         Dr. D'Amato indicated that Plaintiff suffered from attacks due to chemical sensitivity whenever she was exposed to a chemical trigger, and that those reactions lasted from several hours up to several days. She reported that Plaintiffs ...


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