Bristol v. Commissioner of Social Security

Filing 13

OPINION AND ORDER denying 7 MOTION for Order Reversing the Decision of the Commissioner; granting 11 MOTION for Order Affirming the Decision of the Commissioner. The case is therefore dismissed. Signed by Judge William K. Sessions III on 6/3/2016. (jam)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
:
:
:
:
:
:
:
:
:
:
:
:
:

ROBERT BRISTOL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social
Security Administration,
Defendant.

Case No. 2:15-cv-21

Opinion and Order
Plaintiff Robert Bristol brings the present action pursuant
to 42 U.S.C. § 405(g) to challenge the final decision of
Defendant Carolyn W. Colvin, Acting Commissioner of Social
Security, denying his claim for disability insurance benefits.
Currently before the Court are Bristol’s motion to reverse the
decision of the Commissioner (ECF No. 7), and the Commissioner’s
motion to affirm (ECF No. 11).

For the reasons explained below,

the Court denies Bristol’s motion and grants the motion of the
Commissioner.

This case is therefore dismissed.

BACKGROUND
I.

Procedural History
Bristol applied for Social Security disability insurance

(“SSDI”) benefits on September 17, 2012, alleging a disability
that began on May 26, 2012.

A.R. 147.1

The application was

denied initially on November 30, 2012, A.R. 82, and upon
reconsideration on February 15, 2013, A.R. 92.

At Bristol’s

request, Administrative Law Judge (“ALJ”) Thomas Merrill
conducted a hearing on the matter on March 12, 2014.

A.R. 30.

ALJ Merrill issued a decision denying Bristol’s application on
April 28, 2014.

A.R. 23.

On June 19, 2014, Bristol filed a

request for review by the Appeals Council.

A.R. 5-6.

The

Appeals Council denied Bristol’s request on December 2, 2014,
rendering ALJ Merrill’s decision the final decision of the
Commissioner.
II.

A.R. 1.

Factual Background

A. Non-Medical Evidence
At the time of the hearing in front of ALJ Merrill, Bristol
was 38 years old and lived with his family in St. Johnsbury,
Vermont.

A.R. 31, 190.

He obtained his GED in 1994, id., and

worked as a warehouse manager from 1996 until 2012, A.R. 168.

1

“A.R.” refers to the administrative record of proceedings filed by the
Commissioner as part of her answer.

2 

1. Bristol’s Social Security Questionnaires
On October 28, 2012, Bristol filled out a disability
questionnaire as part of his application for SSDI.

A.R. 190-97.

At that time, Bristol reported that he suffered from Meniere’s
disease, which caused him to undergo frequent attacks of
dizziness, vomiting, and loss of balance.

A.R. 190.

He further

indicated that he was bipolar, prone to anxiety and panic
attacks, and that he experienced lower back pain, knee pain, and
severe ringing in his ears.

Id.

In spite of those conditions,

Bristol provided that he was able to take care of his baby while
his wife was at work; help care for his children and the dog;
manage his own personal care; handle money and go grocery
shopping; and play with his children and visit with friends.
A.R. 191-94.

Bristol also reported that he could follow spoken

and written instructions, finish the activities that he began,
and get along with figures of authority.

A.R. 195.

Finally,

Bristol indicated that he did not handle stress or changes in
routine well and that he suffered from a fear of being alone.
A.R. 196.
Several months later, on January 16, 2013, Bristol again
completed a questionnaire in connection with his request for
reconsideration.

A.R. 207-14.

In the second questionnaire, he

stated that he experienced episodes of extreme dizziness,
vomiting, and loss of balance approximately three times per day,
3 

with each episode lasting roughly two hours.

A.R. 207.

He also

wrote that his back problems made it painful for him to bend and
lift objects, and that his anxiety limited his ability to leave
his house.

Id.

According to Bristol, when he was not suffering

from the symptoms of Meniere’s disease, he could care for his
children, tidy the house, drive a car, and go grocery shopping
with his wife.

A.R. 208-10.

He also reported that he could

manage his own personal care, follow spoken and written
instructions, pay attention normally, finish the activities that
he began, and get along with authority figures.

A.R. 209-13.

Finally, Bristol reiterated that he did not handle stress well
and that he feared being alone.

A.R. 213.

2. Bristol’s Testimony
At the hearing before ALJ Merrill on March 12, 2014,
Bristol testified that he continues to suffer from episodes of
dizziness, vomiting, and loss of balance.

A.R. 32.

Bristol

stated that he was initially diagnosed with Meniere’s disease in
his right ear, and that he attempted to treat his symptoms
through both biweekly steroid injections and surgery.
indicated that neither procedure was successful.

Id.

He

A.R. 33.

Bristol added that he was later diagnosed with Meniere’s disease
in his left ear as well, and that he also received surgery on
that ear.

Id.

4 

According to Bristol’s testimony, the onslaught of symptoms
he experiences is highly sporadic.

Id.

He stated that on some

days he endures three to five episodes, while on others, he
undergoes none at all.

Id.

Bristol maintained that the length

of the episodes also varies from 20 minutes to several hours.
Id.

When he experiences an attack, he provided, he cannot stand

or keep his eyes open.

A.R. 37.

Bristol testified that he has

medication for his symptoms, but that the medication causes him
to become extremely tired and to fall asleep.

A.R. 38.

With respect to his mental health, Bristol reported that he
suffers from deep anxiety related to his Meniere’s disease and
that he prefers to stay close to home.

A.R. 39.

He stated that

he saw a mental health expert for approximately six months
regarding that issue, and that he takes two medications
regularly.

A.R. 40.

In addition, Bristol provided that he has

long experienced regular back pain and that he drinks alcohol
with his wife roughly twice a month.

A.R. 42.

3. Vocational Expert’s Testimony
James T. Parker, a vocational expert who testified at the
hearing, stated that Bristol’s previous employment consisted of
two distinct responsibilities.

A.R. 44.

First, Bristol

primarily served as a warehouse supervisor.

Id.

Bristol was responsible for operating a forklift.

Second,
Id.

According to Parker, Bristol’s prior work as a warehouse
5 

supervisor is defined by the Dictionary of Occupational Titles
(“DOT”) as light and skilled.

Id.

Parker further indicated

that the DOT defines the operation of a forklift as medium
exertion and semi-skilled.

A.R. 44-45.

During Parker’s examination, ALJ Merrill posed a
hypothetical scenario in which Bristol could lift 50 pounds
occasionally and 25 pounds frequently; stand and walk for six
hours; sit for six hours; use his hands and feet to push, pull,
and operate controls; and maintain his balance frequently.
45.

A.R.

The hypothetical also provided that Bristol could not be

exposed to unprotected heights and hazardous machinery.

Id.

Under those circumstances, Parker indicated that Bristol would
not be able to drive the forklift because he would be unfit to
operate hazardous machinery.

Id.

Bristol would be able to

perform the supervisory responsibilities of his warehouse
supervisor position, however, as that role primarily involves
the delegation of tasks to others.

Id.

In addition, Parker

opined that Bristol would be able to work as an auto dealer, a
janitor, or a groundskeeper.

A.R. 46.

Under a second hypothetical scenario, ALJ Merrill changed
the circumstances such that Bristol could sit for six hours and
stand or walk for less than two hours.

Id.

If Bristol could

not complete an eight-hour workday, Parker suggested that he
would not be capable of maintaining any full-time job.
6 

A.R. 47.

Yet, if he could sit for six hours and stand or walk for a full
two hours, Parker opined that Bristol would be able to engage in
light or sedentary work.

Id.

Such work would include positions

such as a production sorter, a tile inspector, and a telephone
information clerk.

A.R. 48.

Finally, Parker indicated that if

Bristol required two or three unscheduled 30 minute breaks
throughout the day, in addition to regularly scheduled breaks,
he would not be able to maintain any job at all.

A.R. 49.

B. Medical Evidence
On November 24, 2010, Bristol checked into the emergency
room at Northeastern Vermont Regional Hospital.

A.R. 276.

He

reported that he had experienced a sudden episode of dizziness
and vomiting three days prior, and that those symptoms had
continued intermittently ever since.

Id.

Stanley Baker, M.D.

conducted an examination and recorded a clinical impression of
vertigo.

A.R. 276-77.

Dr. Baker gave Bristol 25 milligrams of

Meclizine, which subjectively improved Bristol’s condition.
A.R. 276.

Bristol was then released.

A.R. 277.

On April 7, 2011, Bristol was seen at the DartmouthHitchcock Medical Center for an “evaluation of ear symptoms of
Tinnitus, fluctuating hearing loss and vertigo.”

A.R. 246.

Bristol indicated that he had a five-year history of
intermittent tinnitus in his right ear and a fluctuating loss of
hearing.

Id.

He also reported that he had a six to seven-month
7 

history of vertigo associated with his ear symptoms.
vertigo involved both nausea and vomiting.

Id.

Id.

The

Bristol stated

that he had been taking Meclizine, which he found useful for
treating his symptoms.

Id.

Peter Dixon, P.A., recorded an

impression of Meniere’s disease and recommended that Bristol
return for a review in three months.

A.R. 247.

Over a year later, on May 25, 2012, Bristol returned to the
emergency room at Northeast Vermont Regional Hospital.
278.

A.R.

He reported that he had been diagnosed with Meniere’s

disease and indicated that he had just suffered an episode of
dizziness, ringing in his ears, and vomiting.

Id.

Dr. Baker

recorded clinical impressions of vertigo and Meniere’s disease,
and administered one liter of saline, four milligrams of Zofran,
and 25 milligrams of Meclizine.

A.R. 278-79.

Bristol then

indicated that his conditions had improved, and he was released
after treatment.

A.R. 279.

He stopped working the next day.

A.R. 168.
On August 20, 2012, Bristol saw Daniel Morrison, M.D. at
Dartmouth-Hitchcock Medical Center for an evaluation of his
Meniere’s disease.

A.R. 240-41.

Bristol informed Dr. Morrison

that he had an 18-24 month history of episodic vertigo
associated with tinnitus, pressure, and decreased hearing in his
right ear.

A.R. 240.

Bristol also stated that approximately

two months earlier, he had begun experiencing episodes of
8 

hearing fluctuation and tinnitus in his left ear.

Id.

With

respect to the vertigo, Bristol reported that he typically
experienced dizziness two times per week for two to three hours
per episode.
vomiting.

Id.

Id.

The vertigo was accompanied by nausea and

After conducting a series of examinations, Dr.

Morrison diagnosed Bristol with bilateral Meniere’s disease.
A.R. 241.

Dr. Morrison indicated that due to Bristol’s previous

response to steroids, he was optimistic that intratympanic
steroid injections would be beneficial.

Id.

Bristol agreed to

the procedure, and the doctor administered the first injection
into his right ear.

Id.

The following week, on August 29, 2012, Bristol returned to
Dartmouth-Hitchcock Medical Center for a follow-up examination.
A.R. 238.

Dr. Morrison recorded that Bristol had done well with

the first injection, having suffered only a few brief episodes
of vertigo during the past week.

Id.

Dr. Morrison proceeded to

administer another steroid injection into Bristol’s right ear.
Id.
On September 10, 2012, Bristol again saw Dr. Morrison at
Dartmouth-Hitchcock Medical Center.

A.R. 237.

Dr. Morrison

noted that Bristol showed signs of improvement, but that he
continued to suffer from short episodes of dizziness every few
days.

A.R. 238.

After consulting with Bristol, Dr. Morrison

delivered a third steroid injection to Bristol’s right ear.
9 

Id.

The doctor also signed a note certifying that Bristol was not
able to continue working, having been disabled by Meniere’s
disease since June 2012.

A.R. 293.

Bristol returned to Dartmouth-Hitchcock Medical Center on
September 24, 2012.

A.R. 235.

He again met with Dr. Morrison

and reported that he had continued to suffer from dizzy spells
twice daily for 10-15 minutes per episode.

Id.

Bristol

indicated that the attacks were no longer accompanied by nausea
or a spinning sensation, however, and were “not nearly as bad as
they were in the past.”

A.R. 236.

After completing his

examination, Dr. Morrison concluded that the episodes described
by Bristol were no longer consistent with Meniere’s disease “and
may be due to lack of coordination between various components of
the balance system.”

A.R. 237.

Dr. Morrison recommended that

Bristol complete a course of vestibular rehabilitation exercises
at home.

Id.

On November 7, 2012, shortly after submitting his
application for SSDI, Bristol underwent a psychological
evaluation at the direction of the Commissioner.

A.R. 284.

During the examination, Dennis Reichardt, Ph.D. observed that
Bristol was cooperative and alert, with “a high-strung but
pleasant personality.”

A.R. 286.

Dr. Reichardt further noted

that although Bristol exhibited a tense mood and nervous energy,
his thinking was logical and coherent, and he was “free of
10 

perceptual distortions, delusions, and suicidal ideation.”

Id.

Based on the evidence acquired during the evaluation, Dr.
Reichardt concluded that Bristol suffered from symptoms of
anxiety and depression.

Id.

He also noted that a diagnosis of

bipolar disorder was feasible, and that Bristol’s weakened
physical state exacerbated his anxiety such that he had
developed a panic disorder.

Id.

Those psychological issues

notwithstanding, Dr. Reichardt opined that Bristol “would likely
be working now if he could physically do so.”

Id.

In addition to the psychological evaluation, the
Commissioner requested that Bristol undergo a physical
examination with Fred Rossman, M.D.
Rossman on November 12, 2012.

Id.

A.R. 289.

Bristol saw Dr.

According to Dr. Rossman’s

notes, Bristol reported a history of lower back pain, Meniere’s
disease, sleep apnea, bipolar disorder, alcoholism, depression,
and anxiety.

Id.

Bristol explained that he experienced

moderate pain in his back every day, but that on occasion, the
pain increased sharply.

Id.

He further provided that his

Meniere’s disease had resulted in a loss of hearing of
approximately 90% in his right ear and 40% in his left ear.

Id.

Bristol informed Dr. Rossman that he had been receiving steroid
injections at weekly intervals, but that he stopped the
treatment due to the side effects of the steroids.

Id.

Finally, Bristol indicated that he experienced episodes of loss
11 

of balance and ringing in his ears approximately twice per week.
Id.

Such episodes were occasionally associated with nausea and

vomiting.

Id.

After conducting his examination, Dr. Rossman noted that
despite Bristol’s claimed back pain, he did not appear “to
demonstrate any decreased mobility including his ability to flex
and extend as well as to ambulate through the office.”
292.

A.R.

Dr. Rossman further noted that Bristol did not appear to

be in acute distress, and that Bristol indicated that he left
work due to his Meniere’s disease, not his lower back pain.

Id.

With respect to Meniere’s disease, Dr. Rossman concluded that
Bristol demonstrated no difficulty in hearing during their
conversation in the examination room.

Id.

The doctor also

stated that Bristol demonstrated no loss of balance during the
brief evaluation.

Id.

Dr. Rossman did not assess Bristol’s

bipolar disorder, depression, or anxiety.

Id.

Two days later, on November 14, 2012, Bristol had x-rays
taken of his spine.

A.R. 294.

Upon reviewing the images,

Richard Bennum, M.D. recorded that “[t]here is mild hypertrophic
spurring of the vertebral endplates in the lower lumbar and
lower thoracic regions.”

A.R. 295.

Dr. Bennum also concluded

that the intervertebral disc spaces appeared well maintained,
and that “no other bony abnormality is seen and there is no
evidence of fracture.”

Id.
12 

On November 16, 2012, Joseph Patalano, Ph.D. evaluated the
record evidence regarding Bristol’s psychological impairment for
the purpose of assessing Bristol’s initial SSDI application.
A.R. 58.

Dr. Patalano concluded that Bristol “may have episodic

problems with concentration/pace due to occasional increases in
anxiety/depression associated with health and environmental
stressors which temporarily undermine cognitive efficiency.”
A.R. 61.

Nonetheless, Dr. Patalano stated that from a

psychological perspective, Bristol “can sustain
concentration/persistence/pace for 2 hour periods over 8 hour
day through typical work week.”

Id.

Dr. Patalano further

opined that Bristol was capable of routine collaboration with a
supervisor and limited interaction with coworkers.

A.R. 62.

Moreover, on November 29, 2012, Social Security Single
Decision Maker Maxwell Criden reviewed the record evidence with
respect to Bristol’s physical impairment in order to assess
Bristol’s initial application for SSDI.

A.R. 60.

Criden found

that Bristol could occasionally lift 50 pounds; frequently lift
25 pounds; stand or walk for six hours in an eight-hour work
day; and sit for a total of six hours in an eight-hour work day.
A.R. 59.

Criden also found that Bristol’s balance was limited

and that he should avoid even moderate exposure to hazards such
as machinery or heights.

A.R. 59-60.

Based on his assessment,

along with that of Dr. Patalano, Criden ultimately determined
13 

that although Bristol was limited to unskilled work due to his
impairments, he was not disabled for the purpose of his SSDI
application.

A.R. 63.

Elizabeth White, M.D. and Roy Shapiro,

Ph.D. agreed with the conclusions of Criden and Dr. Patalano
when considering Bristol’s request for reconsideration.

A.R.

66-78.
On May 3, 2013, Dr. Morrison completed a questionnaire
indicating that he was treating Bristol for Meniere’s disease.
A.R. 310.

He reported that Bristol “continue[d] to experience

balance difficulties,” which were “responding to treatment.”
Id.

In addition, he indicated that Bristol could stand or walk

for less than two hours before suffering from dizziness or
disorientation to the point of distraction.

Id.

He also

provided that Bristol’s condition was aggravated by movements of
the head and movements of visual images on a computer or
television screen.

A.R. 311.

Dr. Morrison noted that Bristol

had suffered from such limitations since the beginning of his
treatment.

Id.

Several months later, on September 3, 2013, Bristol saw
Deane E. Rankin, M.D. at Littleton Regional Healthcare.
315.

A.R.

Bristol informed Dr. Rankin that Dr. Morrison had

previously diagnosed him with Meniere’s disease.

Id.

Although

his symptoms had subsided for some time, Bristol indicated that
recently, he had redeveloped vertigo, nausea, and fluctuating
14 

hearing.

Id.

Dr. Rankin performed a general examination and

recommended that Bristol follow up with Dr. Morrison.

A.R. 315-

16.
On February 14, 2014, Dr. Morrison performed endolymphatic
sac decompression surgery in Bristol’s left ear.2

A.R. 326.

Following surgery, it was noted that Bristol was “doing well
without problems.”

A.R. 327.
DISCUSSION

I.

Standard of Review
A district court may reverse the Commissioner’s

determination that a claimant is not disabled “only if the
factual findings are not supported by ‘substantial evidence’ or
if the decision is based on legal error.”

Shaw v. Carter, 221

F.3d 126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)).
Substantial evidence is “‘more than a mere scintilla.

It means

such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’”

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consol. Edison Co. of New York v.
NLRB, 302 U.S. 197, 229 (1938)).
In assessing whether substantial evidence supports the
Commissioner’s decision, “the Court [must] carefully consider[]
the whole record, examining evidence from both sides.”

Tejada

2

Bristol submits that he also underwent endolymphatic sac decompression
surgery in his right ear sometime after February 8, 2013. See ECF No. 7 at
5. Although there are no direct medical records of that procedure, there are
two records that reference such surgery. See A.R. 315, 330.

15 

v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999).

The Court may not,

however, “‘substitute its own judgment for that of the
[Commissioner], even if it might justifiably have reached a
different result upon a de novo review.’”

Jones v. Sullivan,

949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Sec’y of
Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)).
II.

The Definition of Disability
The Social Security Act provides that an individual is

disabled when he is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.”

42 U.S.C. § 423(d)(1)(A).

The impairment must be “demonstrable by medically acceptable
clinical and laboratory diagnostic techniques,” § 423(d)(3), and
must be “of such severity that [the applicant] is not only
unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy,”
§ 423(d)(2)(A).
Pursuant to agency rules promulgated under the Act, the
Commissioner is to apply a five-step analysis in determining
whether an individual is disabled.

16 

See 20 C.F.R. §§ 404.1520,

416.920.

The Second Circuit has articulated that analysis as

follows:
1. The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the
claimant has a ‘severe impairment’ which limits his
or her mental or physical ability to do basic work
activities.
3. If the claimant has a ‘severe impairment,’ the
Commissioner must ask whether, based solely on
medical evidence, claimant has an impairment listed
in Appendix 1 of the regulations. If the claimant
has one of these enumerated impairments, the
Commissioner will automatically consider him
disabled, without considering vocational factors
such as age, education, and work experience.
4. If the impairment is not ‘listed’ in the
regulations, the Commissioner then asks whether,
despite the claimant’s severe impairment, he or she
has residual functional capacity to perform his or
her past work.
5. If the claimant is unable to perform his or her past
work, the Commissioner then determines whether there
is other work which the claimant could perform. The
Commissioner bears the burden of proof on this last
step, while the claimant has the burden on the first
four steps.
Shaw v. Carter, 221 F.3d 126, 132 (2d Cir. 2000) (internal
citation omitted).

Under the third step, the Second Circuit has

made clear that the irrebuttable presumption of disability
applies so long as the claimant has an impairment that is
“listed” or an impairment that is “equal to” a listed
impairment.

Id.; see also 20 C.F.R. §§ 404.1520(d), 416.920(d).

III. The ALJ’s Decision
In a written decision dated April 28, 2014, ALJ Merrill
applied the five-step analysis explained above in determining
17 

whether Bristol was disabled.

A.R. 12-23.

ALJ Merrill began by

finding that Bristol had not engaged in substantial gainful
employment since May 26, 2012, the date of the alleged onset of
disability.

A.R. 12.

He next found that Bristol suffered from

the following “severe” impairments: Meniere’s disease,
degenerative disc disease of the lumbar spine, affective
disorder/bipolar disorder, anxiety/panic disorder, and alcohol
addiction disorder.

A.R. 13.

Under step three, ALJ Merrill

considered whether Bristol’s impairments met or medically
equaled Listing 1.04, 2.07, 12.04, 12.06, or 12.09 in 20 C.F.R.
Part 404, Subpart P, Appendix 1.

A.R. 14.

He concluded that

Bristol’s impairments did not meet or medically equal any of
those listings.

A.R. 13.

ALJ Merrill then made a determination regarding Bristol’s
residual functional capacity.

A.R. 16-21.

Based on the record

evidence, ALJ Merrill found that Bristol had the capacity to
lift 50 pounds occasionally and 25 pounds frequently; stand or
walk for six hours in an eight-hour workday; and sit for six
hours in an eight-hour workday.

A.R. 16.

ALJ Merrill also

found that Bristol had unlimited use of his hands and feet to
operate controls and to push and pull.

Id.

He further

determined that Bristol could frequently balance, and that he
was capable of routine collaboration with supervisors and
routine interaction with coworkers.
18 

Id.

Finally, ALJ Merrill

found that Bristol should avoid even moderate exposure to
unprotected heights and hazardous machinery.

Id.

In light of those findings, ALJ Merrill found under step
four that Bristol was capable of performing his past relevant
work as a warehouse supervisor.

A.R. 21.

ALJ Merrill

acknowledged Bristol’s indication that his prior job required
him to stand and walk for eight hours per day and lift objects
weighing more than 100 pounds, yet the ALJ noted that DOT
defines the position as a “medium duty job.”

A.R. 22.

Accordingly, ALJ Merrill found that Bristol would be able to
perform the job as it is generally performed in the economy.
Id.
Despite having determined that Bristol was capable of
engaging in his prior position, ALJ Merrill continued to step
five of the analysis to assess whether there were other jobs in
the national economy that Bristol would be able to perform.

Id.

Relying on the testimony of vocational expert James Parker, ALJ
Merrill found that Bristol would be able to perform the
responsibilities of several occupations, including those of an
automobile dealer, a janitor, and a groundskeeper.

A.R. 23.

also accepted Parker’s testimony that each of those positions
exists in significant numbers in the national economy.
In making his findings regarding Bristol’s residual
functional capacity, ALJ Merrill credited the reports of
19 

Id.

He

physical and psychological consultative examiners Fred Rossman,
M.D. and Dennis Reichardt, Ph.D.

A.R. 17-18.

He also placed

significant weight on the opinions of non-examining state agency
medical consultant Elizabeth White, M.D. and non-examining state
agency psychological consultants Joseph Patalano, Ph.D. and Roy
Shapiro, Ph.D.

A.R. 20.

He relied on the opinions of the non-

examining consultants because those individuals are familiar
with the rules and regulations of the Social Security disability
program, and because their conclusions were consistent with
those of the consultative examiners and the record evidence.
A.R. 20-21.
By contrast, ALJ Merrill gave little weight to Dr.
Morrison’s opinion that Bristol was unfit to work.

A.R. 21.

Although ALJ Merrill recognized that Dr. Morrison was one of
Bristol’s treating physicians, he found that the doctor’s
conclusion was unsupported by a detailed articulation of medical
reasoning and inconsistent with other record evidence.

Id.

Similarly, ALJ Merrill discounted Bristol’s own account of his
symptoms on the grounds that his claimed physical limitations
were contradicted by other evidence in the record.

A.R. 18-21.

Specifically, ALJ Merrill noted that Bristol collected
unemployment compensation during the first two years of his
alleged disability, which required him to sign documents
indicating that he was actively seeking gainful employment, and
20 

that he was ready, willing, and able to work.

A.R. 19.

ALJ

Merrill further found that Bristol’s claimed limitations were
inconsistent with the results of the physical examination
performed by Dr. Rossman, as well as the interpretation of the
spinal radiograph offered by Dr. Bennum.

A.R. 19-20.

Finally,

ALJ Merrill determined that the activities in which Bristol
continued to engage--including personal tasks, family care, and
recreation--belied his allegations of total disability.

A.R.

20.
Bristol now submits that ALJ Merrill erred in three ways.
First, Bristol contends that ALJ Merrill failed to consider
whether his medical impairments equaled Listing 2.07 of 20
C.F.R. Part 404, Subpart P, Appendix 1.

Second, Bristol asserts

that ALJ Merrill’s finding regarding his residual functional
capacity did not account for the time that he would be off task
due to vertigo attacks.

Third, Bristol argues that ALJ

Merrill’s residual functional capacity finding failed to account
for Bristol’s moderate limitations in concentration,
persistence, or pace due to depression and anxiety.
will address each argument in turn.

21 

The Court

IV.

Analysis

A. Whether Substantial Evidence Supports the Finding that
Bristol’s Meniere’s Disease Does Not Equal Listing 2.07
Bristol concedes that his Meniere’s disease cannot meet the
criteria for Listing 2.07 because he has not provided results
from any caloric or other vestibular tests.

Nonetheless, he

contends that ALJ Merrill erred in concluding that his
impairment does not medically equal Listing 2.07.3

In support of

his position, Bristol asserts that the record demonstrates a
history of progressive hearing loss and frequent episodes of
balance disturbance and tinnitus.

The Commissioner responds

that substantial evidence supports ALJ Merrill’s determination.
Listing 2.07 covers “disturbance[s] of [the] labyrinthinevestibular function,” which specifically include Meniere’s
disease.
2.07.

20 C.F.R. Part 404, Subpart P, Appendix 1, Listing

In order to meet the criteria for Listing 2.07, an

individual must demonstrate “a history of frequent attacks of
balance disturbance, tinnitus, and progressive loss of hearing.”
Id.

An individual must also show both a “disturbed function of

vestibular labyrinth demonstrated by caloric or other vestibular
tests;” and “hearing loss established by audiometry.”

Id.

3

Bristol also makes the unsupported assertion that “ALJ Merrill makes no
finding as to whether Plaintiff ‘equals’ listing 2.07.” ECF No. 7 at 10.
Bristol’s argument is quickly dismissed, however, as ALJ Merrill plainly
states in his written decision that Bristol “does not have an impairment or
combination of impairments that meets or medically equals the severity of one
of the listed impairments . . . .” A.R. 13 (emphasis added).

22 

Here, having carefully considered the entire record, the
Court finds that substantial evidence supports ALJ Merrill’s
determination that Bristol’s impairment does not medically equal
Listing 2.07.

To begin, ALJ Merrill found that Bristol had not

experienced a progressive loss of hearing.

Rather, ALJ Merrill

determined that Bristol had suffered “low frequency mild
sensorineural hearing loss” in his right ear, and that hearing
in his left ear was “within normal limits.”

A.R. 14.

evidence in the record supports that determination.

The

As cited by

ALJ Merrill, an audiologic evaluation conducted in April 2011
revealed that Bristol had experienced mild hearing loss in his
right ear and that hearing in his left ear was within normal
limits.

A.R. 232.

Over a year later, in August 2012, a similar

evaluation indicated that Bristol had suffered moderate to mild
hearing loss in his right ear and that hearing in his left ear
remained within normal limits.

A.R. 234.

At that time, Dr.

Morrison opined that Bristol’s hearing had actually improved as
compared to previous test results.

A.R. 241.

A report written

by Dr. Rossman in November 2012 further provided that Bristol
“demonstrate[ed] no difficulty in hearing during the
conversation in the exam room which [was] in a relatively small
room and small space but without need to raise one’s voice.”
A.R. 292.

23 

Next, ALJ Merrill found that Bristol had not demonstrated a
history of frequent attacks of balance disturbance and tinnitus.
A.R. 14.

The evidence in the record also supports that

determination.

As ALJ Merrill noted, in April 2011, Bristol

reported that three weeks had passed in between episodes of
tinnitus.

A.R. 246.

Although Bristol later testified during

the hearing that he suffered between three and five episodes per
day, A.R. 33, other record evidence belies such a high frequency
of attacks.

Specifically, medical reports from both August and

November 2012 provide that Bristol reported experiencing only
two episodes of vertigo per week.

A.R. 240.

In addition, the

record makes clear that Bristol responded positively to medical
treatment.

After receiving a series of steroid injections in

August and September 2012, Bristol reported that his episodes of
lightheadedness no longer included nausea or a spinning
sensation, and were “not nearly as bad as they were in the
past.”

A.R. 236.

Indeed, Dr. Morrison concluded during that

examination that “[t]he episodes that [Bristol] is describing
now are not consistent with Meniere’s [disease].”

A.R. 237.

Based on the medical records described above, the Court
finds that substantial evidence supports ALJ Merrill’s
determination that Bristol did not demonstrate “a history of
frequent attacks of balance disturbance, tinnitus, and
progressive loss of hearing.”

See 20 C.F.R. Part 404, Subpart
24 

P, Appendix 1, Listing 2.07.

Accordingly, the Court rejects the

argument that ALJ Merrill erred in concluding that Bristol’s
impairment does not medically equal Listing 2.07.4
B. Whether Substantial Evidence Supports the RFC Finding in
light of Bristol’s Episodes of Vertigo and Tinnitus
Bristol next submits that ALJ Merrill erred in determining
Bristol’s residual functioning capacity (“RFC”) by failing to
account for episodes of vertigo and tinnitus during which he is
unable to work.

In response, the Commissioner argues that ALJ

Merrill’s RFC finding is supported by substantial evidence.
The Court agrees with the Commissioner’s argument.

In

determining Bristol’s RFC to perform medium work, ALJ Merrill
recognized “the somewhat sporadic nature of [Bristol’s] attacks
of symptoms of Meniere’s disease.”

A.R. 17.

Nonetheless, ALJ

Merrill noted that although he did not witness an attack,
physical consultative examiner Dr. Rossman “indicated no
objective medical signs or symptoms that would suggest [Bristol]
was suffering under significant physical functional limitation.”
Id.

Indeed, with respect to Bristol’s Meniere’s disease, Dr.

Rossman reported that Bristol “demonstrate[d] no difficulty in
hearing” in the small examination room, and that he

4

Bristol also argues that ALJ Merrill erred by failing to further develop the
record by calling a medical expert to address the question of medical
equivalence. Bristol’s argument cannot succeed, however, because where, as
here, “there are no obvious gaps in the administrative record, and where the
ALJ already possesses a ‘complete medical history,’ the ALJ is under no
obligation to seek additional information in advance of rejecting a benefits
claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (quoting Perez
v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)).

25 

“demonstrate[d] no loss of balance during the short episode of
walking into or out of the office [or during] his demonstration
of his ability to walk during the examination.”

A.R. 292.

Dr.

Rossman further indicated that Bristol “appear[ed] responsive
and communicative and able to hear questions asked and answer
questions appropriately.”

Id.

Non-examining medical consultant

Dr. White arrived at similar conclusions, opining that Bristol
is fit to stand for a total of “[a]bout 6 hours in an 8-hour
workday;” sit for a total of “[a]bout 6 hours in an 8-hour
workday;” and balance “[f]requently.”

A.R. 74.

Beyond the observations of Dr. Rossman and the opinions of
Dr. White, ALJ Merrill also relied upon Bristol’s daily
activities in determining his RFC.

As ALJ Merrill noted,

Bristol reported that he was able to take care of his baby while
his wife was at work, as well as drive a vehicle.

A.R. 191-93.

A hospital report further indicated that Bristol continued to
use his snowmobile long after he first began to experience
symptoms of Meniere’s disease.

A.R. 324.

Although not all of

Bristol’s daily activities are inconsistent with a disability,
caring for a child and operating motorized vehicles undeniably
conflict with Bristol’s subjective complaints.

See Poupore v.

Astrue, 566 F.3d 303, 307 (2d Cir. 2009).
Finally, ALJ Merrill noted that Bristol has responded well
to treatment.

As stated above, after performing a series of
26 

steroid injections in the fall of 2012, Dr. Morrison indicated
that “[t]he episodes that [Bristol] is describing now are not
consistent with Meniere’s [disease].”

A.R. 237.

Although

Bristol’s symptoms reportedly returned sometime thereafter, in
February 2014, Bristol underwent left endolymphatic sac
decompression surgery.

A.R. 326.

The medical reports indicate

that Bristol was “doing well” immediately after surgery, and
there is no evidence in the record suggesting that Bristol has
required any significant treatment since the February 2014
procedure.

A.R. 327.

In light of the reports of Dr. Rossman and Dr. White, as
well as Bristol’s own daily activities and his response to
treatment, the Court finds that ALJ Merrill’s RFC finding is
supported by substantial evidence.

Consequently, the Court

cannot accept Bristol’s argument that ALJ Merrill failed to
adequately consider his vertigo and tinnitus.
C. Whether Substantial Evidence Supports the RFC Finding in
light of Bristol’s Limitations in Concentration,
Persistence, and Pace
Lastly, Bristol argues that ALJ Merrill erred in
determining Bristol’s RFC by failing to account for his moderate
limitations in concentration, persistence, and pace.

In support

of his position, Bristol points to the opinions of non-examining
psychological consultants Joseph Patalano, Ph.D. and Roy
Shapiro, Ph.D.

As Bristol asserts, both doctors indicated that
27 

Bristol “may have episodic, problems with concentration/pace due
to occasional increases in anxiety/depression associated with
health and environmental stressors which temporarily undermine
cognitive efficiency.”

A.R. 61, 76.

Given those indications,

Bristol submits that ALJ Merrill’s RFC determination is not
supported by substantial evidence.
Bristol’s argument cannot succeed.

First, as the

Commissioner asserts, the reports of Dr. Patalano and Dr.
Shapiro do not conclude with the doctors’ opinions regarding
Bristol’s episodic limitations in concentration and pace.
Rather, both doctors proceed to state that outside of those
episodic limitations, from a psychological perspective, Bristol
can sustain concentration, persistence, and pace for two-hour
periods over eight-hour days throughout a typical work week.
Id.

When considering the breaks afforded in an average workday,

such opinions are consistent with ALJ Merrill’s finding that
Bristol’s psychological limitations do not render him totally
disabled.
Second, other evidence in the record further supports ALJ
Merrill’s assessment of Bristol’s psychological capacity.

As

ALJ Merrill noted in his written decision, psychological
consultative examiner Dennis Reichardt, Ph.D. reached the
conclusion that Bristol experienced symptoms of anxiety and
depression.

Those symptoms notwithstanding, Dr. Reichardt
28 

opined that Bristol “would likely be working now if he could
physically do so.”

A.R. 286.

Dr. Reichardt’s opinion plainly

suggests that Bristol’s mental health does not prevent him from
engaging in work.

Moreover, Bristol’s own responses to the

Social Security questionnaires indicate that his limitations in
concentration, persistence, and pace are not fully debilitating.
In the October 2012 questionnaire, Bristol indicated that he
could finish what he started.

A.R. 195.

Similarly, in the

January 2013 questionnaire, Bristol reported that he could
finish what he started and pay attention normally.

A.R. 212.

Those indications also support ALJ Merrill’s RFC finding.
Thus, based on the full reports of Dr. Patalano and Dr.
Shapiro, as well as the conclusions of Dr. Reichardt and
Bristol’s own statements regarding his ability to concentrate,
the Court finds that ALJ Merrill’s RFC finding is supported by
substantial evidence.

Consequently, the Court rejects Bristol’s

argument that ALJ Merrill failed to properly account for
Bristol’s psychological limitations in determining his RFC.
CONCLUSION
As set forth above, the Court denies Bristol’s motion to
reverse the decision of the Commissioner (ECF No. 7), and grants
the Commissioner’s motion to affirm (ECF No. 11).
case is therefore dismissed.

29 

The present

Dated at Burlington, in the District of Vermont, this 3rd
day of June, 2016.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

30