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Thomas Fox v. Michael J. Astrue

September 2, 2011


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.



Thomas Fox ("Plaintiff"), commenced the instant action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner"), denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. Plaintiff filed his application on June 26, 2006, alleging disability since June 10, 2001 due to reactive airways dysfunction syndrome ("RADS"), reactive upper airways dysfunction syndrome ("RUDS"), carpal tunnel syndrome, impaired hearing, impaired vision, and high blood pressure*fn1 (AR 83-88; 102).*fn2 His application was denied (AR 68-71), and following a hearing held before an administrative law judge ("ALJ") on August 6, 2008 (AR 27-53), the ALJ found that Plaintiff was not entitled to a period of disability or DIB under the Act (AR 61-67). Plaintiff‟s request for review by the Appeals Council was denied (AR 4-6), rendering the Commissioner‟s decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ‟s decision. Presently pending before the Court are the parties‟ cross-motions for summary judgment. For the reasons that follow, Plaintiff‟s motion will be denied and the Commissioner‟s motion will be granted.


Plaintiff was 63 years old on the date of the ALJ‟s decision and has a college education with past relevant work experience as a computer software engineer (AR 33; 103). Prior to Plaintiff‟s alleged onset date, Robert G. Sioss, M.D., the medical director of Lucent Technologies where Plaintiff was employed, issued a letter dated November 20, 1998 stating that Plaintiff had hypersensitivity to certain odors and fumes resulting in marked sinus pressure and headaches (AR 144). Dr. Sioss indicated that persons wearing colognes or perfumes could trigger a reaction, and Plaintiff was instructed to ask those sharing his work space to refrain from using such products (AR 144). On March 22, 2000, Plaintiff was seen by John Oppenheimer, M.D. of Pulmonary and Allergy Associates, P.A., who reported that Plaintiff was seen in his office "with severe irritant response in the upper airway to fragrances" (R 152). Dr. Oppenheimer recommended that whenever possible Plaintiff be accommodated in order to avoid such exposures, since they "provide[d] him with a great deal of discomfort and prolonged agony thereafter" (AR 152).

Plaintiff was seen by Sam T. Bebawy, a pulmonologist, on May 22, 2001 and complained of shortness of breath (AR 163). Plaintiff reported that he suffered a reaction when exposed to any fumes or perfumes (AR 163). Dr. Bebawy diagnosed him with hyperactive airway and hypertension, and prescribed Albuterol (AR 163).

On December 13, 2001, Plaintiff underwent pulmonary function testing which yielded normal results (AR 159-160).

On May 23, 2002, Dr. Oppenheimer stated that Plaintiff suffered from sensitivity to fragrances that caused him to have respiratory reactions, inflamed sinuses and elevated blood pressure (AR 151). Dr. Oppenheimer requested that Plaintiff be accommodated by "re-seating him if needed to avoid strong odors/fragrances" and by allowing him to "wear a face mask" (AR 151). Pulmonary functions tests dated May 23, 2002 and May 29, 2002 were reported as normal (AR 155-158).

On June 3, 2003, Dr. Oppenheimer wrote a note requesting that Plaintiff be excused from jury duty due to chronic rhinitis, which worsened following exposure to strong odors (AR 150).

Plaintiff began treatment with Timothy Callaghan, M.D., on September 14, 2005 (AR 193). Dr. Callaghan noted a history of chronic exposure to mineral wool and linseed oil resulting in "injury to and dysfunction of multiple organs and systems" (AR 194). Plaintiff reported that fragrances were "the worst" but he could work in a "clean environment" (AR 193).

On October 13, 2005, Plaintiff was seen by Gregory Palega, M.D. for a comprehensive medical evaluation (AR 175-176). Plaintiff reported that he suffered from hypertension that spiked when he had "chemical sensitivity reactions" (AR 176). Dr. Palega noted that Plaintiff was being treated by a pulmonologist, and had a "well-documented" history of chemical sensitivity with dyspnea acutely associated with chest pain and pressure, and had "severe fragrance reactions" (AR 176-177). No abnormalities were noted in his laboratory results (AR 180-181). On physical examination, Dr. Palega found normal breath sounds bilaterally, normal excursion and no evidence of rales or wheezing (AR 176). He diagnosed Plaintiff with hypertension, retinal surgery and vitreous detachment, and "reactive airways" (AR 175). He recommended that Plaintiff taper off the beta blocker and continue Albuterol aggressively as needed (AR 175).

Plaintiff returned to Dr. Callaghan on January 20, 2006 and reported that he had not started recommended treatment due to money concerns (AR 187). He indicated that he had a reaction to cleaning products in restrooms, but did "well" most days unless he was exposed to chemicals (AR 187). He claimed he was unable to work due to sensitivities to workplace fragrances and chemicals, which caused chest tightness and increased blood pressure (AR 187).

On March 1, 2006, Dr. Callaghan noted that when "not exposed" Plaintiff‟s pulmonary function was normal (AR 186). It was further noted that Plaintiff had not worked for five years, that he had used up his 401(k) and was accumulating debt and needed a Social Security disability report (AR 186). Dr. Callaghan noted that Plaintiff was in no distress in his "clean" office and his voice was "ok" (AR 186). On the office visits of April 13, 2006 and May 18, 2006, no physical complaints were noted (184-185).

When seen by Dr. Palega on March 9, 2006, Plaintiff reported that he had discontinued Albuterol without any symptoms or consequences (AR 173). He was diagnosed with hypertension, chemical sensitivities and "reactive airways" (AR 173).

Plaintiff was seen by Brian Gilmore, M.D., from Coastal Pulmonary Medicine on June 12, 2006 (AR 210). Dr. Gilmore noted that Plaintiff‟s condition was unchanged since his last visit in February 2006 (AR 210). He reported Plaintiff was "doing well" and that he had not tried the Advair, but continued to follow "avoidance measures" (AR 210). On physical examination, Dr. Gilmore found Plaintiff‟s lungs were clear with good air movement (AR 210). He diagnosed Plaintiff with RADS/irritant induced asthma, but that noted that he was asymptomatic and stable without the need for Advair (AR 210). Dr. Gilmore recommended Plaintiff continue avoidance measures and try Advair if needed (AR 210).

Plaintiff returned to Dr. Callaghan on July 19, 2006, and reported that he recently had a "queasy feeling" when encountering an individual wearing cologne at an art gallery (AR 183). He further reported that walking on blacktop surfaces triggered the same symptoms (AR 183). Plaintiff stated that he was "struggling with how to live and be able to leave the protective bubble of his house" without suffering a reaction (AR 183). Dr. Callaghan recommended that Plaintiff eat well, engage in positive thinking and avoid exposures (AR 183).

Dr. Callaghan prepared a medical report dated August 22, 2006 (195-198). In this report, he recounted Plaintiff‟s medical history, noting that he had a history of reactions to fragrances and chemicals at work that caused severe hypertension, chest pain, dizziness and sinus pressure (AR 196). Dr. Callaghan further noted that EMS had transported him twice; once to his pulmonologist‟s office and once to the emergency room (AR 196-197). Dr. Callaghan concluded his report by observing:

Mr. Fox is an unfortunate victim of multiple chemical exposures that exacerbated his initial mild allergies/chemical sensitivities and have curtailed his quality of life significantly and routinely rendered him a "prisoner" in his own home, fearful to venture out and wondering what the next "trigger" will be. He is totally unable to work since most of the common work place chemicals like fragrances, copy machine off gassing, cleaning products, air ...

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