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FORTE v. MATTHEWS

February 7, 1977

JAMES C. FORTE
v.
DAVID MATTHEWS, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 This is a review of an administrative determination made by the Administrative Law Judge ("ALJ") that plaintiff Forte was not entitled to disability benefits under the Social Security Act. For reasons set forth below, the government's motion for summary judgment is granted and plaintiff's cross-motion is denied.

 FACTS

 Plaintiff, who was 34 years old at the time of the administrative proceeding, has attended business school and received a certificate from two years at vocational technical high school, specializing in computer programming and data processing (Tr. 34-36). His work history includes a year as an insurance salesman (Tr. 67), eight years as a steelworker (Tr. 73), and 9 months as a hospital security guard (Tr. 83). He left the insurance company because he felt his commissions were unsatisfactory (Tr. 47). He left the other jobs because of various injuries.

 
"His impression was that this was possibly a post concussion syndrome, but there was so much functional disorder that he was unable to pinpoint a diagnosis and suggested that the sooner the patient was rehabilitated in some type of work the better off he would be."

 He was sent back to work in August, 1971, by Dr. Butler with restrictions on lifting and climbing. The company would not put him back due to these restrictions (Tr. 105).

 A third accident, again auto, brought him back to Dr. Butler in October, 1971. The diagnosis was whiplash of the neck and contusion and sprain of lumbrosacral area (Tr. 108). At about that time, Dr. Butler indicated plaintiff needed treatment by a psychiatrist for his "functional and emotional disorder" (Tr. 108).

 Dr. Walter Vernon, of Lukens Steel, first treated plaintiff following the steel mill accident, which occurred in May, 1971. Dr. Vernon's specialty is occupational medicine and internal medicine (Tr. 128). Dr. Vernon reported, after receiving Dr. Polycyn's diagnosis: "The patient failed to present any significant [physical] findings." (Tr. 111). All x-rays were normal. Dr. Vernon diagnosed the problem as a possible mild post concussion syndrome with a "moderately severe" anxiety reaction (Tr. 113).

 In June, 1973, Dr. Butler concluded that plaintiff Forte had been "for all intents and purposes . . . totally disabled [since July, 1971] although he has been able to work for short periods of time" (Tr. 114). The diagnosis included myositis of the neck, low back syndrome and functional disorder. In April of 1973, Dr. George Kent, an orthopedic surgeon, reported on his findings to the Bureau of Vocational Rehabilitation. He stated: "I believe his limiting factors are a combination of the neck and back pain." (Tr. 117). In August, 1973, Dr. Lawrence Adams, a neurosurgeon, also reported his findings on behalf of the Social Security Administration. Dr. Adams described plaintiff's complaints of pain, tenderness and difficulty of movement. "It is difficult to evaluate how much of this is voluntary or involuntary." (Tr. 119). He went on to say (Tr. 120):

 
"It is my feeling that his primary problem is psychological and that he is exceedingly accident-prone . . . I would tend to think he would have a difficult job maintaining employment because he is pre-occupied and apparently he is pre-occupied because he has multiple accidents. I would think that this is primarily a psychiatric problem, however."

 In August, 1973, plaintiff's condition was also analyzed by a psychiatrist, Dr. Paul Barenberg, for the state agency. This was the first and only psychiatrically trained doctor consulted. Dr. Barenberg found no psychiatric disorder. "His limited functioning shows no signs of being on a psychiatric basis," he reported. (Tr. 121).

 Dr. Butler reported, in a final letter requested by the ALJ, that he had seen plaintiff as late as November 21, 1974. "My impression at this time is ...


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