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Swentko v. Astrue

July 21, 2008


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

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Plaintiff, Debra Swentko ("Plaintiff"), brings this action pursuant to 42 U.S.C. §§ 405(g) seeking review of the final determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-433. The parties have filed cross motions for summary judgment, and the record has been developed at the administrative level.


Plaintiff filed an application for DIB benefits on April 1, 2005, alleging disability since January 10, 2005, due to a below-the-elbow amputation of her right arm consequent to an automobile accident. R. 46-49, 61. Plaintiff's claim was initially denied, and she filed a timely request for an administrative hearing. R. 33-37. Before the hearing took place, Plaintiff amended her disability claim to include depression and anxiety as additional impairments affecting her ability to engage in regular work activity. R. 89. A hearing was held on July 7, 2006, in Morgantown, West Virginia, before Administrative Law Judge Norma Cannon ("ALJ"). R. 12, 224-53. Plaintiff was represented by counsel, Joseph George, plaintiff's husband, Andy Swentko, was present as an observer, and Vocational Expert ("VE"), Larry Bell, also appeared and testified. R. 224-253. The ALJ issued an unfavorable decision on September 11, 2006, finding that the Plaintiff was "not disabled" within the meaning of the Social Security Act. R. 12-20. The ALJ's decision became the Commissioner's final decision when, on January 9, 2007, the Appeals Council denied Plaintiff's request for review. R. 4-6. The instant action now seeks review of the Commissioner's final decision, and the matter is before this court on the cross-motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.


Plaintiff was born on June 20, 1957. R. 19, 31, 46, 57, 229. She is currently fifty (50) years old, making her forty-seven (47) years old at the time of application for DIB benefits and forty-nine (49) years old at the time of the administrative hearing. Id. Under the Commissioner's regulations, applicants under the age of 50 are considered "younger individuals" and their age is not considered a significant impediment to adapting to new work situations. 20 CFR § 416.963. Individuals age 50-54 are considered persons "closely approaching advanced age" and their age is considered together with severe impairments and limited work experience in determining the applicant's ability to adjust to other work. Id. The Commissioner uses each age category that applies during the period for which a determination must be made as to whether or not an individual is disabled. Id. In the present case, the period for which a disability determination must be made is from January 10, 2005, the alleged disability onset date, until September 11, 2006, the date of the ALJ's decision, which became the final decision of the Commissioner by act of the Appeals Council on January 9, 2007. Thus, Plaintiff was less than fifty years old during the entirety of the relevant period, a "younger person" according to the Commissioner's regulations, and her age is not a significant factor in her ability to acclimate to unfamiliar occupational circumstances.

On January 10, 2005, Plaintiff was an unwilling and unfortunate participant in a horrific automobile accident during which she suffered a severe degloving injury resulting in the amputation of her dominant right arm below the elbow. R. 99-104. Plaintiff subsequently underwent a split-thickness skin graft procedure. R. 156-57. Beginning March 4, 2005, until May 11, 2005, Plaintiff regularly attended physical therapy sessions. R. 159-85. Plaintiff was fitted for and provided with a prosthesis, but she did not like it and chose not to use it. R. 159-85, 231-32. On June 9, 2005, Plaintiff tolerated an injection and manipulation of her right shoulder due to significant pain and loss of motion in that joint. R. 187-89.

On July 27, 2005, Plaintiff sought counseling from Jacquelyn Albert, LCSW, presenting with severe anxiety and moderate depression persisting over the preceding several months. R. 215-17. The severity of Plaintiff's presenting problem was indicated as "disabling." R. 215. The recommended treatment for Plaintiff was weekly individual therapy sessions. R. 217. The record contains reports from Plaintiff's individual therapy sessions beginning August 3, 2005 and continuing until November 15, 2005. R. 206-14. From the initial evaluation through the final report in the record, Plaintiff's global assessment of functioning ("GAF") was consistently rated between 55 and 60.*fn1 R. 206-17. The session notes from Plaintiff's therapy reveal Plaintiff's mental and emotional struggle to cope with life after the accident, but also indicate an improvement over the course of the sessions, culminating in the notation in the final report that Plaintiff recognizes her progress and can reduce her therapy sessions. R. 206-14. Although there are no reports of Plaintiff's therapy after November 15, 2005, contained in the record, Plaintiff indicated in her testimony that she continues to see her therapist when necessary. R. 245. Plaintiff further testified that she had been taking Paxil for her depression. R. 236-37, 240.

According to a questionnaire completed by Plaintiff and Plaintiff's testimony, her impairments have had a limiting effect on nearly all of her activities of daily living, including her ability to do housework, shop, write, drive, shower and dress. R. 74-81, 234-36. Although Plaintiff does not go out to socialize, she does visit with family in her home, and she attends church. R. 235-36.

At the administrative hearing, the testimony of the VE indicated that a hypothetical individual sharing Plaintiff's restrictions and limitations could perform work existing in the national economy as a ticket taker or a parking booth attendant. R. 247-48.

After determining that Plaintiff had met the insured status requirements of the Act through December 31, 2009, and that Plaintiff had not engaged in substantial gainful activity since her protective filing, the ALJ found Plaintiff's below-the-elbow right arm amputation to be a severe impairment within the meaning of the Regulations, but did not meet or medically equal, either singly or combination with other alleged impairments, any of the listings in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). R. 14-16. The ALJ further found that Plaintiff's depression and anxiety did not enjoy the support of sufficient objective medical evidence in the record, and were therefore determined to be non-severe. Id. The ALJ determined that Plaintiff maintained the residual functional capacity ("RFC")*fn2 to engage in work activity at the light exertional level subject to certain modifications, which, in the main, allow for limitations corollary to the amputation of Plaintiff's dominant right arm. R. 16-19. Ultimately, the ALJ concluded that, although Plaintiff was unable to return to her past relevant work as a nurse's ...

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