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Weimer v. Astrue

March 11, 2009

ROGER B. WEIMER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION

Introduction

This is an appeal from the final decision of the Commissioner of Social Security ("Commissioner or "defendant") denying the claim of Roger B. Weimer ("plaintiff") for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 1381-83f. Plaintiff contends that the decision of the administrative law judge (the "ALJ") that he is not disabled, and therefore not entitled to benefits, should be reversed because the decision is not supported by substantial evidence. Defendant asserts that the decision of the ALJ is supported by substantial evidence. The parties filed cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Summary judgment for neither party shall be granted, and the case will be remanded for the ALJ to explain what weight should be given to the opinion of plaintiff's treating physician.

Procedural History

On October 10, 1989, plaintiff, who was then twenty-seven years old, protectively applied for SSI benefits allegingthat he was disabled due to trauma from a gunshot wound to the head.

(R. at 63-66.) On March 12, 1990, the Commissioner found plaintiff disabled due to a gunshot wound to the head causing brain damage. (R. at 67.) His condition was determined to equal "the intent of Listing 12.05C." (R. at 69.) Plaintiff was then awarded SSI benefits beginning October 1, 1989. (Id.)

The Commissioner reviewed plaintiff's case on March 31, 2004, to determine if he was still disabled. (R. at 69-72.) The state agency found that plaintiff was no longer disabled as of March 2004 (R. at 68.) Plaintiff requested reconsideration of that decision (R. at 73-75), and a disability hearing officer upheld the determination on reconsideration. (R. at 76-95.) Plaintiff requested a hearing before an administrative law judge. (R. at 98.) The hearing request was dismissed because plaintiff failed to appear for his hearing on January 19, 2006. (R. at 420-27.) On March 31, 2006, the Appeals Council vacated the dismissal and remanded the case to the ALJ. (R. at 430-32.)

On remand, the ALJ held a hearing on December 5, 2006. (R. at 22-56.) Plaintiff was present at this hearing and represented by counsel. (R. at 22, 24-25.) A vocational expert ("VE") was also present and gave testimony. (R. at 22, 48-53.) On February 13, 2007, the ALJ decided that plaintiff's mental condition had improved and he no longer met or medically equaled Listing 12.05C. (R. at 9-21.) In addition, the ALJ decided that plaintiff did have the ability to perform a number of jobs in the local and national economies which would accommodate his functional limitations. (Id.) As a result, the ALJ concluded that plaintiff's alleged disability had ended on March 1, 2004. (Id.) Plaintiff requested a review of the ALJ's February 2007 hearing decision (R. at 8) and was denied by the Appeals Council. (R. at 5-7.) Plaintiff filed the present action seeking judicial review of the ALJ's decision.

Plaintiff's Background and Medical Evidence

Plaintiff was forty-five years old at the time of the December 5, 2006 administrative hearing. (R. at 48.) He had a general education diploma and no prior work experience. (Id.) He last received SSI benefits in May 2004 (R. at 71), but he continued to receive welfare benefits including cash, food stamps, and medical assistance. (R. at 43-44.)

The record shows that plaintiff sustained a self-inflicted gunshot wound to the head on September 13, 1989. (R. at 284.) As a result, he underwent a right temporal craniotomy with debridement. (Id.)*fn1 . The effects from plaintiff's head injury included brain damage (R. at 324), vision problems, and some gait and balance difficulties. (R. at 341.)

On December 31, 1989, Dr. Steven P. Kuric submitted a report regarding the plaintiff.

(R. at 341-42.) Plaintiff seemed to be doing well but had a left visual field deficit due to the gunshot wound injury in addition to some gait and balance difficulties due to the central cord infarct.*fn2 (R. at 342.) He was also taking prophylactic Phenobarbital*fn3 , which the doctor believed plaintiff would be taking for a long time and possibly his lifetime. (R. at 341.) Visual testing revealed that plaintiff had left homonymous hemianopsia.*fn4 (Id.) Dr. Kuric's final diagnosis was central spinal cord syndrome, secondary to spinal cord infarct with residual gait and coordination difficulties.*fn5 (R. at 341-42.)

In December 1989 and January 1990 Dr. Peter Saxman conducted an assessment of plaintiff using the Wechsler Adult Intelligence Scale-Revised (WAIS-R), Wechsler Memory Scale, Bender Motor Gestalt Test, and the Trailmaking Test. (R. at 321-22.) Plaintiff's WAIS I.Q. scores were 88 (verbal), 60 (performance), and 74 (full scale). (R. at 322.) His verbal I.Q. score fell in the low average range, performance I.Q. score fell in the mild range of mental retardation, and his full scale I.Q. score fell in the range of borderline mental deficiency. (R. at 323.) For the Wechsler Memory Scale, plaintiff scored an 89, which placed him in the low average range of memory functioning. Plaintiff showed definite perceptual disturbances during the administration of the Bender Motor Gestalt Test; his performance suggested brain damage in the visual spatial areas. (Id.) Plaintiff's time score on the Trailmaking ...


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