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Turnbull v. Commissioner of Social Security

March 12, 2009


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

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Plaintiff John Turnbull brought this action pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-433. Presently before the court are cross-motions for summary judgment based on the record developed at the administrative level. After careful consideration of the decision of the Administrative Law Judge ("ALJ"), the briefs of the parties, and the entire record, it is clear that the substantial evidence as a whole demonstrates only that plaintiff is disabled within the meaning of the Act. Accordingly, Plaintiff's motion will be granted, Defendant's motion will be denied, and the matter will be remanded with direction to grant benefits consistent with an onset date of February 12, 2006.


Plaintiff protectively filed for DIB on November 22, 2004, alleging disability as of September 30, 2004 due to spinal stenosis, achondroplasia dwarfism, back problems, left leg pain, anxiety, panic attacks, and depression. (R. 14, 55-59, 69.) The state agency denied his claim on February 14, 2005. (R. 32-36.) At Plaintiff's request a hearing was held before ALJ Douglas W. Abruzzo on January 5, 2006 where Plaintiff, who was represented by counsel, and a vocational expert testified. (R. 761-806.) On May 8, 2006, the ALJ issued a decision finding Plaintiff not disabled. (R. 14-23.) On September 1, 2007, the Appeals Council denied Plaintiff's request for review. (R. 6-8) The instant action followed.


Plaintiff was born on July 22, 1963, making him forty-one years of age at the time of his asserted onset of disability and forty-two years of age on the date of the ALJ's decision. (R. 22.) This made him a younger individual within the meaning of 20 C.F.R. §1963(c). Plaintiff has a high school education and four additional years of education at the college level. Id. Plaintiff's past relevant work includes telemarketer, loan coordinator, auto salesman, sales representative, and office manager. Id.

Plaintiff was born with achondrodysplasia, commonly known as short-limed dwarfism.*fn1

(R. 189.) In December of 1983, Plaintiff was in a motor vehicle accident and has experienced back pain since that time. (R. 260.) Following the accident, Plaintiff underwent a fusion of the T12-L1-L2 vertebrae. (R. 260). In 1999, Plaintiff had a laminectomy at L1-L5 performed by Dr. John Moossy. (R.260, 545). Plaintiff also suffers from a neurogenic bladder and bowel problems which he controls with laxatives and medication. (R. 339-343).

Plaintiff was in a second car accident in September of 2001, which exacerbated his back pain. (R.260, 545). At that time, Plaintiff was referred to the Latrobe Area Hospital Pain Clinic by Dr. Michael Weinberg and received two treatments of epidural steroids in November of 2001.

(R. 126-133). On November 28, 2001, Plaintiff reported to his pain clinic doctor that he was not receiving relief from the epidural steroids and the remaining treatments were cancelled. (R.125).

Plaintiff was seen for back pain from an assault/fall in the Latrobe Area Hospital on February 23, 2002, and March 19, 2002. (R.157-58). On May 12, 2002, an x-ray at the Latrobe Area hospital indicated that Plaintiff had "abnormalities in the pelvic and hip joints consistent with chronic paralysis." (R.156).

On June 15, 2002, Plaintiff was seen at the Latrobe Area Hospital complaining of chronic back pain that radiated into his legs. (R.148). Plaintiff's pain physician at the time, Dr. John Horton of the Physical Medicine and Rehab Hospital, saw him on several occasions from January 2002 to August 2002. (R.164-187). At several of the later visits, Dr. Horton determined that Plaintiff was not complying with his pain contract. (R.164-187). Use of narcotic pain medication was discontinued. On August 14, 2002, Plaintiff requested a restoration of his narcotic medication and pain management. (R. 162). Dr. Horton denied the request because of Plaintiff's non-compliance with his pain contract. (R. 162).

On September 13, 2002, Plaintiff began treatment with a new pain specialist, Dr. Michael Toshok. (R. 305). Dr. Toshok prescribed Oxycontin and Oxycodone for Plaintiff's chronic low back pain to be used sparingly. (R. 305-307). He also referred Plaintiff to physical therapy. On November 11, 2003, Percocet was added to his medication regime. (R. 303). On April 2, 2003, Plaintiff complained of increased pain and Dr. Toshok increased his medications with the understanding that Plaintiff would not take more of them than prescribed. (R. 297). Dr. Toshok also suggested that Plaintiff discontinue his physical therapy if it was ineffective. (R. 297). On May 28, 2003, Plaintiff reported that the medications were allowing him to maintain his activities of daily living and that he was working full time. (R. 294).

On June 11, 2003, Plaintiff overdosed on Vicodin that were given to him by a friend and was admitted to Westmoreland Regional Hospital. (R. 262). The doctor suggested a drug rehabilitation program, but Plaintiff declined. (R. 264). On June 13, 2003, Plaintiff was admitted to the emergency room at Westmoreland Regional Hospital with elevated liver enzymes from excessive narcotic usage. (R.258-59). The doctor assessed that Plaintiff was not suicidal but had an adjustment disorder with disturbance of emotions and conduct secondary to chronic pain and an addiction to pain medications. (R.258-59). On June 14, 2003, Plaintiff was transferred to the University of Pittsburgh for treatment of his acute liver dysfunction secondary to acetaminophen toxicity. (R. 277).

On June 30, 2003, Dr. Toshok put Plaintiff on equal dosing of Oxycontin and Methadone.

(R. 293). On July 7, 2003, Dr. Toshok told Plaintiff that he would no longer write prescriptions for opiate analgesic medications because Plaintiff was attempting to barter for medication. (R. 292). On July 8, 2003, Plaintiff was admitted to Monsour Medical Center for withdrawal symptoms from his narcotic medications. (R. 311).

On October 3, 2003, Plaintiff was seen by Dr. Moossy, who had performed his prior laminectomy. Dr. Moossy reported that Plaintiff was suffering from the spinal canal narrowing associated with and expected from achondroplasia and superimposed C4-5 and C6-7 disc bulges with some canal stenosis at those levels. (R. 343). Dr. Moossy reported severe spinal stenosis at T12 due to complications from the first car accident. (R. 343). Dr. Moossy suggested a second decompression and fusion. (R. 343). However, Dr. Moossy qualified his recommendation by noting that "[he] did not believe that [the] operation [would in] any way help [Plaintiff's] back pain, but [he thought] it had some reasonable chance of regaining some of [Plaintiff's] improvement he had in his leg function after his lumbar decompression..." (R. 343).

On May 12, 2004, Plaintiff was again seen by Dr. Moossy. (R. 339). Dr. Moossy reported that Plaintiff's symptoms had plateaued and that he was still having burning in his legs and difficulty with bladder control. (R. 339). Plaintiff declined a third corrective surgery because he had only received two years of relief from the second surgery. (R.339). On September 1, 2004, Plaintiff overdosed on Oxycodone, but denied suicidal thoughts. (R. 349).

On November 11, 2004, Plaintiff filled out a questionnaire and reported that he lived alone in a three story home, did not depend on anyone else for care, could drive locally daily with extensions on the foot pedals, could take out the trash, could prepare meals, could run the vacuum, could grocery shop and load and unload two bags from the car, could do laundry with occasional stopping and resting, could walk 100 yards without stopping, could sit for 10-15 minutes before changing position, could carry 15-20 pounds, could dress and shower without resting, could take care of personal needs without reminders, could get along with people in authority, could go out in public without difficulty, was a member of a Pitt Alumni group and a church council, could plan his days, could adjust to changes in a daily schedule, could make decisions on his own, had no trouble getting along with supervisors, and had no trouble with workplace changes. (R.104-113.)

On January 21, 2005, Plaintiff was evaluated by Dr. Peter Saxman, a clinical psychologist. Dr. Saxman diagnosed plaintiff with major depression, moderate; personality disorder with narcissistic, ...

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