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McCartney v. Commissioner of Social Security

May 8, 2009


The opinion of the court was delivered by: Lenihan, M.J.

Doc. Nos. 11 & 14


Currently before the Court for disposition are Plaintiff's Motion for Summary Judgment (Doc. No. 11) and Defendant's Motion for Summary Judgment (Doc. No. 14) in this Social Security appeal. For the reasons set forth below, the Court will deny the Plaintiff's Motion, grant the Defendant's, and affirm the decision of the Commissioner of Social Security to deny Plaintiff's application for benefits.


On November 16, 2007, Terrence McCartney ("Plaintiff"), by his counsel, timely filed a complaint pursuant to Section 205(g) and of the Social Security Act, as amended, 42 U.S.C. § 405(g), for review of the Commissioner's final determination disallowing his claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under titles II and XVI of the Social Security Act, 42 U.S.C. § 401-433, 1381-1383f. The history of Plaintiff's claim is as follows.

On January 14, 2004, Plaintiff protectively filed for DIB and SSI payments alleging that he became disabled on July 23, 2003 due to head and neck injuries that allegedly resulted when he fell off the step of his tractor-trailer truck and hit his head while working as a truck driver. Plaintiff claims to suffer from bad head aches, dizziness, memory problems, left arm and hand numbness and weakness, and neck and back pain, as a result of his head and neck injuries. On September 14, 2001, the Social Security Administration denied his initial applications. Plaintiff filed a timely request for a hearing which was held on March 22, 2006 before Administrative Law Judge Michael F. Colligan (ALJ), at which Plaintiff appeared and testified. On April 25, 2007, the ALJ denied Plaintiff's claim for benefits, concluding that although Plaintiff had severe impairments,*fn1 he retained the residual functional capacity to perform a significant range of light, unskilled work, with certain restrictions, and that such work existed in significant numbers in the national economy . (R. 28-30.) On June 18, 2007, Plaintiff filed a timely request for review of the ALJ's decision (R. 10), which the Appeals Council denied on September 18, 2007 (R. 4). Plaintiff then filed the present action in this Court.

On appeal to this Court, Plaintiff claims the ALJ erred in three respects: (1) the ALJ erred as a matter of law at step two of the sequential evaluation process when he found that Plaintiff's headaches following his accident were not severe, despite evidence that his headaches had more than a de minimus impact on his ability to work; (2) the ALJ erred as a matter of law at step five when he failed to include, explicitly or implicitly, any limitations related to Plaintiff's headaches in his hypothetical question to the vocation expert and therefore, the vocation expert's response does not provide substantial evidence to support the ALJ's decision to deny benefits; and (3) the ALJ committed clear error when he failed to take in to account Plaintiff's military service and work history of twenty-plus years in making his credibility assessment of Plaintiff. For the reasons set forth below, the Court finds no merit to Plaintiff's arguments.


Plaintiff was born on April 19, 1959 and was thus 46 as of the date of his administrative hearing. He has a high school education, followed by seven years in the United States Marine Corps. (R. 54.) After being honorably discharged from the Marine Corps in October1983, Plaintiff worked as a truck driver from April 1993 until his accident in July 2003. (R. 54, 68, 79, 105-06.) The vocational expert testified that Plaintiff's work as a truck driver at the time of his accident, which involved securing a load with a tarp and chains to a flatbed tractor trailer, was performed at the medium and heavy exertional levels and was semi-skilled work. (R. 296.)

Plaintiff alleges that his disability began on July 28, 2003 (R. 54), as a result of head and neck injuries sustained when he fell off a step of his tractor trailer truck on that same date. (R. 67.) In particular, Plaintiff claims that he suffers from the following conditions which limit his ability to work: bad headaches, dizziness, bad memory, neck and back pain, and numbness in his left arm and hand. (R. 67.)*fn2 Plaintiff received a small settlement for his workers' compensation claim related to the July 28, 2003 accident. Plaintiff attempted to return to work on two occasions in 2005 since his accident--the first attempt lasted a little over one month, while the second attempt lasted only one week. (R. 104.)

The medical records show that immediately following his accident on July 28, 2003, Plaintiff was taken to the outpatient emergency room department at Licking Memorial Hospital, complaining of head injury, headaches and dizziness, mild vertigo with head movement, mild nausea, some blurring of vision, and some soreness and stiffness to posterior neck. (R. 111-14.) X-rays of the cervical spine revealed significant arthritis but no acute fracture or dislocation, and no soft tissue edema was noted. (R. 113.) A CT scan of the head revealed no acute injury. (R. 114.) The emergency room physician diagnosed a concussion, cervical sprain, and cervical arthritis. Plaintiff was given a prescription for percocet and recommended that he be reevaluated with his primary care physician (PCP) when he returned home. (R. 112.)

On September 25, 2003, Plaintiff had another CT scan done of his head at the request of his PCP, Dr. Philip Iozzi. (R. 131.) The results of that scan revealed small, focal cerebral lesions, non-specific, possibly presenting old ischemically involved areas. There was no indication of obvious new or recent abnormality.

Upon receiving the results of the September 25, 2003 CT scan, Dr. Iozzi referred Plaintiff to a neurologist, Dr. Barry Resnick. Plaintiff first treated with Dr. Resnick on October 16, 2003. (R. 195-97.) At that time, Dr. Resnick noted that Plaintiff complained of a headache since the accident, as well as left arm problems and some incoordination in the arm. Plaintiff's left arm problems were supported by an EMG and nerve conduction studies, which revealed left median nerve entrapment. Dr. Resnick further noted Plaintiff's complaints of episodes of confusion and difficulty remembering details since the accident. Plaintiff's only medication at that time was aspirin. Dr. Resnick impressions were (1) ataxia in the left arm, further complicated by Plaintiff's left-handedness (or being ambidextrous); and (2) confusional episode possibly due to other trauma to brain at the time of the accident. Dr. Resnick ordered an MRI scan of the brain and an EEG.

An MRI scan of Plaintiff's brain was performed on November 3, 2003, which revealed numerous deep white matter hyperintensities in the periventricular and subcortical regions of both cerebral hemispheres, predominantly in the frontal and parietal regions. (R. 255.) These findings were suggestive of a demyelinating disorder, such as multiple sclerosis, or possibly chronic ischemia from small vessel disease. (Id.) An EEG was conducted on November 8, 2003, which revealed normal awake and drowsy EEG. (R. 119.)

On November 25, 2003, Plaintiff was again seen by Dr. Resnick for a follow up visit and the results of the diagnostic tests. (R. 193-94.) Dr. Resnick noted that Plaintiff still had ataxia in the left arm and a headache. Dr. Resnick further noted that the MRI findings suggested demyelinating disease, and he ordered a cerebral spinal fluid (CSF) examination to evaluate his condition further.

Plaintiff next saw Dr. Resnick on January 9, 2004 for the results of the CSF procedure. (R. 184-85.) At that time, Plaintiff stated he had no improvement with his symptoms and in fact stated that his left hand felt weaker. The results of the CSF exam showed cell counts ranging between 4 and 6 white cells with no red cells; protein level was 63 with a glucose of 69; the IgG index was markedly elevated at 14.1. Based on the physical findings on examination, the MRI findings and the results of the CSF, Dr. Resnick diagnosed Plaintiff with probably multiple sclerosis. He suggested a treatment consisting of a trial of immunomodulating agents, but Plaintiff refused to consider any form of injectable agents. Plaintiff was placed on prednisone with a 15-day taper.

On January 16, 2004, Plaintiff presented to the emergency room of Aliquippa Community Hospital complaining of blood trickling from his left ear, and reported having severe headaches for several months. (R. 132-38.) Plaintiff was diagnosed with an ear infection/inflammation and discharged with medication.

On February 9, 2004, Plaintiff was again seen by Dr. Resnick. (R. 182-83.) Plaintiff's biggest complaint at that time was headaches, which he has had since his accident. Plaintiff completed his course of prednisone and reported that his headaches had improved but his left arm ataxia did not. Dr. Resnick prescribed Elavil 25 mg. for his headaches, and also encourage Plaintiff to try over-the-counter medications. Plaintiff noted that he has tried Excedrin Migraine and Alelve in the past, and the former has helped, but Aleve did not.

Plaintiff sought a second opinion from another neurologist, Dr. Marina Zaretskaya, on February 5, 2004. (R. 218-220.) Dr. Zaretskaya's neurological exam revealed that Plaintiff was awake, alert and appropriate, and was able to provide information regarding his present illness and past medical history. The exam also revealed that Plaintiff missed a point on the left side while performing finger to nose probe. Dr. Zaretskaya noted that Plaintiff's sister was also present during the exam and she provided additional information and reported that she noticed a dramatic change in Plaintiff's short-term memory, as well as his affect. Dr. Zaretskaya reviewed the report of his MRI and was concerned that it was done without contrast strudy. Dr. Zaretskaya also reviewed the results of his CSF analysis and the office notes of Dr. Resnick. Dr. Zaretskaya's impression was headaches, left arm numbness sensation of undetermined etiology, memory decline and abnormal MRI. Dr. Zaretskaya ordered another MRI scan of the brain with contrast, and an MRI of the cervical and thoracic spine.

On February 7, 2004, Plaintiff underwent an MRI of his thoracic spine with and without contrast. (R. 257.) The results revealed a small central posterior disc protrusion at T9-10, but was otherwise unremarkable. On that same date, an MRI of the brain was conducted with and without contrast. (R. 258.) The results of that MRI showed multiple areas of abnormal signal intensity in the supratentorial white matter bilaterally which, for a person of Plaintiff's age, was suspicious for a demyelinating disease such as multiple sclerosis. Other possibilities included inflammation/infection and chronic small vessel ischemic disease.

Plaintiff presented again to Dr. Zaretskaya on February 12, 2004 to review his test results. (R. 215-217.) Plaintiff's main concern continued to be memory decline, numbness sensation in his left arm, and headaches. Dr. Zaretskaya noted that the abnormal result on the MRI of Plaintiff's brain is consistent with the diagnosis of multiple sclerosis. Dr. Zaretskaya discussed with Plaintiff and his sister different treatment options for multiple sclerosis and provided them with information on various medications. Dr. Zaretskaya ordered prolonged EEG studies,*fn3 started Plaintiff on physical therapy with massage therapy for his neck discomfort and headaches, and referred Plaintiff to Dr. Michael Franzen for a neuropsychological evaluation for his memory decline.

On April 16, 2004, Plaintiff presented to Michael Franzen, Ph.D.,*fn4 for a neuropsychological evaluation to determine whether his memory problems were due to an organic brain injury or a result of his affective difficulties. (R. 250.) During that evaluation, Plaintiff stated to Dr. Franzen that since the accident, he has experienced significant problems with short-term memory, significant anxiety and depression, chronic headaches, and poor sleep. Plaintiff further reported that although he was diagnosed with multiple sclerosis in December of 2003, he was not currently experiencing any symptoms. Dr. Franzen administered a number of tests to assess intelligence, attention/concentration, memory, visuo-perception, -construction and -motor skills, cognitive/executive functioning, and personality traits and clinical symptoms. (R. 250-53.) The results of these tests indicated that Plaintiff was not exaggerating or fabricating his neuropsychological deficits, particularly in the area of memory. The results further revealed significant difficulties with attention and impulsivity; difficulties with vigilance; average to low average in all measures of memory; no indication of difficulty with visuo-perception or -construction skills; evidence of impairment with fine motor coordination; executive functioning ranged from borderline to average; some difficulty with inhibition; difficulty with attention and concentration; difficulty with depression; and endorsement of some suicidal ideation. Dr. Franzen's diagnostic impressions were: (1) Cognitive Disorder NOS; (2) Major Depressive Disorder, Single Episode, Moderate; (3) Personality Change due to head injury, combined type (with features of disinhibition, aggression, and paranoia). Dr. Franzen also assessed a Global Functioning Assessment (GAF) score of 45.*fn5

Based on the results of his neuropsychological evaluation, Dr. Franzen concluded that Plaintiff had significant difficulties with attention, vigilance, and impulsivity. (R. 254.) He further concluded that Plaintiff's overall memory abilities were fairly consistent and in the low average range, and his ability to retrieve and retain information remained in the average range. Dr. Franzen further concluded that Plaintiff had superior visuo-constructional and -perceptional abilities, but noted evidence of bilateral impairment of Plaintiff's fine motor coordination. Also, Dr. Franzen concluded that Plaintiff's problem-solving ability is average, and noted executive functioning deficits in the areas of inhibition and cognitive speed. Dr. Franzen opined that Plaintiff was currently experiencing cognitive deficits consistent with a closed head injury, and the evidence suggested that he was having difficulty coping with feelings of depression and anxiety, and had endorsed some suicidal ideation. Dr. Franzen recommended that Plaintiff undergo therapy to learn strategies to compensate for his cognitive deficits and skills for appropriately coping with depression and anger and suggested referral to a psychiatrist for management of psychotropic medications. (Id.)

On April 23, 2004, Plaintiff was again seen by Dr. Zaretskaya for a follow up appointment and to obtain the results of his EEG, which was normal. (R. 241.) Dr. Zaretskaya noted that Plaintiff reported that physical therapy helped him dramatically, as his dysesthesia sensation and numbness sensation completely resolved and he achieved dramatic improvement with his headaches. Dr. Zaretskaya noted that he had prescribed Pamelor therapy for Plaintiff's headaches but Plaintiff could not tolerate it and discontinued it. Dr. Zaretskaya also discussed Dr. Franzen's report and recommendations with Plaintiff. Dr. Zaretskaya's impressions were status/post-accident, with headaches, behavioral changes and memory decline, which has been slowly improving. (R. 242.) Dr. Zaretskaya recommended a course of prophylaxis therapy to help Plaintiff with his memory, headaches, and energy level, which was also recommended by Dr. Franzen, and prescribed a course of Effexor therapy. Dr. Zaretskaya also suggested a referral to the brain injury center with Dr. Goldberg to see if rehabilitation therapy plus involvement of a psychologist, would help.

A Residual Functional Capacity Assessment - Mental (RFC-Mental) and Psychiatric Review Technique (PRT) were completed on May 28, 2004 by Manella C. Link, Ph.D. (R.156-71.) The PRT indicates that Plaintiff suffers from a medically determinable impairment that does not precisely satisfy the diagnostic criteria of Listing 12.02 Organic Mental Disorders, and identifies the disorder as "Cognitive Disorder, NOS with Personality Changes contributed to head trauma." (R. 157.) The PRT further indicates that Plaintiff suffers from a medically determinable impairment that does not precisely satisfy the diagnostic criteria of Listing 12.04 Affective Disorders, and identifies the disorder as "Major Depressive Disorder." (R. 159.) The PRT also assessed Plaintiff's functional limitations under the "B" criteria of Listings 12.02 and 12.04. (R. 166.) Mild limitation was noted with regard to ADLs and maintaining social functioning, while moderate limitation was found to exist as to maintaining concentration, persistence or pace. (Id.)

The RFC-Mental assesses moderate limitations in the areas of understanding and remembering detailed instructions, carrying out detailed instructions, maintaining attention and concentration for extended periods, performing activities within a schedule, maintaining regular attendance and being punctual within customary tolerances, being able to work in close proximity to others without being distracted, accepting instructions and responding appropriately to criticism from supervisors, and responding appropriately to changes in the work setting. (R. 169-70.) In all other areas, Plaintiff was rated as not significantly limited. In the explanation of findings, the reviewing psychologist noted the results of Dr. Franzen's neuropsychological testing of Plaintiff, as well as his past work history, extensive training and certifications through the military, and independent ADLs, in concluding that Plaintiff's limitations from his impairments do not preclude him from meeting the basic mental demands of competitive work on a sustained basis. (R. 171.)

On June 15, 2004, Plaintiff was seen again by Dr. Zaretskaya for a follow up appointment and complained that he continued to have problems with headaches and memory decline, with difficulty concentrating, and has exhibited some behavioral changes and mood alterations. (R. 239.) Dr. Zaretskaya noted Plaintiff was improving on the Effexor therapy and would continued to be followed by him. Dr. Zaretskaya also referred Plaintiff to Dr. Goldberg at the Brain Injury Center at Mercy Hospital and to neuropsychologist, Dr. Rubinsky. (R. 240.) As for the possible demyelinating disorder, Plaintiff indicated he did not want to undergo immunomodulating therapy at that time, but preferred to be followed with serial MRIs.*fn6

A Residual Functional Capacity Assessment - Physical (RFC-Physical) was completed on June 18 and 21, 2004 by a state agency medical consultant, Dr. Frank Bryan, M.D. (R. 172-81.) The state agency medical consultant assessed the following exertional limitations: lift and/or carry 20 lbs. occasionally and 10 lbs. frequently; stand and/or walk and sit 6 hours in an 8-hour work day. (R. 173.) No other limitations of any kind were noted. (R. 174-77.) In his explanation of findings, the medical consultant discussed the reports of Plaintiff's treating neurologists, Doctors Resnick and Zaretskaya, and noted incorrectly that the results of the enhanced MRI of Plaintiff's brain was within normal limits. (R. 180.) The medical consultant also noted that Plaintiff lived alone, had headaches and neck pain, and was currently going to physical therapy. (R. 181.) The medical consultant remarked that Plaintiff left many of his ADLs blank, yet noted several tasks that Plaintiff was able to perform with regard to self grooming/self-care activities, carrying and unloading groceries, and ambulating. (Id.) The medical consultant did note, however, that Plaintiff reported being able to walk about 1/2 mile but then must stop due to pain, and that sometimes bending over quickly made him dizzy. (Id.) Based on ...

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