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Colgan v. Astrue

September 30, 2009

HAROLD D. COLGAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

OPINION

I. Introduction

Harold Colgan ("Plaintiff") brought this action pursuant to 42 U.S.C.§405(g) and 1383(c)(3) for review of the final determination of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. As is the customary practice in the United States District Court for the Western District of Pennsylvania, the parties have submitted cross-motions for summary judgment based on the record developed at the administrative proceedings.

After careful consideration of the decision of the Administrative Law Judge ("ALJ"), the briefs of the parties and the entire administrative record, the Court finds that the decision of the Commissioner is not supported by substantial evidence. Therefore, Plaintiff's motion for summary judgment will be granted and the Commissioner's motion for summary judgment will be denied, and the matter will be remanded with direction to recognized that Plaintiff was disabled on or before September 18, 2007.

II. Procedural History

Plaintiff protectively filed for SSI and DIB on April 5, 2006, (R. at 64), alleging disability due to right arm tremor, arm, hip and leg pain, (R. at 67), with an alleged onset date of February 8, 2006. (Id.). Plaintiff's claims were initially denied by the state agency on October 23, 2006.

(R. at 31). Plaintiff filed a timely request for a hearing on December 13, 2006. A hearing was held before ALJ Raymond Zadzilko on November 16, 2007. (R. at 13, 226-255). Plaintiff appeared and testified, represented by counsel. (R. at 226-249). The ALJ also heard the testimony of an impartial vocational expert. (R. at 249- 253). On January 18, 2008, the ALJ issued a decision, finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 13-22). Plaintiff filed a request for review of the ALJ's decision on March 19, 2008, (R. at 9), which was denied by the Appeals Council on May 12, 2008. (R. at 5-8).

III. Statement of the Case

Plaintiff's Background

Plaintiff was born on June 19, 1965, making him forty-two years old at the time of the hearing. (R. at 230). He testified that he completed high school and served in the military as a coal mine engineer from 1983 to 1986. (R. at 231).

Plaintiff's past work experience includes work as a conference set up manager at a ski resort from 1990 to 1995. (R. at 232-233). His duties in this position included setting up and tearing down tables and chairs in conference areas. (R. at 233). Immediately prior to his alleged onset date, Plaintiff worked as a carpenter and laborer, building houses. (R. at 233-234). He frequently lifted in excess of fifty pounds, and sometimes lifted in excess of 100 to 200 pounds.

(R. at 235). He began to have tremors in his right (dominant) hand and could not perform the necessary job requirements as a result of the tremors and loss of strength. (R. at 235). He then began to work part-time at Capital Glass in an effort to support himself. (R. at 236). According to Plaintiff, however, in this position he was required to tend to machines, but was unable to keep up with the work as a result of the shaking in his right arm. (R. at 237-238).

Plaintiff's Medical Records

Treatment notes from Plaintiff's primary care physician, Dr. William Kozak, indicate that Plaintiff was first seen in January of 2006 with complaints of twitching in his right hand. (R. at 135). Plaintiff reported that the twitching began six months prior to this visit and continued to become progressively worse. (Id.).

According to the medical evidence of record, Plaintiff was seen with complaints of tremor and weakness in his right arm in February of 2006 at Frick Hospital emergency department, after passing out. (R. at 111-115). He was prescribed Valium, (R. at 113), and had a chest x-ray, which was normal. (R. at 116). Additionally, an MRI of the cervical spine was performed, which showed that there was a small area of bone erosion secondary to either bone injury or arthritis and small fluid collection in the subcoracoid region. (R. at 122).

Plaintiff was seen by Dr. Shobha Asthana, a neurologist, on March 7, 2006. (R. at 128). At this visit, Plaintiff reported weakness and pain in his right upper extremity, as well as pain and weakness in his right leg at night. (Id.). Dr. Asthana noted distinct tremors in Plaintiff's right arm. (R. at 130). Additionally, a handwriting sample revealed micrographia. Dr. Ashtana further noted that Plaintiff had right arm rigidity with posturing and tremors. (Id.). He recommended an MRI of the brain and provided Plaintiff with samples of Mirapex for tremors. (Id.). Dr. Asthana saw Plaintiff again on April 18, 2006. (R. at 124). According to records from Dr. Asthana, a neurological exam showed a mild tremor in Plaintiff's right arm. (Id.). Dr. Asthana's impression was that it was possible Dystonia or Parkinson's disease. (Id.). Additionally, records from this visit indicate that Plaintiff complained of pain in his right hip and leg, as well as tremors in his right foot. (Id.). He was prescribed a higher dosage of Sinemet. (Id.). An MRI of the cervical spine performed on April 10, 2006 was normal. (R. at 125).

Plaintiff was seen by Dr. Alejandro Torres-Trejo at West Virginia University Hospital in July 2006. (R. at 139). Plaintiff was observed during sleep and had no tremors, but had noticeable tremors while awake. (R. at 139). Plaintiff reported to Dr. Torres-Trejo that his right hand shook constantly and prevented him from using it. (R. at 140). Dr. Torres-Trejo opined that the tremors were possibly non-epileptic seizures. (R. at 149). In November 2006, Dr. TorresTrejo saw Plaintiff again for examination. (R. at 200). At this time, Dr. Torres-Trejo opined that he had an upper right extremity tremor that was not responding to any medications. (Id.).

Plaintiff saw Dr. Michael Parsons, a professor of behavioral medicine at West Virginia University on August 30, 2006. (R. at 160). Dr. Parsons opined that Plaintiff's right upper extremity tremors appeared to be consistently present at rest and at intentional movement. (R. at 161). Dr. Parsons further opined that, while he could not "absolutely rule out a role of psychogenic factors ... no frank evidence of somatoform disorder was revealed. He showed an appropriate and expected level of distress about his symptoms and seems to be doing adequately in terms of coping with its impact." (Id.).

Records from Frick Hospital indicate that Plaintiff was seen in September of 2006 in regard to his hand tremors. (R. at 153). Plaintiff also complained at this time that he was unable to extend his right elbow. (Id.). At this point, the records indicate that Plaintiff was being followed by a neurologist but the cause of the tremors was still unknown. (R. at 156). He was prescribed Ibuprofen, Skelaxin and Vicodin. (R. at 158-159).

Plaintiff was referred to Dr. Cathrin Buetefisch at the West Virginia University Department of Neurology in April 2007. (R. at 182). Dr. Beutefisch noted:

This is a very puzzling patient. In reviewing his workup and examination, it seems likely that there is a neurological component to his right-sided abnormality which could be early hemi-Parkinson syndrome, manly presenting with a resting tremor. However, in addition, he seemed to have a voluntary component to it, which could be a conversion reaction which is not clear to me. It clearly looks like the patient is actively holding the arm in a flexed position and generating the movement to some extent. At this point, I would recommend a second opinion ...

(R. at 183). She prescribed Artane and Requip to address the hemi-Parkinson syndrome. (Id.). Plaintiff was seen for a second opinion by Dr. Joseph Chipman, a neurologist at Allegheny General Hospital. (R. at 193-195). On examination Dr. Chipman noted that Plaintiff had decreased strength in his right upper extremity. (R. at 194). Additionally, Dr. Chipman noted that Plaintiff had significant cogwheel rigidity of the right upper extremity and that his left upper extremity was normal. (Id.). He noted that Plaintiff's gait was normal and that he had decreased arm swing of the right arm and a rolling resting tremor of his right hand. (Id.). As a result of his examination, Dr. Chipman diagnosed Plaintiff with Hemiparkinsonism. (R. at 194). His treatment notes state:

There are certain symptoms that the patient has which meet the criteria for Parkinson disease which include cogwheel rigidity as well as a resting tremor. However, there are some features on his examination which are not consistent with Parkinson disease such as good eye blink and good expression of face. However, at this time, we would have to say that this is hemiparkinsonism.

(Id.). Dr. Chipman prescribed Requip and asked Plaintiff to taper off Artane. (R.a t 194-195).

Plaintiff had a consultative psychological evaluation by Dr. Lenny Detore, Ed.D. on October 11, 2006. (R. at 163). Dr. Detore noted that during the evaluation Plaintiff had a constant tremor in his right hand that never lessened throughout the interview. (R. at 165). Dr. Detore opined that Plaintiff had no psychiatric problems or problems in emotional functioning.

(R. at 166). His assessment was that Plaintiff "would be capable of performing his work-related duties emotionally and intellectually, but not physically." (Id.).

At the administrative hearing, Plaintiff testified that he became unable to work at his past construction job as a result of tremor and lack of strength in his right arm. (R. at 235). He also testified that, after leaving this job, he attempted to work for roughly four or five months at a glass factory, but was eventually unable to do the work because of his symptoms. (R. at 236). According to Plaintiff, in addition to being unable to work at any of his previous positions, he is unable to drive, as he finds it difficult to pull his foot off the gas in a timely fashion because he is unable to raise his right leg. (R. at 230). He takes Requip three times a day, but that his symptoms appear to be getting progressively worse. (R. at 242). He shakes eighty to ninety percent of the day, continuously. (Id.). He is unable to write or pick up a quarter with his ...


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