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Krokus v. Astrue

March 30, 2010


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

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Plaintiff, Paul Krokus, Jr. ("Krokus" or "plaintiff"), brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of the final determination of the Commissioner of Social Security ("Commissioner" or "defendant") denying plaintiff's applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), as amended, 42 U.S.C. §§ 401-433 and 42 U.S.C. §§ 1381-1383(f).


Krokus filed an application for SSI benefits on May 30, 2006, and for DIB benefits on June 8, 2006, alleging disability since July 12, 2004, due to right arm, jaw and pelvis pain, post traumatic stress disorder, and seizures. (R. 95-99; 100-102; 117; 126). Krokus' claims were initially denied.*fn1 (R. 65-74). A hearing was held on November 6, 2007, in Morgantown, West Virginia, before Administrative Law Judge Norma Cannon ("ALJ"). (R. 27-60). Krokus was represented by counsel, Gregory T. Kunkel, and appeared and testified. (Id.). An impartial vocational expert ("VE"), was also present and gave testimony. (Id.). The ALJ issued an unfavorable decision on January 9, 2007, finding that Krokus was "not disabled" within the meaning of the Social Security Act.*fn2 (R. 11-23). The ALJ's decision became the Commissioner's final decision when, on July 25, 2008, the Appeals Council denied Krokus' request for review. (R. 1-5). Administrative remedies thus being exhausted, plaintiff brings the instant matter before this court, seeking judicial review of the Commissioner's decision. The parties have filed cross motions for summary judgment together with supporting briefs under Rule 56 of the Federal Rules of Civil Procedure, and the record has been developed at the administrative level. The matter is now poised for disposition.


Krokus was born on August 6, 1975, making him twenty-eight (28) years old at the onset of the alleged disability and thirty-two (32) years old on the date of the administrative hearing.

(R. 95; 34). 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 C.F.R. § 416.963.

Krokus graduated from college, and earned a degree in nursing. (R. 33; 118; 124). His employment history consists of work as a registered nurse for the Navy from September 1997 until July 12, 2004, the alleged disability onset date. (R. 33-34; 37; 118). Krokus surrendered his nursing license because he believed he was incapable of competently discharging his duties after the trauma of his daughter's death of SIDS at six months of age. (R. 33-34). During high school and college, he was self-employed in a lawn maintenance enterprise. (R. 38-39).

In October 2002, Krokus' jaw became infected resulting from a tooth extraction. (R. 169-80). Krokus was diagnosed with left mandibular osteomyelitis and endured several surgical interventions, including the extraction of additional teeth, the implantation of a reconstruction plate, and oral maxillofacial surgery, while still in the Navy. (Id.). On March 9, 2005, Krokus withstood a posterior iliac bone graft procedure in which bone was harvested from his right pelvis and grafted on to the left jaw. (R. 377-79).

An MRI was conducted on Krokus' right knee on June 9, 2005, revealing a tear of the posterior horn of the medial meniscus. (R. 350). Krokus endured a right knee arthroscopy and partial medial meniscectomy and chondroplasty of medial femoral condyle on July 6, 2005. (R 439-40; 562-63).

Krokus was treated in Greene County Memorial Hospital on August 18, 2005, for acute abdominal pain with chronic diarrhea. (R. 534-51). CT scans of the abdomen and pelvis were normal, and Krokus was discharged with diagnoses of mild diverticulosis, post traumatic stress disorder, chronic jaw pain, and gastroesophageal reflux disease. (R. 352; 534).

CT scans were conducted on Krokus' head on February 21, 2005, October 29, 2005, and May 26, 2006, all revealing normal findings. (R. 224; 308; 347). Radiology performed on December 11, 2005, indicated Krokus' pelvic structures were within normal limits. (R. 217). Radiology of Krokus' right wrist on January 19, 2007, showed no fracture or dislocation. (R. 486).

Krokus suffered a poisonous spider bite on his right forearm in the Spring of 2006. (R. 714). Afterwards, he reported weakness and tingling. (R. 710). Krokus was treated by David R. Sheba, D.O., ("Dr. Sheba"), following an irrigation and debridement of his right forearm. (R. 364-66). On April 28, 2006, the numbness and tingling were improving but he was still experiencing pain and pressure. (R. 366). Krokus began taking occupational therapy. (Id.). On May 12, 2006, Krokus was complaining of a burning sensation in his hand. (R. 365). Dr. Sheba noted limited range of motion of the wrist and fingers. (Id.). Dr. Sheba prescribed vicodin for Krokus' pain. (364-65).

On May 22, 2006, Krokus was found unresponsive with two fentanyl patches attached to his person and was transported to the West Virginia ...

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