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Fry v. Astrue

July 21, 2010


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



Plaintiff Charles J. Fry ("Fry") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final determination of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits under Titles II and XVI of the Social Security Act ("Act") [42 U.S.C. §§ 401-433, 1381-1383f]. The parties have filed cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56, and the record has been developed at the administrative level. For the reasons that follow, the motion for summary judgment filed by Fry (Document No. 8) will be denied, the motion for summary judgment filed by the Commissioner (Document No. 10) will be granted, and the administrative decision of the Commissioner will be affirmed.


Fry initially applied for DIB and SSI benefits in September 2005, alleging that he had become disabled on January 7, 2005. R. 156, 161. The applications were administratively denied on January 18, 2006. R. 69, 74. Under the Commissioner's regulations, a claimant seeking to contest an initial denial has sixty (60) days from his or her receipt of the denial notice to request a hearing before an administrative law judge. 20 C.F.R. §§ 404.933(b)(1), 416.1433(b). This period of time can be extended if a claimant shows that he or she had "good cause" for not requesting a hearing within the requisite sixty-day limitations period. 20 C.F.R. §§ 404.933(c), 416.1433(c). On August 8, 2006, Fry filed an untimely request for an administrative hearing. R. 79. In a letter dated May 31, 2007, Administrative Law Judge Patricia C. Henry informed Fry that his hearing request had been untimely, and that he had fifteen days to submit a written explanation as to why he had failed to meet the sixty-day deadline. R. 85. Fry apparently failed to respond to Judge Henry's letter. R. 64. Therefore, his request for a hearing was dismissed on June 28, 2007. R. 62-65.

Fry protectively applied for DIB and SSI benefits on October 4, 2007, alleging disability as of June 1, 2005. R. 9, 26, 170, 174. The applications were initially denied on January 29, 2008. R. 86, 90. Fry responded on March 11, 2008, by filing a timely request for an administrative hearing. R. 98-100. On October 15, 2008, a hearing was held in Johnstown, Pennsylvania, before Administrative Law Judge John J. Mulrooney II (the "ALJ"). R. 23. Fry, who was represented by counsel, appeared and testified at the hearing. R. 27-51. Irene Montgomery ("Montgomery"), an impartial vocational expert, also testified at the hearing. R. 51-57. In a decision dated November 17, 2008, the ALJ determined that Fry was not "disabled" within the meaning of the Act. R. 6-22. The Appeals Council denied Fry's request for review on May 29, 2009, thereby making the ALJ's decision the final decision of the Commissioner in this case. R. 1. Fry commenced this action on June 10, 2009, seeking judicial review of the Commissioner's decision. Doc. Nos. 1 & 3. Fry and the Commissioner filed motions for summary judgment on September 16, 2009, and October 21, 2009, respectively. Doc. Nos. 8 & 10. These motions are the subject of this memorandum opinion.


Fry was born on July 15, 1975. R. 20. He has a long history of asthma and related pulmonary conditions. On July 23, 2003, Fry went to Westmoreland Regional Hospital ("Westmoreland") with sharp pains in the left side of his chest. R. 277. A computed tomography ("CT") scan of Fry's chest depicted a "complete collapse" of his "left upper lobe."

R. 286. Dr. Joseph A Kearney, who read the results of the CT scan, was unable to determine whether Fry's condition was due to "a mass at the bronchial orifice," "a large mucous plug," or an "isodense foreign body." R. 286. Dr. Samual L. Hammerman recommended that Fry undergo a bronchoscopy, but Fry refused to follow this recommendation. R. 285. Fry apparently left Westmoreland against medical advice after being advised of the risks associated with that course of action. R. 278. He was given prescriptions for Prednisone, Advair and Doxycycline. R. 285.

On December 26, 2004, Fry went to Monsour Medical Center ("Monsour") because he had run out of inhalers. R. 312. He was experiencing shortness of breath, coughing and wheezing. R. 312. He refused to undergo an x-ray of his chest, insisting that he wanted only inhalation treatment. R. 312. It was determined that Fry was suffering from asthmatic bronchitis. R. 312. He was given an Albuterol inhaler to treat his breathing difficulties. R. 312. He continued to suffer from breathing problems throughout the spring of 2005. Between April 16, 2005, and May 7, 2005, Fry was treated at Mercy Jeannette Hospital ("Mercy") for asthma attacks on four separate occasions. R. 330-355. He was treated at Mercy again on November 19, 2006, after experiencing breathing difficulties for a period of three weeks. R. 375-380. A subsequent asthma attack forced Fry to undergo further treatment at Mercy on January 1, 2007.

R. 381-386.

Fry returned to Mercy on June 18, 2007, to undergo a CT scan of his chest. R. 389-390.

On October 22, 2007, Fry went back to Mercy for a dual-energy x-ray absorptiometry ("DXA") scan of his back and left hip. R. 391-392. The DXA scan revealed that he was suffering from osteopenia. R. 391. Fry later sought treatment from Dr. Victor Jabbour. Pursuant to Dr. Jabbour's advice, ...

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