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Matthew E. Westcott v. Michael J. Astrue

December 23, 2010


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



Pending before the court is an appeal from the final decision of the Commissioner of Social Security (ACommissioner@ or Adefendant@) denying the claim of Matthew Westcott (Aplaintiff@ or AWestcott@) for disability benefits (ADIB@) under Title II of the Social Security Act (ASSA@), 42 U.S.C. " 401-34, and supplemental security income (ASSI@) benefits under Title XVI of SSA, 42 U.S.C. " 1381-83f. Westcott contends that the decision of the administrative law judge (the AALJ@) that he is not disabled, and therefore not entitled to benefits, should be reversed or at least remanded for reconsideration because his impairments preclude him from being able to work on a full-time regular basis. The Commissioner asserts that the ALJ=s decision is supported by substantial evidence. The parties filed cross-motions for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Because the decision of the ALJ is supported by substantial evidence, the court will grant defendant=s motion for summary judgment and deny plaintiff=s motion for summary judgment.

Procedural History

Westcott proactively filed the DIB application at issue in this appeal on October 9, 2007, asserting a disability since June 15, 2002 due to major depressive disorder,*fn1 generalized anxiety disorder*fn2 and acute rhabdomyolysis.*fn3 (R. at 122, 146). Plaintiff filed an application for SSI benefits on November 2, 2007. (R. at 124-26). On May 21, 2008, plaintiff=s claims were initially denied. (R. at 81-90). A timely written request for a hearing before the ALJ was filed by plaintiff, and the hearing was held on December 3, 2008. (R. at 67-80). At the hearing, plaintiff appeared with counsel and testified before the ALJ. (R. at 8-54). A vocational expert (the AVE@) also testified. (R. at 43-54).

In a decision dated May 7, 2009, the ALJ determined that plaintiff was not under a disability within the meaning of the SSA. (R. at 67-80). The ALJ determined that when considering all plaintiff=s impairments, including his substance abuse disorder and the limitations they create, there were no jobs available in the national economy plaintiff could perform. (R. at 74). The ALJ determined that absent plaintiff=s substance abuse, considering plaintiff's residual functional capacity (ARFC@), age, education, and work experience, there would be a significant number of jobs that plaintiff could perform. (R. at 75-79). Therefore, the ALJ found plaintiff=s substance abuse disorder to be a contributing factor material to the determination of his disability. (R. at 79). Since a substance abuse disorder was a contributing factor material to the determination of disability, the ALJ concluded that plaintiff was not Adisabled@ under the SSA for either DIB or SSI. (R. at 68, 79). Plaintiff filed a request to review the ALJ=s decision, which was denied by the Appeals Council on November 21, 2009. (R. at 1-4). On January 19, 2010, plaintiff timely filed this present action seeking judicial review. (ECF No. 1).

Plaintiff= s Background, Medical Evidence and Testimony


At the time of the hearing before the ALJ, Westcott was forty-nine years old. (R. at 17). Plaintiff completed high school and obtained an accounting degree from Slippery Rock University. (R. at 17). Plaintiff was single and lived by himself in a duplex he owned. (R. at 28). Plaintiff was financially supported by his mother and rental money from the other half of his duplex. (R. at 35). He sold aluminum cans as scrap for spending money. (R. at 35). Plaintiff reported he last worked in 2005 or 2006 as a truck driver when he was laid off*fn4 . (R. at 35, 44-45). Prior to his alleged onset date, plaintiff had worked as an accountant for approximately ten years and as a prep-cook. (R. at 17, 44, 147, 164, 404).

Medical History

Plaintiff has a long history of drinking alcohol to excess and using marijuana. (R. at 201-21, 571, 577, 582-83, 589). He has a history of mental health issues, primarily depression. (R. at 410, 413, 414). Although plaintiff=s alleged disability onset date is June 15, 2002, there are no medical records of treatment until May 2004, when plaintiff was seen by Dr. Paul Sung, M.D., his primary care physician (APCP@). (R. at 438). In June 2004, Dr. Sung diagnosed plaintiff with anemia*fn5 and alcohol abuse. (R. at 439). There are no further treatment records until plaintiff=s hospitalization on September 23, 2007. (R. at 182-91).

Plaintiff= s Hospitalization for Fall

On September 23, 2007, plaintiff=s mother, Mary Lou Westcott, found plaintiff passed out in his apartment. (R. at 182-91). Ms. Westcott notified the police and plaintiff was taken to Jameson Memorial Hospital. (R. at 182, 583). Excessive alcohol use was suspected to have contributed to his fall, which resulted in a closed-head injury. (R. at 182, 186-87, 203-04, 300). During hospitalization, plaintiff was found to be confused and he was unable to provide appropriate answers to questions regarding his family or personal health history. (R. at 186, 195, 196, 201, 203). MRI and CT scans of plaintiff=s brain documented some abnormalities. (R. at 186, 188). Plaintiff was treated for acute rhabdomyolysis. (R. at 182-85, 189-90, 203-05).

On October 1, 2007, plaintiff was transferred to a rehabilitation program for treatment of his traumatic brain injury. (R. at 205, 300, 302-03). At his initial consultation, it was noted that plaintiff had deficits in many cognitive areas including Aspeech and language, spacial relationships, insight problem solving, registration and memory.@ (R. at 300). During eleven days of rehabilitation, plaintiff received occupational and physical therapy for alcoholic-related encephalopathy and probable Marchiafava-Bignami disease*fn6 . (R. at 304-05, 333-61, 370-85). On October 12, 2007, at plaintiff=s discharge, his cognitive status was significantly improved from his initial consultation. (R. at 300). Plaintiff refused any drug and alcohol assessment intervention and was discharged as Amedically stable.@ (R. at 300-01).

Plaintiff= s Suicide Attempt

On February 14, 2008, plaintiff attempted to shoot himself in the head and commit suicide. (R. at 387-88, 449, 451). The bullet missed plaintiff=s head, grazing his forehead and the right side of his scalp. (R. at 387). Following the attempt, plaintiff was again admitted to Jameson Memorial Hospital=s emergency room. (Id.). Plaintiff=s blood alcohol content upon admission was 218.3. (R. at 391, 464). He admitted to being intoxicated and drinking three or four beers a night, three or four days a week. (R. at 391-92). Plaintiff stated that on the day of his suicide attempt, he had also had a few Aother alcoholic beverages.@ (Id.).

Two days later, on February 16, 2008, plaintiff was moved to the hospital=s psychiatric ward. (R. at 388). Plaintiff claimed he was extremely depressed and wanted to kill himself. (R. at 388, 391). Plaintiff was prescribed Prozac for his depression and Trazodone*fn7 . (R. at 410, 459, 466). While hospitalized, plaintiff complied with treatment and no longer exhibited suicidal tendencies. (R. at 465-66). Plaintiff was discharged from the hospital on February 21, 2008. (R. at 466). When discharged, plaintiff was referred to a six-week partial hospitalization program.

(R. at 459-60).

Dr. Kirk M. Lunnen

On March 17, 2008, Kirk M. Lunnen, Ph.D., performed a consultative psychological evaluation of plaintiff. (R. at 403-09). Dr. Lunnen noted that plaintiff displayed poor hygiene and grooming and appeared moderately dysthymic*fn8 and somewhat anxious/nervous. (R. at 404-05). Plaintiff reported he felt hopeless and helpless in life, but that he was happy his suicide attempt was a failure. (R. at 403). Plaintiff=s overall behavior and psychomotor activity were normal. (Id.). His thought processes were logical linear, and goal directed. (R. at 405).

Plaintiff claimed his concentration was poor, but Dr. Lunnen=s testing revealed average concentration. (Id.). Dr. Lunnen noted that in terms of concentration, persistence, or pace, Atesting during the present evaluation did not indicate any present problems in these areas.@ (R. at 406). Plaintiff=s social judgment and insight were intact. (Id.). Dr. Lunnen noted that plaintiff had slight limitations in his ability to perform work-related mental activities and Amoderate@ limitations in understanding, remembering, and carrying out detailed instructions. (R. at 408-09). Overall, plaintiff Apresented with fairly intact cognitive functioning.@ (R. at 406).

Dr. Lunnen diagnosed plaintiff with depressive and anxiety disorders, as well as alcohol dependence. (R. at 405-06). Dr. Lunnen noted that the Amajority of the claimant=s difficulties appear to be a function of his substantial history of substances abuse.@ (R. at 406). He concluded that assuming a period of sobriety, plaintiff could experience some improvement over time. (Id.).

Dr. R. Liedke

On March 18, 2008, plaintiff was seen by one of the Bureau of Disability Determination=s consultative examiners, R. Liedke, M.D. (R. at 410-18). At the time of Dr. Liedke=s examination, plaintiff had been receiving drug and alcohol rehabilitation for three weeks and reported being clean for eight weeks. (R. at 410-11).

Plaintiff was continuing to take Prozac and Trazodone. (R. at 410). Plaintiff=s chief complaint was depression. (R. at 410). Plaintiff reported poor sleep habits and a slight change in his memory. (R. at 411). He spent most of his time watching television or playing games on the internet. (R. at 412). Dr. Liedke noted that plaintiff had little social interaction outside internet contacts. (Id.). Physically, plaintiff appeared disheveled and had at best fair hygiene. (Id.).

Dr. Liedke noted that plaintiff was quiet and reserved, but appeared to be Aa very bright man.@ (R. at 413). Plaintiff=s speech was Avery direct and surprisingly articulate.@ (Id.). Plaintiff was observed to have answered all questions completely and did not appear anxious or panicky.

(R. at 413). Dr. Liedke concluded that plaintiff=s Aoverall personality type appeared to be quiet and reserved and this apparently has been his situation all his life.@ (Id.). He also noted that in the past plaintiff had used alcohol to self-medicate. R. at 414). Plaintiff reported to Dr. Liedke that he never had a problem with illegal drugs. (R. at 412).

Plaintiff reported to Dr. Liedke that his Aultimate goal is to get himself feeling better and get the depression under control and then get back into some sort of gainful employment.@ (R. at 414). Dr. Liedke diagnosed plaintiff ...

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