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Shan O. Beard v. Michael J. Astrue

February 14, 2012


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



Shan O. Beard ("Plaintiff" or "Beard") brought this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33, 1381-83f ("Act"). This matter comes before the court on cross-motions for summary judgment. (ECF Nos. 8, 10). The record was developed at the administrative level. For the following reasons, Plaintiff's Motion for Summary Judgment is GRANTED, in part, and DENIED, in part, and Defendant's Motion for Summary Judgment is DENIED.


Plaintiff filed for DIB and SSI with the Social Security Administration on August 24, 2007, claiming an inability to work due to disability as of August 1, 2006. (R. at 15, 57-59).*fn1 Plaintiff was initially denied benefits on January 25, 2008. (R. at 15, 30-33, 334-38). A hearing was scheduled for June 24, 2009, but was adjourned and rescheduled for August 19, 2009 in order for Plaintiff to appear and testify represented by counsel. (R. at 15, 341-82). A vocational expert testified at the second hearing. (R. at 15-36). The Administrative Law Judge ("ALJ") issued his decision denying benefits to Plaintiff on September 1, 2009. (R. at 12-26). Plaintiff filed a request for review of the ALJ's decision by the Appeals Council. The Appeals Council denied his request on September 24, 2010, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 6-9).

Plaintiff filed his Complaint in this court on November 9, 2010. (ECF No. 2). Defendant filed his Answer on February 24, 2011. (ECF No. 6). Cross-motions for summary judgment followed. (ECF Nos. 8, 10).


A.General Background

Beard was born on September 14, 1980, and was twenty -eight years old at the time of his administrative hearing. (R. at 57, 349). Plaintiff completed the tenth grade, but did not graduate from high school or obtain a GED. (R. at 356). Plaintiff lived independently in a rented mobile home with his wife and son. (R. at 94-110). Plaintiff had a daughter who did not reside with him. (R. at 298). His wife collected social security disability benefits because of a seizure disorder. (R. at 360, 369). The revenue from Plaintiff's tattoo parlor, and food stamps, were additional sources of income for the family. (R. at 369). Plaintiff also received medical benefits through the state. (Id.)

Plaintiff initially alleged that his ability to maintain a full-time job was severely limited by the effects of panic disorder, anxiety, migraines, brain damage, and gastrointestinal conditions. (R. at 73). Plaintiff's past relevant work included employment as a janitor with a commercial cleaning company, a metal fabricator with a powder coating company, and up to and including the time of his administrative hearing, a tattoo artist in his own tattoo parlor. (R. at 74). Plaintiff, however, did not engage in substantial gainful activity since 2006.

An average day for Plaintiff included waking in the morning and showering, watching television with his son and wife, and spending the rest of the day at his tattoo business. (R. at 94). Plaintiff helped his wife care for their son, helped with household chores, and performed the yardwork. (R. at 95-96). Plaintiff was capable of driving, and independently did so. (R. at

97). Aside from going to work, Plaintiff was not motivated to go out because of a desire to avoid contact with groups of people. (Id.). Plaintiff's wife handled their personal finances. (Id.).

B.Treatment History

Plaintiff was treated in the emergency department of Latrobe Area Hospital in Latrobe, Pennsylvania on June 19, 2005, for complaints of abdominal pain, diarrhea, and vomiting. (R. at 116-26). At that time, he was noted to have upper gastrointestinal bleeding. (R. at 126). Upon examination, he was physically unremarkable. (R. at 118). An endoscopy was performed, and mild gastritis was noted, but there was no physical explanation for the symptoms about which he complained. (R. at 120-21). Plaintiff was stabilized, was provided with a prescription for medicine to manage his discomfort, and was advised to undergo a colonoscopy. (R. at 121). He was discharged the following day. (R. at 116-17).

Plaintiff was again treated at Latrobe Area Hospital beginning on September 26, 2005.

(R. at 127-47, 209-20). He continued to complain about abdominal pain and vomiting, but also noticed dark stools. (R. at 127-28, 130, 132, 140-41, 209-10, 212-13). Medical records indicated that a prior endoscopy found only mild gastritis. (R. at 128, 133, 140). Hospital staff felt that Plaintiff's complaints were out of proportion to objective physical findings. (R. at 128). Diagnostic testing and physical examination were unremarkable. (R. at 133, 137). A colonoscopy was not able to be completed because Plaintiff did not tolerate preparation. (R. at 140). Plaintiff frequently requested Dilaudid for pain while at the hospital. (R. at 128). Plaintiff, however, was not provided with narcotic medication because there were no clinical findings indicating a need for that kind of medication. (R. at 128). He had a routine discharge on September 29, 2005, following improvement in his claimed abdominal pain. (R. at 127-29). Plaintiff was diagnosed with abdominal pain, gastritis, and anxiety/stress syndrome. (R. at 127-28, 214-15).

Plaintiff was treated at Latrobe Area Hospital's emergency department on four occasions between November 2005 and September 2007 for complaints of abdominal pain. (R. at 155-63, 175-87, 188-200, 275-83). Plaintiff was typically diagnosed with gastritis and abdominal pain, and some bleeding was noted. (R. at 161, 181, 198, 279-80). Diagnostic testing, however, was typically unremarkable, and the cause of Plaintiff's alleged pain was not pinpointed. (Id.). Plaintiff was released from the hospital in stable condition, was provided with prescription medication to treat his gastritis, and was advised to follow up with his primary care physician and to see a stomach specialist. (Id.).

Plaintiff was seen at the Latrobe Area Hospital emergency department on November 16, 2006, due to a panic attack. (R. at 148-54). He was discharged that same day, and was provided with prescription medication for anxiety. (R. at 154). Plaintiff was advised to see his primary care physician and to seek counseling. (Id.).

Plaintiff began treatment with Carlos J. Marrero, M.D., for migraines on August 6, 2008.

(R. at 288-93). At that time, Plaintiff was not taking any medication for his headaches. (R. at 292). The headaches were originally noted to be worse at bedtime, although improved by morning. (Id.). Bright lights and loud noises exacerbated Plaintiff's pain, and nausea and blurred vision accompanied the headaches at least three times per week. (Id.). An initial physical examination was unremarkable. (Id.). An x-ray, MRI, and blood work were recommended. (R. at 293). Plaintiff was to begin taking prescription medication for migraine treatment. (Id.).

Plaintiff was seen in the emergency department of Latrobe Area Hospital on August 10, 2008, following the breakout of an itchy rash on his left arm and around his eyes. (R. at 287). It was attributed to an allergic reaction to new prescription medication for migraines. (Id.). At a follow-up appointment with Dr. Marrero, Plaintiff's medications were changed. (R. at 290).

Over the course of treatment with Dr. Marrero, Plaintiff's medications were adjusted to treat more effectively his migraine pain. (R. at 288-90). Plaintiff's migraines eventually ceased following his December 29, 2008, checkup with Dr. Marrero. (R. at 288-90). Plaintiff continued to experience pain and visual difficulties as a result of the rash, which was later determined to have been a shingles. (R. at 290-93). The cessation of migraine headaches continued through June 2009 -- the last appointment with Dr. Marrero on record. (R. at 288). On August 18, 2009,

Plaintiff was seen on an emergency basis at the Latrobe Area Hospital for migraine ...

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