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Francis H. Kephart v. Michael Astrue

April 13, 2012


The opinion of the court was delivered by: Judge Caputo

(Complaint Filed 1/26/11)



The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Francis H. Kephart's claim for social security disability insurance benefits.

On October 1, 2007, Kephart filed protectively*fn1 an application for disability insurance benefits. Tr. 11, 88, 112-117, 125 and 127.*fn2 The application was initially denied by the Bureau of Disability Determination*fn3 on July 7, 2008. Tr. 92-102. On July 23, 2008, Kephart requested a hearing before an administrative law judge. Tr. 11 and 104. After about 15 months had passed, a hearing was held on November 5, 2009. Tr. 29-69. On January 28, 2010, the administrative law judge issued a decision denying Kephart's application. Tr. 11-23. On March 17, 2010, Kephart filed a request for review with the Appeals Council and on December 14, 2010, the Appeals Council concluded that there was no basis upon which to grant Kephart's request. Tr. 1-5 and 108-111. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

Kephart then filed a complaint in this court on January 26, 2011. Supporting and opposing briefs were submitted and the appeal*fn4 became ripe for disposition on August 8, 2011, when Kephart elected not to file a reply brief.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured," that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Kephart met the insured status requirements of the Social Security Act through December 31, 2011. Tr. 11, 13 and 149.

Kephart was born in the United States on April 20, 1967. Tr. 112, 125 and 127. Although Kephart withdrew from high school during the 11th grade, he obtained a General Equivalency Diploma in 2000 and can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 152, 160 and 674. The record reveals that Kephart in 1984 completed vocational training in diesel mechanics and in 2001 completed police officer training . Tr. 160. He received his GED while serving in the military. Tr. 674. The record further reveals that Kephart either served in the Army, Army Reserve or National Guard during 1999, 2000, 2002 and 2003 Tr. 113 and 133-136 and 674.*fn5

Kephart stated that he had two honorable discharges and served in Germany after September 11, 2001. Tr. 674.

Records of the Social Security Administration reveal that Kephart had reported earnings in 1984 through 1987 and 1989 through 2007 as follows: in 1984 $110.38, 1985 $5503.92, 1986 $7892.13, 1987 $3663.73, 1989 $688.81, 1990 $3179.75, 1991 $1378.00, 1992 $7559.81, 1993 $9032.14, 1994 $1052.99, 1995 $31.39, 1996 $769.02, 1997 $11,616.50, 1998 $14,339.01, 1999 $9218.80, 2000 $12,289.06, 2001 $4887.70, 2002 $21,772.95, 2003 $23,967.54, 2004 $23,745.29, 2005 $29,479.90, 2006 $20,304.11, and 2007 $5970.06. Tr. 146. Kephart's total earnings during those years were $218,452.99. Id. Kephart has no reported earnings after 2007. Id.

Kephart's past relevant employment*fn6 was as a forklift operator described by a vocational expert as semi-skilled, medium work; as a construction laborer which was described as unskilled, medium to heavy work; as a police officer for a township in Carbon County which was described as semi-skilled, medium work; and as a deputy sheriff for Carbon County which was described as semi-skilled, heavy work. *fn7 Tr. 61-62, 154 and 673- 674.

Kephart claims that while employed by the Carbon County Sheriff's Department he became disabled on August 30, 2006,*fn8 as the result of a neck injury. Tr. 153 and 209. The impetus for the injury was an incident where Kephart in order to avoid being hit by an opening courthouse door quickly jumped backwards and as he did so he felt a "pop" in his neck and began having severe pain in his neck, left scapula and left arm. Tr. 209. An MRI of the cervical spine performed later that day revealed disc herniations. Tr. 210 and 372-373. In October, 2006, Kephart successfully underwent surgery to address the herniations. Tr. 215-216 and 21-224.

Kephart than developed paresthesia*fn9 in the hands, headaches, and pain in the right shoulder blade and thoracic regions of the back. Tr. 311-315 and 330. An MRI of the thoracic spine in April, 2007, revealed a small right paracentral disc protrusion at the T5-T6 level of the thoracic spine and a small leftward protrusion at the T7-T8 level. Tr. 285-286. From May 14, 2007, through June 7, 2007, Kephart had physical therapy. Tr. 233-235. At the end of that course of physical therapy Kephart told Terence F. Duffy, M.D., a treating pain management specialist, that he was doing much better. Tr. 333.

On July 7, 2007, Dr. Duffy assessed Kephart's physical capabilities and concluded that Kephart had the ability to sit, stand, or walk for up to eight hours per day; lift/carry 11-25 pounds occasionally; lift up to 10 pounds without restriction; use his hands for grasping, fine manipulation, and pushing/pulling; use his feet/legs for ...

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