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Kenneth E. Weaver v. Michael Astrue

June 14, 2012


The opinion of the court was delivered by: Judge Caputo

(Complaint Filed 4/18/11)



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

On July 17, 2009, Weaver filed protectively*fn1 an application for disability insurance benefits. Tr. 10, 142, 145-151 and 162.*fn2 The application was initially denied by the Bureau of Disability Determination*fn3 on September 15, 2009. Tr. 10, 70 and 71-75. On November 16, 2009, Weaver requested a hearing before an administrative law judge. Tr. 10 and 78-80. After about 12 months had passed, a hearing was held on November 2, 2010. Tr. 21-68. On November 9, 2010, the administrative law judge issued a decision denying Weaver's application. Tr. 10-17. On January 18, 2011, Weaver filed a request for review with the Appeals Council and on February 18, 2011, the Appeals Council concluded that there was no basis upon which to grant Weaver's request. Tr. 1-6 and 217-219. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

Weaver then filed a complaint in this court on April 18, 2011. Supporting and opposing briefs were submitted and the appeal*fn4 became ripe for disposition on August 29, 2011, when Weaver 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 Weaver meets the insured status requirements of the Social Security Act through December 31, 2013. Tr. 10, 12, 154 and 162.

Weaver, who was born in the United States on January 24, 1957, withdrew from high school in 1974 after completing the 11th grade and can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 45, 142, 145, 191 and 196. During Weaver's elementary and secondary schooling, he attended regular education classes. Tr. 196. Although Weaver did not obtain a General Equivalency Diploma, he completed training in the operation of heavy equipment. Tr. 50 and 196.

Weaver has past relevant employment*fn5 as a painter and drywall installer. Tr. 60. The painter position is classified as skilled, medium work, as customarily performed and skilled, heavy work as actually performed by Weaver, and the drywall installer position is classified as skilled, heavy work as customarily performed and as actually performed by Weaver. *fn6 Id.

Weaver alleges that he became disabled on August 27, 2008, because of cirrhosis of the liver, hepatitis C, grade 1 esophageal varices, gastritis, and a history of blood transfusions. Tr. 24. The record reveals that Weaver had two acute episodes of gastrointestinal bleeding caused by the abuse of alcohol and the consumption of nonsteroidal anti-inflammatory drugs. Tr. 26-33. The acute episodes occurred on July 7, 2009, and July 30, 2010. Id. Between those two episodes, Weaver admitted he had very little medical treatment and was told by his physicians to stop consuming alcohol and nonsteroidal anti-inflammatory drugs. Tr. 52. Weaver admitted that after the first episode, he did not follow that advice.*fn7 Tr. 53.

When asked by the administrative law judge at the hearing on November 2, 2010, why he was unable to work, Weaver responded by stating that he gets "winded easy" and "dizzy if he crawl[s] up a ladder." Tr. 53. Weaver further stated that he is unable to "stay on [his] hunkers [knees] very long" and "sit too long." Id. Weaver also claimed he could not walk or stand for more than couple of hours at a time; and that he suffers from fatigue. Tr.

54. Weaver admitted that he could lift 25 pounds. Tr. 55.

In a document filed with the Social Security Administration in conjunction with Weaver's application for benefits, Weaver indicated he stopped working on August 27, 2008, because he was laid off from his position as a painter and that he had not worked since that date. Tr. 192. Weaver furthermore when interviewed on July 2, 2009, by an employee of the Social Security Administration stated that he last worked on August 27, 2008; he was laid off; and he was receiving $548.00 biweekly in unemployment compensation benefits. Tr. 142.

Records of the Social Security Administration reveal that Weaver had reported earnings in 1970 through 1979, 1981 through 1985, 1987 through 1998, and 2001 through 2008. tr. 155. Weaver's total earnings during those years were $344,963.64. Id. Weaver has no reported earnings after 2008 other than unemployment compensation benefits.*fn8 Tr.

There are no complaints of confusion. He denies abdominal or lower extremity swelling. He has not experienced any further GI bleeding. Unfortunately [Weaver] informs me he continues to drink alcohol." Tr. 344. 153 and 16-161.

After the alleged disability onset date, the record reveals that Weaver lived in a mobile home by himself. Tr. 173. Weaver was able to take care of his daily personal needs, including dressing, bathing, caring for his hair, shaving, and feeding himself. Tr. 174. Weaver took care of a dog by himself. Id. Weaver was able to watch TV and talk on the telephone with no difficulty. Tr. 173. Weaver admitted he needed no special reminders with respect to taking medicines; he was able to prepare meals; perform routine cleaning and do his laundry; he admitted having the ability to mow his lawn using a riding lawn mower; he needs no encouragement to engage in daily activities; he goes outside everyday; he is able to drive a motor vehicle; he shops for food and personal items; he is able to pay bills, count change, handle a saving count, and use a checkbook and money orders; he admitted that he still goes camping and fishing but not as often; and he admitted socializing with friends. Tr. 175-178. When asked to specify the functional abilities which his physical impairments impact, Weaver indicating lifting, walking and stair climbing. Tr. 178. He did not note any problem with squatting, bending, standing, reaching, sitting, kneeling, talking, hearing, seeing, memory, completing tasks, concentration, understanding, following instructions, using hands, or getting along with others. Id.

For the reasons set forth below we will affirm the decision of the Commissioner denying Weaver ...

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