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Dean W. Weary v. Michael J. Astrue

July 25, 2012


The opinion of the court was delivered by: (Judge Caputo)

(Complaint Filed 6/22/11)



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

On July 15, 2008, Weary filed protectively*fn1 an application for disability insurance benefits. Tr. 11, 26 and 173.*fn2 The application was initially denied by the Bureau of Disability Determination*fn3 on December 18, 2008. Tr. 89-94. On February 10, 2009, Weary requested a hearing before an administrative law judge. Tr. 100. After about 15 months had passed, a hearing was held on May 19, 2010. Tr. 24-68. On July 13, 2010, the administrative law judge issued a decision denying Weary's application. Tr. 11-19. On August 18, 2010, Weary filed a request for review with the Appeals Council and on May 5, 2011, the Appeals Council concluded that there was no basis upon which to grant Weary's request. Tr. 1-7. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

Weary then filed a complaint in this court on June 22, 2011. Supporting and opposing briefs were submitted and the appeal*fn4 became ripe for disposition on October 31, 2011, when Weary 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 Weary met the insured status requirements of the Social Security Act through December 31, 2011. Tr. 11, 13, 26, 162 and 173.

Weary, who was born in the United States on April 17, 1961,*fn5 graduated from high school in 1979 and can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 17, 36-37, 176 and 183. During Weary's elementary and secondary schooling, he attended regular education classes. Tr. 36 and 183. Weary also had vocational training in carpentry. Id.

Weary has past relevant employment*fn6 as an appliance delivery worker, dump truck driver and heavy equipment operator. Tr. 60-61. Those positions were described by a vocational expert as unskilled to skilled, medium to very heavy work. Id. *fn7

Weary alleges that he became disabled on June 14, 2008, the day after an unfavorable decision on a prior application, because of elbow, shoulder, neck, and back disorders, and depression. Tr. 26-27, 177 and 220. In documents filed with the Social Security Administration Weary claimed that he could not work because of widespread pain, including pain in his left shoulder, neck, elbows, right knee and lower back. Tr. 177 and 194. Weary contends that he suffers from depression and anxiety which impairs his memory and ability to concentrate, complete tasks and follow and understand instructions. Tr. 191.

In a document filed with the Social Security Administration in conjunction with Weary's application for benefits, Weary indicated that he stopped working on April 5, 2006, and received retirement disability from the Pennsylvania Department of Transportation because he had "permanent work restrictions and they wouldn't let [him] come back with the restrictions." Tr. 29 and 177. After retiring Weary applied for unemployment compensation benefits asserting that he could perform light duty work. Tr. 29. Weary was awarded unemployment compensation benefits and continued to receive the same up until about six months before the administrative hearing, i.e., December, 2009. Tr. 33-34.

The administrative law judge questioned Weary regarding his application for unemployment compensation benefits and his receiving the same well after his alleged disability onset date of June 14, 2008. Tr. 29-35. That exchange in relevant part was as follows:

Q. And since June 14, 2008, sir, how many did you have in your household at that time. When you said you became disabled, June 2008.

A. My son and my mother live with me. * * * * * * * Q . . . And how many do you have now, sir?

A. Three.

Q. Same three?

A. Yes.

Q How old is your son?

A. 13. * * * * * * *

Q. Does your mother work outside the home?

A. No. She's 83 years old.

Q. What monies are coming in to the household to you, your son, or your mother since June 14, 2008?

A. I was getting unemployment which has stopped now. . . . . And I get a disability from the state. It's for my retirement.

Q. An how long did you receive unemployment, sir? A Oh, until about six months ago. * * * * * * *

A. They said I could go on light duty where I was working. You're eligible for unemployment if you're eligible for light duty. * * * * * * * Q . . . Now to receive unemployment insurance, sir, unemployment is a federal program which is administered by the state government. It has certain requirements. For you to receive those benefits you had to meet those requirements. I'm going to cover a couple of them for you. To get unemployment benefits, sir, especially over that long a period of time, you have to give information to that agency on a regular basis. This is typically done by telephone, by computer, every two weeks. Did you give the information to that agency on a regular basis, sir?

A. Yes, I did.

Q. You're also required to tell them that you're able to work. Did you tell them you were able to work?

A. Yes.

Q. What work did you consider yourself able to do for this ...

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