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Arlow v. Colvin

United States District Court, W.D. Pennsylvania

March 28, 2014

ROBERT KEITH ARLOW, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION

DAVID STEWART CERCONE, District Judge.

I. INTRODUCTION

Plaintiff, Robert Keith Arlow ("Plaintiff" or "Arlow") initiated this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the decision of the Commissioner of Social Security, Carolyn W. Colvin (the "Commissioner" or "Colvin") denying his application for disability insurance benefits ("DIB") or supplemental security income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"). See 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff protectively filed an application for DIB and SSI on November 29, 2011, alleging disability since November 6, 2011, due to crushed vertebrae, memory and balance problems, seizures, heart attacks, and a broken leg. R. 110-112, 162, 164. Arlow amended his onset date to December 31, 2010. R. 11. The applications were initially denied on or about February 29, 2012, and Plaintiff timely requested an administrative hearing. R. 110-111, R. 121-122.

A hearing was held on August 1, 2012, before Administrative Law Judge David F. Brash (the "ALJ"), a Vocational Expert ("VE") and Plaintiff, who was represented by counsel, appeared and gave testimony. R. 31-81. The ALJ issued a written decision on August 28, 2012, finding that Plaintiff was not disabled under the Act because he could perform a full range of light work. R. 24-26. Plaintiff timely requested a review of the ALJ's decision to the Appeals Council, which was denied on November 21, 2012, making the ALJ's decision the final decision for judicial review pursuant to 42 U.S.C. § 405. R. 1-3. Plaintiff subsequently filed his appeal with this Court.

Plaintiff filed prior applications for DIB and SSI that were denied at the initial determination level on January 21, 2009. R. 11, R. 181-183. The ALJ found that the determination of January 21, 2009, was entitled to administrative finality, and found no basis to justify reopening those applications. 20 C.F.R. § 404.957(c)(1), 20 C.F.R. §§ 404.989, 416.1489. The ALJ further determined that any discussion of the evidence prior to January 21, 2009, was for historical and contextual purposes only. R. 11.

II. STATEMENT OF THE CASE

Plaintiff was born on February 21, 1959, making him fifty-three (53) years old on the date of the hearing. R. 39. Plaintiff was a high school graduate and had a "small amount of college." Id. Plaintiff had earnings from 2006 through 2010, and had twelve (12) different places of employment over that time period. R. 166-170. Plaintiff has past relevant work as a cashier, service technician, stock person and telemarketer sales person. R. 186. Plaintiff lived alone, received food stamps and medical insurance, and relied on help from a friend for help with his rent. R. 40.

On July 30, 2008, was admitted to the hospital with a diagnosis of spinal stenosis secondary to a compression fracture of L2 of indeterminate age. R. 290, 292-293. Plaintiff indicated that he had fallen four (4) to five (5) days previously and had hit his back on the wall and floor. R. 292. On July 31, 2008, Plaintiff was given an MRI of the lumbar spine which showed an acute "moderate to severe" compression deformity of L2 with posterior buckling of the L2 cortex and moderate encroachment of the thecal sac. R. 307. That same day, Plaintiff was transferred to Allegheny General Hospital. R. 297-298.

On July 8, 2010, Plaintiff injured his right hand and wrist at work and was treated in the emergency room of the Beaver Medical Center. R. 359. X-rays showed no fracture in the wrist or hand, and Plaintiff was diagnosed with a right hand sprain and wrist sprain. R. 360. On July 14, 2010, Plaintiff presented to the Beaver Medical Center emergency room complaining of chest pains. R. 328. Cardiac enzymes were negative for myocardial infarction, and a stress test was normal. R. 329, 333. Plaintiff was admitted, and testing revealed no evidence of cardiac occlusion, normal LV size and systolic function, a left ventricle ejection fraction of 67%, and no scintigraphic evidence of infarction or ischemia. R. 330, 431.

On November 5, 2011, Plaintiff presented in the emergency room after he fell while walking up steps. R. 363. A physical examination found Plaintiff to be "alert, oriented and somewhat intoxicated." X-rays showed a fracture of his fibula. R. 363, 365. Plaintiff returned to the emergency room on November 6, 2011, with what was described as "a witnessed grand mal tonic-clonic seizure." R. 367. A CT scan revealed frontal encephalomalacia, which was present in 2008, and was suspicious for a previous skull fracture. Id. Plaintiff was given an EEG on November 7, 2011, which was normal. R. 366. Plaintiff was discharged on November 8, 2011, after undergoing an open reduction and syndesmotic fixation of the right ankle. R. 382, 391.

On February, 16, 2012, a Disability Evaluation was performed on Plaintiff by Daniel G. Christo, D.O. ("Dr. Christo"). R. 455. After a physical examination of Plaintiff, Dr. Christo made the following evaluation:

1. Seizure disorder, currently stable by documentation with an unremarkable neurological exam;
2. Surgical repair of his right ankle, currently still on the postop and rehab phase with good clinical function of the ankle mortise, with mild dysfunction of the right lower extremities secondary to his ankle;
3. Vague history of "heart attack" with no accompanying data, unremarkable clinical exam and what sounds like he had a possible catheterization, but again no documentation and his history describes no specific intervention; and
4. History of narcotic and alcohol abuse.

R. 458. Dr. Christo completed a medical source statement regarding plaintiff's ability to perform work-related physical activities. R. 460. Dr. Christo found that Plaintiff could lift and carry twenty-five (25) pounds frequently, he could stand and walk for six (6) hours in an eight (8) hour workday, and Plaintiff had no limitations with regard to sitting, pushing and pulling. R. 460. Dr. Christo also found that Plaintiff: could bend, kneel, stoop, crouch, balance and climb occasionally; had no limitation on reaching, handling, fingering, feeling, seeing, hearing or speaking; and had no environmental restrictions. R. 461.

On February 28, 2012, a state agency medical consultant, Paul Fox, M.D. ("Dr. Fox"), performed a physical residual functional capacity ("RFC") assessment based upon a review of Plaintiff's medical and vocational records. R. 89-91. Dr. Fox found that Plaintiff could occasionally lift and carry twenty (20) pounds and could frequently lift and carry ten (10) pounds, but had the following limitations: he could climb ramps/stairs, balance, stoop, and crouch frequently; kneel and crawl occasionally; never climb ladders, ropes or scaffolds; and should avoid all exposure to hazards such as machinery or heights R. 90-91. Dr. Fox noted that Plaintiff's seizures were well controlled on antiepileptic drugs R. 91.

The ALJ found that Plaintiff had the following severe impairments:

Status-post right ankle fracture and surgical repair, status-post burst fractures and lumbar degenerative disc disease (DDD), seizure disorder, status-post TBI (encephalomalacia), major depressive disorder (MDD) with psychotic features, psychotic disorder, generalized ...

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