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Weber v. Colvin

United States District Court, W.D. Pennsylvania

April 11, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


TERRENCE F. McVERRY, District Judge.

I. Introduction

Anthony J. Weber ("Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g) and 1383(c) for judicial review of the final determination of the Commissioner of Social Security ("Commissioner"), which denied his application for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1381-1383(f).

II. Background

A. Facts

Treatment Record

Plaintiff was born on July 24, 1964. (R. 23). He has limited education, but is able to communicate in English. (R. 23). He has past relevant work experience as a construction laborer (classified as skilled, light-exertional work) and a roofing construction laborer (classified as skilled, heavy-exertional work). (R. 22).

Plaintiff alleges disability as of January 31, 2008, due to migraine headaches, degenerative disc disease of the cervical and lumbar spines, status post-closed head injury, cognitive disorder, depressive disorder, impulse control disorder, and anti-social personality disorder. (R. 17). The record reflects that Plaintiff has not engaged in substantial gainful work activity since his alleged onset date. (R. 17).

While fighting with another man on train tracks, Plaintiff was pushed in front of an oncoming train in April 2007. (R. 290). As a result of being hit by the train, Plaintiff fractured his left upper arm, collarbone and facial bones. (R. 247). Following two days of treatment and testing, Plaintiff was discharged and told to schedule follow-up orthopedic appointments. (R. 247). However, no evidence exists indicating that Plaintiff complied with any follow-up visits. Plaintiff visited the emergency room one year following his injuries reporting migraine headaches. (R. 275). However, scans revealed nothing abnormal and he was told that Vicodin can cause dizziness and that alcohol consumption contributes to migraines. (R. 279-80). Furthermore, his physical examination was unremarkable and a CT-scan of his brain was normal. (R. 277-78).

In July 2009, Plaintiff visited Nabil Jabbour, M.D. for a physical examination. (R. 384). His physical examination was essentially normal with some lumbar spine tenderness and mild degenerative disc disease. (R. 389). Plaintiff also presented to Louis R. Olegario, M.D. a pain management physician. (R. 378). Plaintiff reported suffering from headaches and having difficulties with walking, climbing stairs, and working. (R. 379-80). He was taking aspirin for pain and displayed full motor strength and a normal gait. (R. 379-380).

Plaintiff underwent a psychological evaluation performed by Danny Detore, Ed.D. on December 10, 2009. (R. 335). Plaintiff told Dr. Detore that he participated in normal daily activities and his concentration and memory were adequate. (R. 337). He was not taking medications, had not gone through drug or alcohol treatment, and served three years in prison for alcohol abuse and DUIs. (R. 336-37).

Plaintiff presented to the emergency room after an assault in September 2010. (R. 474). He was diagnosed with comminuted left mandibular coronary process, and comminuted bilateral nasal bone fractures with fragmentation of the nasal septum. (R. 20). Although he reported being kicked in the face and displayed lacerations around his left eye, he was treated and found to be functioning within normal limits upon discharge. (R. 429, 431, 435, 479, 500, 635-36, 668). He also admitted to drinking between four and twelve beers on the day of admission, and was quite aggressive and belligerent during treatment. (R. 20). Furthermore, a follow-up appointment with Dr. Jabbour led to a finding that Plaintiff was not taking his prescribed medications. (R. 382).

In December 2010, Ray M. Milke, Ph.D. a psychological expert conferring with the state agency, determined that Plaintiff was able to meet basic demands of competitive work after reviewing Plaintiff's record.

In March 2011, Selim El-Attrache, M.D., an orthopedist, wrote a letter indicating that Plaintiff was not employable since 2008 as a result of orthopedic trauma, mental health, and an inability to read and write. (R. 365). Dr. El-Attrache found that Weber was permanently disabled from his traumas and prescribed Vicodin and Motrin. (R. 695-96). Although Dr. El-Attrache reported that Plaintiff had a left upper limb weakness and positive straight leg raise, motion of the spine and joints of the upper and lower limbs was adequate. (R. 695-96). X-rays of Plaintiff's lumbar and cervical spine demonstrated some degenerative changes, but no acute fractures or dislocations. (R. 695-96). Dr. El-Attrache advised that Weber was to contact a pain management center for further medication and would not prescribe additional medication himself. (R. 695-96).

Plaintiff presented to the ER in March 2011 with another arm injury from a reported fall and had a strong alcohol odor, but neurological functioning was intact. (R. 436-437). He experienced only "mild" chronic anxiety and exhibited no abnormal movements, was casually dressed, had no delusions, loosening of associations, racing thoughts, or thought blocking, and had no suicidal or homicidal ideation. (R. 21). On July 15, 2011, Plaintiff was taken to the ER in critical condition after an altercation with the police. (R. 972, 1003). He had a closed head injury and bone fractures as a result of a fall down a staircase due to police tazing. (R. 972). His blood alcohol level was.307 and he presented a positive urine test for cocaine. (R. 705).

Dr. Jabbour noted, after this incident, that Plaintiff was in general good health and taking no medications. (R. 1066-1067). He had no weakness or limitation in any extremity, only mild tenderness in his lumbar area with no limitation in movement, and his range of motion and gait were normal. (R. 1068-69). He had complained of headaches for four years which got worse after his trauma in July 2011, neck pain, shortness of breath, nocturnal hypoxia and back pain. (R. 1067). Dr. Jabbour diagnosed these conditions and also noted a history of depression and mood disorder. (R. 1067).

Plaintiff has admitted to a long history of alcohol dependence, frequently followed by assaults and arrests. (R. 247, 268, 287, 291, 294, 296, 300, 308, 441, 442, 474, 691, 705, 709, 1003). The attending psychiatrist repeatedly referred Plaintiff to AA, various shelters, and SPHS, but he refused to follow-up. (R. 273, 295, 311). Following his police altercation in July 2011, he underwent intensive rehabilitation at Harmarville. (R. 708). Upon discharge he displayed normal manner, mood, impulse control, and judgment. (R. 777). He exhibited attention within normal limits and presented only a slight memory impairment, and his emotional functioning was appropriate. (R. 777, 780). Dr. Jabbour concluded that Plaintiff was able to interact with the examiner without difficulty. (R. 1065).

Hearing Testimony

Plaintiff's attorney stated that Plaintiff has had back problems, headaches, dizziness, and rarely leaves the house since his train accident in 2007. (R. 42). Plaintiff testified that he began seeing Dr. El-Attrache for his back problem a couple of months before the hearing and started treatment with Donald Breneman, M.D. for prescription medications for depression, Xanax and another medication he couldn't recall. (R. 48). In response to an inquiry by the ALJ concerning his drug and alcohol useage, Plaintiff stated that he has not had any ...

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