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Webb v. Colvin

United States District Court, W.D. Pennsylvania

May 20, 2015

FRANKIE L. WEBB, JR., Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION

TERRENCE F. McVERRY, Senior District Judge.

I. Introduction

Frankie L. Webb, Jr., ("Plaintiff") brought this action for judicial review of the decision of the Acting Commissioner of Social Security, which denied his application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. ยงยง 401-403. Pending before the Court are the parties' cross-motions for summary judgment (ECF Nos. 7, 9). The motions have been fully briefed and are ripe for disposition (ECF Nos. 8, 10).

II. Background

A. Facts

Plaintiff was born on February 4, 1969, making him a "younger person" under the regulations as of his alleged onset date.[1] (R. 47). He graduated from high school and thereafter joined the United States Army. (R. 47-48). He served on active duty in Kuwait and Iraq in 2003 and eventually retired from the Army in September 2009 for medical reasons. (R. 48-51). Specifically, he was missing "on average one to maybe two days a week" because he was "getting sick" and his "sugar readings from the diabetes were really high." (R. 50-51). He also had trouble gripping things with his hands, which, during the hearing, he attributed to "arthritis." (R. 50-52). He has not worked since 2009 and receives disability benefits from the Department of Veterans Affairs ("VA"). (R. 48).

In his initial application for benefits, Plaintiff alleged disability as of August 31, 2009, due to fibromyalgia, hypertension, sleep apnea, diabetes, nonalcoholic steatohepatitis (fatty liver disease), a torn left Achilles, tendonitis in his right Achilles, bilateral hearing loss, tinnitus, and gastroesophageal reflux disease ("GERD"). (R. 94, 154-55, 172). After his claim was denied at the administrative level, Plaintiff filed a supplemental disability report in which he claimed to be suffering from post-traumatic stress disorder ("PTSD"). (R. 194).

1. Veterans Affairs Medical Center Records

Plaintiff has treated at the VA Medical Center ("VAMC") in Erie, Pennsylvania, since his retirement. On July 31, 2009, Lawrence Galla, M.D., conducted compensation and pension examination ("C&P exam") in connection with Plaintiff's VA disability claim. (R. 318). Dr. Galla reviewed Plaintiff's "myriad of claims" and confirmed that he had previously been diagnosed with fatty liver, GERD (well controlled on Nexium), sleep apnea (treated with a continuous positive airway pressure ("CPAP") machine), diabetes mellitus, residual right leg burn with erythema, hyperlipidemia, and kidney stones. (R. 322-25). On August 20, 2009, Plaintiff underwent another C&P exam, this time with Michael Orinick, M.D. (R. 327). Plaintiff complained of a variety of musculoskeletal ailments and pain, along with trouble sleeping, stiffness, paresthesia, and irritable bowel syndrome. (R. 331). Although a physical examination was unremarkable, Plaintiff had "at least 16 and possibly 18 tender points consistent with a diagnosis of fibromyalgia...." (R. 332). According to Dr. Orinick, Plaintiff's problems were "difficult to diagnose due to the diffuse nature of the pain with palpation and diffuse range of motion problems, without overt objective findings suggestive of any specific pathology in any of these areas." (R. 334). Still, he explained that "most if not all of [Plaintiff's] complaints are due to fibromyalgia." (R. 334).

Plaintiff visited the Erie Vet Center on September 28, 2011, to undergo Vocational Rehabilitation orientation and fill out paperwork. (R. 441). Afterward, Jane Drumm, a licensed clinical social worker, called Plaintiff to tell him about the counseling services offered by the Vet Center. (R. 441). In response to questioning from Ms. Drumm, Plaintiff described his readjustment to civilian life as good, and he declined Ms. Drumm's offer of counseling. (R. 441). After the conversation, Ms. Drumm noted that Plaintiff "sounded positive" and hoped to attend school and find a job in the civilian workforce. (R. 441).

In March 2012, Mary Ann Kozlowski, M.D., of the VAMC performed another C&P exam and also completed a VA Disability Benefits Questionnaire, in which she assessed each of Plaintiff's alleged impairments, including his fibromyalgia. (R. 227-307). In terms of symptoms, Plaintiff reported experiencing stiffness, muscle weakness, fatigue, sleep disturbances, paresthesia, headaches, and irritable bowel syndrome. (R. 273, 275). He also described having dreams of a military nature and experiencing numbness in his hands, forearms, elbows, and legs. (R. 273). As for treatment, Plaintiff took five ibuprofens a day, which he said helped to alleviate his pain. (R. 273). In the Disability Benefits Questionnaire, Dr. Kozlowski checked a box indicating that Plaintiff's fibromyalgia impacted his ability to work. (R. 275). As she explained, Plaintiff told her that "[h]e can sit at the computer for 20-30 minutes before he has to get up and walk about for several miutes [sic] and if they do not loosen up he has to go and lay down." (R. 275). Thus, she continued, "[t]his would preclude gainful employment in a physical or a sedentary job." (R. 275).

In October 2012, Plaintiff saw Andrew King, M.D., his primary care physician at the VAMC, and reported that his condition was about the same as it had been. (R. 369). He did, however, describe suffering from recurrent neck and upper back soreness, but noted that the soreness usually worked itself out over the course of the day. (R. 369). He also reported experiencing some arthralgia (joint pain), myalgia (muscle pain), and constipation, but denied experiencing any additional symptoms, including fatigue, memory loss, paresthesia, weakness, depression, anxiety, and thoughts of hurting himself and others. (R. 371). Dr. King confirmed diagnoses of hypertension, diabetes mellitus, osteoarthritis, hyperlipidemia, GERD, elevated liver enzymes, and sleep apnea, but he made no mention of fibromyalgia. (R. 371). According to Dr. King, Plaintiff's diabetes was poorly controlled, his blood pressure was slightly elevated, his lipids were high, his GERD was stable, his degenerative joint disease was stable with only occasional reported aches, and his weight was down slightly. (R. 371-72). Because of Plaintiff's high blood sugars and elevated blood pressure and lipids, Dr. King "discussed at length" the need for exercise, weight loss, and lifestyle changes. (R. 369). He also administered depression and PTSD screenings, both of which were negative. (R. 375-76).

Plaintiff followed up with Dr. King on April 18, 2013, with reports that he had recently strained a rib while playing basketball with his son. (R. 354). In addition to the rib pain, Plaintiff said that he had not been checking his blood-sugar levels, and, although his weight was down slightly, he had been non-compliant with his diet. (R. 354). At the same time, his sleep apnea was reportedly "OK w/CPAP, " and he denied any new cardiac, pulmonary, gastrointestinal, skin, or neurological symptoms. (R. 354). He also denied fatigue, memory loss, paresthesia, weakness, depression, anxiety, and thoughts of hurting himself and others. (R. 357). Dr. King determined that Plaintiff's diabetes was even more uncontrolled than it had been during their last visit, and urged Plaintiff to comply with his diet and make the lifestyle changes that had previously been discussed. (R. 357). Meanwhile, Dr. King found that Plaintiff's hypertension, GERD, "DJD/fibromyalgia, " and elevated liver enzymes were stable. (R. 357). Finally, Plaintiff tested negative for depression and PTSD, as he had done during his last visit. (R. 359).

Dr. King next saw Plaintiff on October 22, 2013, when he noted that Plaintiff was "generally doing well[.]" (R. 417). Plaintiff reported feeling some fatigue after eating lunch, which were apparently attributed to his diabetes, and a few arthralgias, but he denied experiencing any other symptoms, including memory loss, paresthesia, weakness, depression, anxiety, and thoughts of hurting himself or others. (R. 418-19). Depression and PTSD screenings were once again negative. (R. 422-23). Moreover, just like in April 2013, Dr. King did not record any notes regarding Plaintiff's fibromyalgia. According to Dr. King, Plaintiff's hypertension, GERD, and sleep apnea were stable, but his sugar levels remained elevated. (R. 421). As a result, Dr. King recommended starting Plaintiff on insulin, which he began taking the next month. (R. 421, 490, 492, 493). Dr. King also continued to urge Plaintiff to diet and exercise. (R. 421).

On December 13, 2013, Plaintiff contacted Dr. King's office through the VA's web-based secured messaging system to request a prescription for fibromyalgia. (R. 487). Dr. King prescribed Plaintiff cyclobenzaprine, a muscle relaxant. (R. 487). That same date, Plaintiff requested a referral to be evaluated for PTSD, explaining that he was waking up with "bad dreams/night sweats" and that fellow veterans had told him to seek help. (R. 486). Dr. King obliged. (R. 486). Plaintiff testified that, before he reached out to Dr. King, he "sort of kept" his symptoms of PTSD "away from the VA" because he "wasn't proud of having it." (R. 66).

A few days later, Plaintiff underwent a Gulf War Registry physical exam at the VAMC. (R. 480). He complained of chronic fatigue with night sweats, muscle and joint pain, sleep disturbances, gastrointestinal problems, heartburn, constipation, anxiety, mood swings, paresthesia, and insomnia. (R. 484). But he denied, among other things, memory loss, difficulty concentrating, depression, and combat-related nightmares and flashbacks. (R. 484). Upon examination, Plaintiff had no joint tenderness, ...


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