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Malcom v. Colvin

United States District Court, Third Circuit

September 25, 2013

ALBERT W. MALCOM, Plaintiff,
CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.

Jennifer R. Morrell, Esquire and Thomas J. Reed, Esquire of Veterans Law Clinic, Widener University School of Law, Wilmington, Delaware. Counsel for Plaintiff.

Charles M. Oberly III, Esquire, United States Attorney, District of Delaware, and Heather Benderson, Assistant United States Attorney, District of Delaware, Counsel for Defendant. Of Counsel: Eric P. Kressman, Esquire, Regional Chief Counsel, and Donald K. Neely, Regional Counsel of the Office of General Counsel, Philadelphia, Pennsylvania. Counsel for Defendant.


SUE L. ROBINSON, District Judge.


Albert W. Malcom ("plaintiff) appeals from a decision of Carolyn W. Colvin, the Commissioner of Social Security ("defendant"), [1] denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. (D.I. 1) Plaintiff has filed a motion for summary judgment asking the court to award DIB or remand for further proceedings. (D.I. 9, 10) Defendant has filed a cross-motion for summary judgment, requesting the court to affirm her decision and enter judgment in her favor. (D.I. 12, 13) The court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).[2]


A. Procedural History

On November 5, 1999, plaintiff applied for DIB alleging disability as of October 22, 1998, the date that a physician at the Veteran's Administration ("VA") diagnosed single vessel coronary artery disease.[3] (D.I. 6 at 107) After the application was denied, both initially and upon reconsideration, plaintiff requested a hearing before an administrative law judge ("ALJ"). (D.I. 7 at 699)

At the first hearing held on November 9, 2001, the ALJ requested that plaintiff submit to an intelligence test and psychological examination. On February 25, 2002, after review of the record and testing, the ALJ concluded that plaintiff was mildly retarded, but affirmed the denial of disability benefits because plaintiff "had the residual functional capacity to perform simple, routine, repetitive tasks at all exertional levels." ( Id. at 700) On April 12, 2002, plaintiff filed a request for a review by the Appeals Council. On August 6, 2004, the Appeals Council remanded the case to the ALJ, after concluding that the ALJ had failed to weigh the state agency's medical opinion and did not resolve the inconsistencies between plaintiff's mental retardation and his past ability to perform semi-skilled work. ( Id. at 707)

The ALJ held another hearing on January 31, 2005 to consider plaintiff's claims of disability based on hearing loss, heart condition, shoulder and knee pain and mental disability. The ALJ reviewed the evidence associated with plaintiff's physical problems and found that each did not qualify as disabling. ( Id. at 707) With respect to mental disability, the ALJ found no documentation of mental retardation in plaintiff's educational history. The ALJ concluded such a finding was inconsistent with plaintiff's successful completion of helicopter maintenance training received during service in the United States Army. The ALJ also determined that plaintiff had overstated his functional impairment. On September 23, 2005, the Appeals Council denied plaintiff's request for review of the ALJ's decision.

Plaintiff initiated an action in this court. Malcom v. Barnhart, Civ. No. 05-797-KAJ (D. Del. 2005). On September 15, 2006, The Honorable Kent A. Jordan vacated and remanded the case, finding that the ALJ had not adequately considered or explained the affect of the VA's decision finding him eligible for disability benefits. (D.I. 7 at 697-712) In so doing, the court observed,

[t]hat is not to say, of course, that another agency's decision is determinative. On the contrary, the United States Court of Appeals for the Third Circuit has noted that the determinations of other government or non-government agencies are not binding on social security benefits decisions....
* * *
Although the VA's determination in plaintiff's case was not that he was totally or permanently disabled, that agency did find him eligible for disability benefits. It is not clear that the VA's decision was considered by the ALJ in this case and therefore the case will be remanded.

( Id. at 710-12 (citation omitted)).

In October 2007, the ALJ held another hearing on plaintiff's claims. ( Id. at 786) Because the Social Security Administration was unable to transcribe the record of the proceeding, a new hearing was held on March 10, 2011, with plaintiff testifying and represented by counsel.[4] ( Id. at 813-16)

On June 1, 2011, the ALJ denied benefits, finding that plaintiff was capable of performing his past relevant work as a security guard and as a cleaner. ( Id. at 684-687) Plaintiff appealed the decision to the Appeals Council, which denied plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. ( Id. at 6-8) Having exhausted his administrative remedies, plaintiff filed a civil action in this court on May 5, 2012, seeking review of defendant's decision to deny him DIB. (D.I. 1)

B. Plaintiff's Non-Medical History[5]

Plaintiff was born on January 10, 1948. Plaintiff attended school until eighth grade, when he dropped out to start working. (D.I. 6 at 130; D.I. 7 at 540, 573-74, 598-99) Plaintiff was enrolled in regular classes, was able to read and write, and maintained a C average. (D.I. 6 at 130; D.I. 7 at 540) After dropping out of school, plaintiff trained as a handyman with a construction company, learning carpentry, plumbing and electrical skills. (D.I. 7 at 599-600) At age 18 or 19, plaintiff was drafted into the Army in 1967. (D.I. 7 at 701)

C. Plaintiff's Military Service

Plaintiff served in the Army from July 6, 1967 to June 2, 1969. (D.I. 6 at 278) A pre-induction physical examination noted no defects aside from prescription eyeglasses. ( Id. at 298-301) He was disqualified from flight duty due to poor eyesight. ( Id. at 304-06) Plaintiff attended helicopter mechanic school at Ft. Rucker, Alabama and was transferred to the 190th Assault Helicopter Company stationed in Bien Hoah, Vietnam. ( Id. at 326, 130)

Plaintiff told the ALJ that he was trained in aircraft maintenance until he was sent to Vietnam, where he worked in and drove cars in a motor pool. (D.I. 7 at 601-602) VA records reflect that plaintiff worked as a mechanic while stationed in Vietnam. (D.I. 6 at 233, 262)

In February 1969, plaintiff was injured while repairing a damaged building. (D.I. 6 at 398-99) Another serviceman, standing on a roof, dropped a hammer, striking the right side of plaintiff's head and mouth. Plaintiff was knocked unconscious. He was treated at the scene and returned to work. As a result, he sustained damage to his teeth.

D. Plaintiff's Civilian Employment History

After discharge from the Army, plaintiff worked at Chrysler as a spray painter in the finishing department from 1969 to 1975. (D.I. 7 at 602) From 1975 to 1979, plaintiff was a security guard at a college campus. (D.I. 6 at 133, 136) From 1985 to 1989, plaintiff worked as a tow truck driver for A-1 Auto Salvage.[6] (D.I. 6 at 71, 112-117) From 1989 to 1991, plaintiff ...

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