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BEDNAR v. APFEL

March 30, 2000

GALE BEDNAR, PLAINTIFF,
V.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Denlow, United States Magistrate Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Gale Bednar ("Bednar" or "Claimant") brings this action pursuant to 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security ("Commissioner") denying Bednar's claim for disability insurance benefits under the Social Security Act ("Act"). The Administrative Law Judge ("ALJ") found that Bednar was not disabled as defined in the Act. The Appeals Council denied Bednar's request for review.

This matter comes before the Court on cross-motions for summary judgment. The issue to be decided is whether substantial evidence in the record supports the ALJ's finding that Bednar is not disabled under the Act. For the reasons set forth below, the Court denies Bednar's motion for summary judgment, grants the Commissioner's motion for summary judgment, and affirms the ALJ's decision.

I. FACTUAL BACKGROUND

Gale Bednar, a 38 year old woman, first applied for disability insurance benefits on August 16, 1996, alleging a disability since February 23, 1996. This application was denied on December 13, 1996, and Bednar filed for reconsideration. The application was denied upon reconsideration on March 10, 1997. (R. 99). Bednar then requested a hearing with an ALJ. A hearing before ALJ Robert T. Karmgard was held on March 31, 1998, during which the Claimant and Meyer Klein, a vocational expert, testified. (R. 22-87). The ALJ rendered a decision against the Claimant on May 7, 1998. (R. 9). Bednar's request for review of the ALJ's decision was denied by the Appeals Council on June 4, 1999, making the ALJ's decision the final decision of the Commissioner. (R. 5).

A. Testimony

1. Gale Bednar's Testimony

Bednar appeared with counsel and testified at a hearing before the ALJ on March 31, 1998. (R. 22-87). Bednar was 36 years old at the time of the hearing. (R. 28). Bednar has a high school education and a year and a half of college. (R. 29). Bednar alleges disability due to injuries suffered as a result of two incidents which occurred while working as a police officer for the City of Evanston. The first incident was an auto accident that occurred on March 7, 1993. As a result of this accident, Bednar suffered a broken jaw and injuries to her back and both of her knees. (R. 32). As a result of the broken jaw, Bednar now wears a device in her mouth which is intended to stabilize the jaw joint. (R. 32). After this accident Bednar was assigned to less than full patrol duties until the summer of 1993, at which time she resumed full patrol duties. (R. 35-36).

The second incident occurred on October 15, 1995, when she responded to a call about a women lying in the street. (R. 31). When Bednar arrived at the scene a fight was in progress and Bednar intervened. During the fight, Bednar was kicked and clubbed, resulting in injuries to her pelvis, left knee, and shoulder. (R. 31-32). She wears a brace on her left knee due to the injury. (R. 37).

Bednar returned to light patrol duties in November, 1995, and continued in that capacity until February 23, 1996. (R. 38). On February 23, 1996, Bednar discontinued her police duties because the Evanston Police Department determined that she could no longer perform even light patrol duties. (R. 37). Bednar was pregnant at this time. (R. 37). Bednar gave birth to her daughter on October 13, 1996. (R. 14).

Bednar claims to suffer pain in her neck, ears, jaw, back, and legs. (R. 49). She uses a TENS unit to relieve pain in her jaw, back, and sciatic nerves on both sides of her buttocks. (R. 49). She claims the pain in her jaw, back and sciatic nerves is constant with flair ups. (R. 49-50). She also complains of shoulder and cervical pain. (R. 50). Bednar also complains of severe pain in her groin area. (R. 51). Finally, Bednar claims to have difficulty differentiating between when she will pass gas and when she will pass a stool. (R. 53).

As a result, Bednar claims: she cannot fully extend her arms without a lot of pain (R. 51); she cannot wear anything that will touch her vagina or her lower pelvic area (R. 51); she becomes very tired and has to lay down frequently (R. 52); her sleep is interrupted every three hours by pain (R. 52-53); she has to take a Jacuzzi or a hot shower to soothe the pain (R. 53); her husband had to install a special toilet to accommodate her (R. 53); she has to roll out of bed because her back gets so stiff from laying in bed that she cannot sit up (R. 53-54); her husband has to help her get dressed (R. 54); she can only do very limited housework, such as pushing a dust mop over the hardwood floors, doing the dishes in spurts, and retrieving the mail (R. 56); she cannot make lunch for her daughter because it is too tiring (R. 56); she cannot carry groceries (R. 60); she can drive a car only if there is an emergency or her daughter has to go to the doctor (R. 62); she can only stand up for a half an hour at a time and for a total of two hours a day (R. 62); she cannot walk very far because of her sciatic pain (R. 62); and finally, the heaviest thing she can lift is a half gallon of milk unless it is her daughter, who weighs 24 pounds (R. 62).

2. Meyer Klein's Testimony

Meyer Klein, a vocational expert ("VE"), testified at the hearing. The VE classified Bednar's past work as a police officer as medium, semi-skilled. (R. 71). He classified Bednar's past work experiences as a home health care manager and as a car salesperson as light, semi-skilled. (R. 71). Her past work as an airline baggage manger was classified as heavy, semi-skilled. (R. 71). Her former work as a law firm receptionist was classified as sedentary, semi-skilled. (R. 71). Finally, Bednar's past work as a phlebotomist was classified as light. (R. 76).

The VE determined that such an individual would not be able to perform any of the work that Bednar previously had performed. However, the VE opined that such an individual could perform light and sedentary work as a cashier (with 5,500 jobs in the region), as an office clerk (12,500), as an assembler (5,200), and as a Phlebotomist (1,500).

C. Medical Evidence

1. Dr. Neil Allen, Treating Physician

Dr. Neil Allen, Bednar's treating physician, saw Bednar on August 23, 1994. Dr. Allen's notes reflect that Bednar suffered from neck pain and that her mouth would open only 19mm. (R. 182). Dr. Allen's impression at this time was TMJ Dysfunction, which caused Bednar to suffer headaches. (R. 182). Dr. Allen saw Bednar on December 20, 1994. At this meeting, Bednar complained of pain in her back, neck, and jaw. Dr. Allen injected some of Bednar's muscles with pain relieving steroids and referred her to physical therapy for her jaw and shoulder. (R. 181)

Dr. Allen saw Bednar again on October 19, 1995, four days after the on-duty fight. Dr. Allen noted Bednar had a knee immobilizer on her left knee. Dr. Allen's notes reflect Bednar had tenderness in her knee, pubic trauma, and small vaginal bleeding. X-rays of the pubic bone and the left knee were negative. Dr. Allen referred Bednar to Dr. Isaacs for the vaginal bleeding. (R. 180).

On March 1, 1996, Dr. Allen saw Bednar again. At this time, Dr. Allen injected six multiple trigger points in Bednar's neck and back. He noticed left knee pain on motion but the knee was not unstable. Dr. Allen noted Bednar's mouth opened 5.2cm and that she experienced a spasm in her left lower jaw. (R. 181).

Dr. Allen once again saw Bednar on April 11, 1996. He noted Bednar was able to open her mouth three-quarters of an inch with spasm in the right jaw and left temporal region. At this time, Bednar had pain in the back and both shoulders. Bednar's straight leg raising was sixty-degrees with mild back spasm. She had consistent ...


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