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ELEM v. BARNHART

August 11, 2003

ERNESTINE ELEM, PLAINTIFF,
v.
JO ANNE B. BARNHART COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Arlander Keys, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Ernestine Elem, moves this Court for Summary Judgment, pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, to reverse the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying her claim for a Period of Disability and Disability Insurance Benefits. See 42 U.S.C. § 405 (g) (2003). The Commissioner has filed a Cross-Motion for Summary Judgment. For the reasons set forth below, Plaintiff's Motion is granted, and the case is remanded to the Commissioner for further proceedings.

PROCEDURAL HISTORY

Plaintiff applied for a Period of Disability and Disability Insurance Benefits (collectively "DIB") in September 2000, alleging that she has been unable to work since April 10, 1999, as a result of pain in her left ankle. Plaintiff alleges that she fractured her ankle in April 1999, and re-fractured the same ankle in August 1999. (R. at 42.)*fn1 Plaintiff's application for DIB was denied on November 1, 2000. (R. at 91.) On November 28, 2000, Plaintiff requested reconsideration of the denial of benefits and, on January 22, 2001, the Social Security Administration ("SSA") determined that the denial was proper. (R. at 64-67.).

On February 5, 2001, Plaintiff requested a hearing before an Administrative Law Judge (the "ALJ"). (R. at 68.) A hearing was held on October 23, 2001, before ALJ Edward R. Gustafson. (R. at 16.) In a written decision issued on November 29, 2001, the ALJ denied Plaintiff's application for DIB. (R. at 13.) Plaintiff filed a Request for Review of Hearing Decision/Order on December 5, 2001. (R. at 11.) On August 30, 2002, the Social Security Administration's Appeals Council denied Plaintiff's request for review. (R. at 8.) Accordingly, the ALJ's decision stands as the final decision of the Commissioner, and is now the subject of the motions before the Court. (R. at 8.)*fn2 See 42 U.S.C. § 405 (g).

BACKGROUND FACTS

At the time of the hearing, Plaintiff was a 45 year old woman with a high school equivalency diploma. (R. at 36.) plaintiff was not working at the time of her injury, but had previously worked as a city bus driver and a nurse's aide. (R. at 17, 27.) The evidence before the Court consists of: (1) plaintiff's testimony at the hearing before the ALJ; (2) the Medical Expert's testimony at the hearing before the ALJ; (3) the medical evidence presented to the ALJ, and (4) the ALJ's written opinion.

A. Testimony at Hearing

1. Plaintiff's Testimony

At the hearing, Plaintiff testified that she fell down the stairs at her home and broke her left ankle on April 10, 1999. (R. at 42.) In mid-August 1999, Plaintiff re-fractured her left ankle. (Id.) As a result of these fractures, Plaintiff had surgery on her ankle in January 2001 and, as of October 23, 2001, continued to have pain in her ankle. (R. at 28, 43.) Specifically, Plaintiff testified that her ankle "hurts all the time" and that her ankle occasionally buckles, causing her to trip. (R. at 28.)

The ALJ questioned plaintiff regarding her daily activities, and plaintiff testified that she is able to go to the supermarket, do light housework, attend church, and visit with relatives. (R. at 29, 43-45.) However, Plaintiff also testified that she requires a cane when walking, frequently uses an electronic cart while shopping, and is no longer able to dance. (R. at 30, 46, 49.) When the ALJ inquired about additional details regarding her daily activities, Plaintiff responded that she rarely goes out socially, because she does not have any money, and she sleeps up to 14 hours per day. (R. at 29, 36.) At the time of the hearing, Plaintiff's two children, ages 12 and 14, lived at home. (R. at 27.) The Plaintiff testified that she occasionally takes her children out or goes to their schools. (R. at 30, 43-44.)

Plaintiff then described the pain that she feels in her ankle. Plaintiff explained that she often suffers from a "sharp nagging pain" in her ankle, which occurs even when she is sitting down. Plaintiff's doctor had prescribed Celebrex to relieve the pain, but Plaintiff testified that the medication is not effective at relieving the pain that results from walking on her ankle. Furthermore, Plaintiff testified that nothing helps relieve the pain in her ankle except for lying down. (R. at 42.) Plaintiff testified that sometimes in the early morning or late at night, her ankle will not support her weight and, at these times, she is unable to walk, even with the assistance of a cane. (R. at 46.) Additionally, Plaintiff testified that she is only able to stand for "about five minutes" at a time, and has recurring pain even while seated. (R. at 35.)

In addition to her ankle pain, Plaintiff testified that she has a thyroid condition and high blood pressure, which are regulated with medication. (R. at 36.) Plaintiff testified that the medications that she takes for her thyroid and high blood pressure often cause her to feel nauseous, dizzy, and cause her to vomit. (R. at 36-7.) Plaintiff's high blood pressure also allegedly causes her to be lightheaded and tired. (Id.) Plaintiff testified that she sleeps up to 14 hours every day, although she is unsure of the reason for her fatigue. Furthermore, Plaintiff testified that she has had a skin rash for "approximately" ten years as a result of sun exposure, and that heat causes her to feel nauseous and to vomit. (R. at 38-9.) Finally, Plaintiff testified that, prior to the hearing, she had a biopsy taken of her skin and her doctor told her that she may possibly have Lupus. (R. at 38.) She also testified that her doctor told her that her arthritis, fatigue, tripping, skin rash, and allergy to the sun were all symptoms of Lupus. (Id.)

2. Testimony of Dr. Daniel Girzadas, Medical Expert

Dr. Daniel Girzadas testified as a medical expert ("ME") at the hearing before the ALJ. During the hearing, Dr. Girzadas testified that Plaintiff suffered from secondary arthritis in her ankle, which was substantiated by an MRI report submitted to the ALJ for review. (R. at 31.) Dr. Girzadas testified that based on reasonable medical expectations, and the nature of Plaintiff's injury, he would not reasonably expect Plaintiff to be in constant pain. (R. at 45.) However, Dr. Girzadas also testified that the medical evidence showed that, if Plaintiff's ankle did not heal within 12 months of the surgery*fn3, then the Plaintiff would meet the requirements of Section 1.03 of the listings.*fn4 (R. at 32.) Furthermore, Dr. Girzadas testified that it would be impossible to know, based on Plaintiff's injuries, whether it was reasonable to expect Plaintiff's ankle to fully heal within 12 months from the date of surgery. (Id.) Moreover, Dr. Girzadas opined that plaintiff's symptoms would be minimal while sitting, but would be obviously present when she was standing. (R. at 53.)

Notably, Dr. Girzadas was specifically asked whether Plaintiff's fatigue and consistently high blood pressure were symptoms of a serious illness. (R. at 54.) Dr. Girzadas declined to give a medical opinion, explaining that "I'm not a medical person, I'm an orthopedic surgeon. I have not been asked to review the chart from that point of view. I would think that the possibility of her tiredness would be related more to hypothyroidism and her possible lupus", and that the medications that Plaintiff takes for her high blood pressure and hypothyroidism could cause fatigue. (R. at 54-55.)

B. Medical Evidence

1. Dr. Samuel Chmell and Dr. John McClellan, Orthopedic Surgeon.

Dr. Chmell and Dr. McClellan are both orthopedic surgeons who work at the same location and have treated Plaintiff's ankle condition interchangeably from 1999 to 2001.

Dr. McClellan's medical notes indicate that Plaintiff sought medical attention in April of 1999, after injuring her left ankle at home the day before. (R. at 183.) After examining her ankle and having x-rays taken, Dr. McClellan found that Plaintiff had tenderness, both medially and laterally, and a healing fracture of the distal fibula, with mild posterior angulation of the distal fragment. (R. at 183-84.) Dr. McClellan recommended that Plaintiff be placed in a long leg cast. (R. at 183.) In May of 1999, Dr. McClellan examined Plaintiff again and noted that the x-rays of her ankle showed satisfactory alignment and satisfactory healing of the deltoid fracture. (R. at 181.) Dr. McClellan prescribed a short leg walking cast for Plaintiff. (Id.)

Dr. Chmell performed a follow-up examination of Plaintiff in June of 1999, and found that there was some mild tenderness of the ankle capsule anteriorly. (R. at 178.) The x-rays showed that the fracture was healing, but still visible, and Dr. Chmell noted that Plaintiff had removed her own cast at home. (Id.)

Dr. McClellan examined Plaintiff's ankle again on August 2, 1999, noting that Plaintiff had a supination external rotation type 4 fracture, with a partial tear of the deltoid ligament medially. (R. at 169.) X-rays taken at the time showed a healing fracture of the distal fibula, with mild displacement of the fracture fragments, and revealed that the ankle mortise was mildly widened medially. (R. at 170.) Dr. McClellan ordered a custom molded arch support for Plaintiff. (R. at 169.)

On August 13, 1999, Plaintiff was treated at an after-hours Urgent Care facility after slipping and re-injuring her left ankle. (R. at 168.) X-rays taken of the ankle showed that Plaintiff had an oblique fracture through the distal fibula, and a widening of the medial aspect of the ankle mortise. (R. at 166.) An avulsion fracture fragment, medial to the talus, was also visible. (Id.) Dr. Chmell performed a follow-up examination on August 16, 1999, and found that Plaintiff had swelling and tenderness of the lateral aspect of the left ankle and that she had re-fractured her left distal fibula. (R. at 165.)

Dr. Chmell's examination of Plaintiff's ankle on September 9, 1999 showed no tenderness of the ankle, and "really no swelling." (R. at 160.) Dr. Chmell's report states that "the ankle looks pretty good." (Id.) Dr. Chmell prescribed an air cast for Plaintiff. (Id.) On October 11, 1999, Dr. Chmell noted that Plaintiff's ankle felt stiff and weak, but the ankle was not particularly painful. (R. at 150.) The ankle was not tender, but there was some slight diffuse swelling of the ankle and foot, with some stiffness in the ankle joint. (Id.)

In February 2000, Dr. Chmell performed a follow-up examination of Plaintiff's ankle, and did not find any swelling or tenderness. (R. at 146.) x-rays taken at the time showed some apparent consolidation at the fracture, and the Doctor placed Plaintiff in a rigid cast brace. (R. at 147.) Plaintiff returned to see Dr. McClellan on August 24, 2000, after developing left medial ankle pain. (R. at 143.) Dr. McClellan opined in his report that the deltoid ligament may have healed in a stretch position, and ordered an orthosis. (Id.)

In September of 2000, Dr. McClellan saw Plaintiff again, and noted that Plaintiff was still suffering from residual left ankle pain and that Plaintiff had tenderness over her tendo calcanus, as well as the deltoid ligament medially. (R. at 141.) Dr. McClellan diagnosed Plaintiff as having post traumatic osteoarthritis of the left ankle. (Id.) In October of 2000, Dr. McClellan reviewed x-rays of the ankle, and opined that there was a one millimeter widening of the mortise medially and that the fibula appeared to be healed. (R. at 212.) Dr. McClellan explained that this meant that the deltoid ligament was either re-ruptured or stretched. (Id.)

At the request of Dr. McClellan, Plaintiff had an MRI performed on her ankle on October 17, 2000. (R. at 135.) The MRI showed that Plaintiff's ankle had a large osteochondral lesion within the medial aspect of the talar dome that appeared chronic. (Id.) Although the MRI was inconclusive, a low signal osteochondral fragment may have been present within the medial aspect of the ankle joint. (Id.) The MRI also indicated that there was an osteochondral lesion within the posterior aspect of the tibial plafond, with surrounding marrow edema, and the existence of a healed, displaced fibular fracture. (Id.)

On November 1, 2000, in an effort to alleviate Plaintiff's ankle pain, Dr. McClellan injected Plaintiff's ankle with methylprednisolone and Marcaine. (R. at 136.) On November 29, 2000, Dr, McClellan examined Plaintiff and noted that the injection relieved the pain for only a few days and was not successful long term. (R. at 209.) Dr. McClellan noted that Plaintiff appeared to have developed post traumatic osteoarthritis of the left ankle. (Id.) Dr. McClellan then consulted with a physician from the University of Illinois regarding Plaintiff's ankle. (R. at 208.) The ...


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