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PROSTKA v. BARNHART

April 28, 2004.

KEVIN PROSTKA, Plaintiff
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant



The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District

MEMORANDUM OPINION AND ORDER

Claimant Kevin Prostka ("Prostka") seeks judicial review of a final decision of the Commissioner of Social Security ("the Commissioner") denying his application for a period of disability and disability insurance benefits under Title II of the Social Security Act. In cross-motions for summary judgment, Prostka asks the court to reverse the administrative law judge's ("ALJ") denial of benefits and the Commissioner asks the court to affirm that decision, Prostka has alternatively moved to remand for further proceedings. For the reasons set forth below, we deny Prostka's motions and grant the Commissioner's motion.

PROCEDURAL BACKGROUND

  Prostka applied for a period of disability and disability insurance benefits on October 9, 2001, alleging he became disabled on April 6, 2001 due to heart disease, bypass surgery, Legg-Calve-Perthes disease, and total hip replacement surgery. (Administrative Record ("Admin. R.") at 166). The Social Security Administration denied his application initially and upon reconsideration. Prostka then requested a hearing. On December 3, 2002, an ALJ conducted a hearing on Prostka's claim. Prostka was represented by an attorney and both Prostka and a vocational expert testified. The ALJ issued a written decision on January 22, 2003, finding Prostka not disabled within the meaning of the Social Security Act. Prostka filed an appeal to the Social Security Appeals Council which denied his request for review, thereby making the ALJ's determination the final decision of the Commissioner. (Admin. R. at 5). Prostka then filed this complaint requesting judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

  FACTUAL BACKGROUND

  I. Kevin Prostka

  At the time of the administrative hearing, Prostka was 42 years old. He has completed high school. Prostka worked as a machine repairman at Grayhill, Inc. from 1996 until he was laid off in April 2001 as part of a reduction in force. Prostka alleges the onset of his disability dates back to on or about April 6, 2001. Prior to his layoff., Prostka had scheduled surgery for June 2001 to correct a congenital deformity of his left hip and his progressive arthritis. Once he was laid off from his job, Prostka sought to move up his surgery and he was able to reschedule it to April 20, 2001. During his pre-operative testing, medical personnel discovered Prostka had a reversible perfusion defect. His hip surgery was postponed so that he could undergo coronary artery bypass graft surgery (times four). The surgery was performed on April 18, 2001. Prostka's recovery from bypass surgery was complicated by pneumonia and an episode of deep vein thrombosis in the left lower extremity. (Admin. R. at 241, 252, 301). While he was awaiting hip surgery, Prostka did not work. Id. at 369. By September 2001, Prostka's cardiac status was "unremarkable" and he was cleared for surgery on his left hip. He underwent total left hip arthroplasty on September 26, 2001. Id. at 18, 256-9. Subsequently, he participated in rehabilitation therapy. Prostka was discharged from the hospital on crutches on October 2, 2001. In December 2001, Prostka began full-time work as an auto parts delivery person. He worked 40 hours a week at $7.00 per hour. He maintained that job until September 2002, when he began repairing and rebuilding machines. In that job, he earned $13.00 per hour and worked full-time, 40 hours per week. At the time of the administrative hearing, Prostka still held this full-time job.

  II. The ALJ's Decision

  After reviewing the medical evidence, the testimony of Prostka, and the testimony of the Vocational Expert, Lee Knutson ("VE"), the ALJ determined that Prostka was not disabled within the meaning of the Social Security Act. In reaching this conclusion, the ALJ conducted the five-step test as set forth in the regulations of the Social Security Administration. See 20 C.F.R. § 404.1520. First, the ALJ reserved ruling on whether Prostka had worked or engaged in substantial gainful activity since the alleged onset date of his disability in April 2001. The ALJ acknowledged that the job Prostka held at the time of the hearing, which the VE categorized as semi-skilled medium work, could be considered substantial gainful activity. As part of that job, Prostka reported standing or walking 6-7 hours per day, lifting 25-30 pounds, and working 40 hours per week. The ALJ stated that "[i]t would appear that this claimant can be denied on an alternative basis of substantial gainful activity." (Admin. R. at 14). Rather than dispose of his claim at step one, however, the ALJ explained that there were other bases for denying Prostka's claim. He therefore chose to reserve ruling on the issue of substantial gainful activity.

  As for step two, the ALJ found Prostka impaired by reason of coronary artery disease, status post coronary artery bypass surgery, deep vein thrombosis, hypertension, sleep apnea, degenerative disease of the left knee, congenital deformity of the left hip, and depression. Next, under step three, he determined Prostka's impairments did not meet or medically equal the severity of one of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. He also found that Prostka did not suffer from limitations in activities of daily living or in social functioning. The ALJ determined Prostka had a mild limitation in maintaining concentration, persistence and pace. He stated that there was no evidence of decompensation. Given the above determinations, the ALJ then assessed Prostka's residual functional capacity.

  In establishing Prostka's residual functional capacity, the ALJ considered the entire record including Prostka's testimony concerning his symptoms and reported limitations. The ALJ stated he did not consider Prostka's complaints of disabling symptoms and limitations entirely credible. He found that Prostka's medically determinable impairments precluded the following work-related activities: lifting/carrying up to ten pounds more than occasionally or up to five pounds more than frequently; standing or walking for more than two hours in an eight-hour workday; sitting for more than six hours a day; climbing ropes, ladders or scaffolds; climbing stairs, balancing, stooping, kneeling or crouching more than occasionally; squatting or crawling more than rarely; or using leg controls. He also found that Prostka was precluded from work that requires operating a motor vehicle or monitoring a screen. He concluded that Prostka does not possess the capacity to focus on, attend to, or carry out complex or detailed instructions, nor can he maintain extended attention or concentration to perform complex or detailed tasks at a sustained pace. The ALJ determined that Prostka did retain the capacity to carry out simple instructions and could maintain attention and focus as is required to perform simple tasks at a sustained pace. Given the above, under step four, the ALJ determined Prostka could perform a limited range of sedentary work but acknowledged Prostka's limitations would not allow him to perform any past relevant work.

  At the hearing, the VE testified that given the hypothetical individual's specific work restrictions, Prostka could work as an information clerk, inspector/weigher/checker, cashier/order clerk/clerical, or bench assembler. Based on the testimony of the VE, the ALJ found that none of the skills Prostka acquired in his past positions would transfer to jobs within his residual functional capacity. In step five, the ALJ did find, however, that according to the VE, there were a significant number of jobs in the region that Prostka could perform. The ALJ therefore concluded that Prostka was not under a disability as defined by the Social Security Act.

  STANDARD OF REVIEW

  Under the Social Security Act, a reviewing court must sustain the Commissioner's findings if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such `relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Keppel v. Massanari, 268 F.3d 513, 516 (7th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "Substantial evidence may be less than the weight of the evidence and more than a scintilla." Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004) (internal citations omitted). The reviewing court may not substitute its own judgment for that of the Commissioner, reweigh evidence, resolve conflicts, or make credibility determinations. See Clifford v. Apfel, 227 F.3d 863, 869 (7th ...


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