The opinion of the court was delivered by: Michael M. Mihm United States District Judge
This matter is now before the Court on Plaintiff's Motion for Summary Judgment and the Defendant's Motion for Summary Affirmance. For the reasons set forth below, Plaintiff's Motion for Summary Judgment [#10] is DENIED, and the Defendant's Motion to Affirm [#11] is GRANTED.
Plaintiff Gary Christiansen seeks judicial review of the final decision of Defendant Michael J. Astrue, the Commissioner of Social Security ("Commissioner") that he was not disabled within the meaning of the Social Security Act ("Act"). As Christiansen has exhausted his administrative remedies, the Court has jurisdiction over this action pursuant to 42 U.S.C. § 405(g).
On August 26, 2005, Christiansen filed for disability insurance benefits ("DIB") and supplemental security income ("SSI"), alleging an onset date of disability of February 2, 2003. (Tr. 82, 85).*fn1 His insured status for DIB expired on March 31, 2003. (Tr. 89). The Agency denied his claim initially and on reconsideration. (Tr. 23-27A). Christiansen requested a hearing, and on January 12, 2007, he appeared with counsel before an administrative law judge ("ALJ"). (Tr. 52-53; 359-63). Both Christiansen and George Paprocki, a vocational expert ("VE"), testified at this hearing. (Tr. 326-358). At this hearing, Christiansen amended his disability onset to April 1, 2005, thereby waiving his DIB claim.
Following the hearing, the ALJ concluded that Christiansen was not disabled within the meaning of the Act. (Tr. 13-22). Christiansen requested review of the ALJ's decision by the Appeals Council. (Tr. 9). The Appeals Council denied review of the ALJ's decision on March 10, 2008, making the ALJ's decision the final decision of the Commissioner. (Tr. 5-7). This appeal followed.
In his appeal, Christiansen argues that the ALJ erred in two respects: (1) that the ALJ's finding on the severity of his impairments was tainted by error and is not supported by substantial evidence; and (2) the ALJ erred by failing to develop the record of treating source opinion evidence. The Court will address each argument after it summarizes the factual background of this action. Education/ work history
Christiansen was 47 years old on the date of the hearing before the ALJ. (Tr. 330). He has a high school education and attended one year of college. (Tr. 112, 333). Christiansen has worked as a fork lift driver, painter, roofer, janitor, furnace installer, machinist, and laborer. (Tr. 118-22, 136, 349-350).
In his 2005 disability application, Christiansen alleged he had "Probs w/ rt arm/ ankle- hepatitis- angina- depressed/ anxiety." (Tr. 135). The Court will only summarize and address the medical conditions that Christiansen discusses in his appeal, namely his injuries to his right wrist and right ankle and his depression and anxiety.
On February 7, 2003, Christiansen fractured his right distal radius (wrist), when he slipped and fell. (Tr. 210). Peter D. Pardubsky, M.D. set the bone without surgery (closed reduction) and placed it into a cast. (Tr. 210). At an exam eight months later, Dr. Pardubsky noted that there was non-union of the distal radius that resulted in loss of reduction, dorsal inclination, and marked shortening. (Tr. 203). Dr. Pardubsky stated that Christiansen has some mild discomfort but it had dramatically improved since the previous exam. (Tr. 203).
On April 7, 2005, Christiansen returned to Dr. Pardubsky. (Tr. 202). At that visit, he told his doctor that he had been doing heavy work as a roofer and noticed right wrist pain. (Tr. 202). Dr. Pardubsky noted that Christiansen's wrist continued to suffer from the distal fracture non-union and noted that surgery was an option. (Tr. 202). Dr. Pardubsky prescribed a one-time subscription for Tylenol #3 for his pain. (Tr. 202).
In January 2007, Dr. Pardubsky completed a physical functional capacity questionnaire at the request of Christiansen's attorney. (Tr. 316-21). Dr. Pardubsky noted that he had recommended Christiansen undergo surgery for his wrist but that Christiansen had failed to schedule this elective procedure. (Tr. 316). Dr. Pardubsky stated that he had seen Christiansen on eight occasions, during the period from February 2003, to April 2005, for his right wrist fracture malunion and pain. (Tr. 317). Dr. Pardubsky opined in his letter to Christiansen's attorney that that any use of Christiansen's right wrist caused severe, incapacitating pain and that if he had surgery, there was a risk that he could suffer from posttraumatic arthritis of the wrist. (Tr. 316).
In this questionnaire, Dr. Pardubsky noted that Christiansen was able to tolerate moderate stress and sit or stand for more than two hours at a time. (Tr. 318). In addition, Dr. Pardubsky indicated that Christiansen was able to sit, stand, and walk for at least six hours, did not need to shift positions between sitting, standing, and walking throughout the day, and would not need to take unscheduled breaks. (Tr. 319). Dr. Pardubsky stated that Christiansen was able to lift up to 20 pounds rarely, ten pounds occasionally, and less than 10 pounds frequently. (Tr. 319). Dr. Pardubsky found that Christiansen had no restrictions of overhead reaching or use of his left hand, and some limitation of grasping and fine manipulation with his right hand and fingers. (Tr. 320). After making these observations, Dr. Pardubsky concluded that Christiansen was unable to do any job in the competitive workforce because he would be expected to miss more than four days of work per month. (Tr. 320). Dr. Pardubsky did not disclose the rationale for his conclusion or explain why he believed Christiansen would miss so much work.
On June 24, 2003, Stanley Rabinowitz, M.S., an examining physician, discussed Christiansen's fractured wrist and noted that it had not healed properly and needed orthopedic surgery for internal fixation and corrective osteotomy of the malunion. (Tr. 189). According to Dr. Rabinowitz, Christiansen had difficulty moving the right wrist and standing or walking for long periods, and difficulty kneeling or squatting, but that he was able to perform the usual activities of daily living. (Tr. 189). Dr. Rabinowitz noted that Christiansen walked with a mild right antalgic gait without the help of any assistive device; he had reduced right wrist flexion, but otherwise normal ranges of joint and spine motion; and that his grip strength and finger dexterity were normal in both hands. (Tr. 190-91). Dr. Rabinowitz further noted that Christiansen's neurological functioning, including motor strength, reflexes, and sensory responses, was normal in his arms and legs; that he was fully oriented in all spheres, had intact memory, appropriate appearance, no behavioral difficulties, and a normal ability to relate during the examination. (Tr. 191). In addition, Dr. Rabinowitz noted that Christiansen had fractured his right ankle when he was a teenager, which was treated with casting. (Tr. 189).
In December 2005, Roopa K. Karri, M.D., an examining physician, examined Christiansen, reviewed his medical records, and evaluated his condition for the purpose of his disability claim. (Tr. 241-44). Dr. Karri found that Christiansen had a normal gait without use of any assistive devices, and had normal or nearly normal grip strength in his hands. (Tr. 243). Dr. Karri opined that Christiansen had normal motor strength in his arms and legs, normal deep tendon reflexes, and normal sensory responses. (Tr. 243). Dr. Karri noted that ...