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Gage v. Astrue

August 17, 2009

MICHAEL BYRON GAGE, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER

Pursuant to 42 U.S.C. § 405(g), plaintiff Michael Byron Gage seeks judicial review of a decision denying his application for Disability Insurance Benefits ("DIB"). The parties have filed cross-motions for summary judgment. Mr. Gage seeks a judgment reversing the final decision or remanding it to a new Administrative Law Judge ("ALJ") for review. Defendant Michael J. Astrue, the Commissioner of Social Security ("Commissioner"), seeks a judgment affirming the final decision. For the reasons set forth below, Mr. Gage's motion is denied [dkt 18] and the Commissioner's motion is granted [dkt 19].

PROCEDURAL HISTORY

On November 17, 2004, Mr. Gage filed an application for DIB, claiming that he became disabled due to a left elbow injury.*fn1 On May 9, 2005, the Social Security Administration ("SSA") denied his application.*fn2 On May 19, 2005, upon reconsideration, the SSA denied his application again.*fn3 Mr. Gage requested a hearing before an ALJ on the proceedings of his case.*fn4 On February 28, 2008, ALJ Barbara Welsch conducted a hearing on Mr. Gage's claim and took testimony from several witnesses.*fn5 On April 24, 2008, the ALJ issued an unfavorable decision.*fn6 The ALJ held that Mr. Gage was not disabled at any time from December 7, 1999, through the date last insured, December 31, 2004.*fn7 Mr. Gage requested a review of the ALJ's decision and on July 22, 2008, the Appeals Council denied Mr. Gage's request for review.*fn8 This denial made the ALJ's decision the final decision of the Commissioner.*fn9 Mr. Gage now seeks review of the ALJ's decision.

STATEMENT OF FACTS

The facts set forth under this section provide a review of Mr. Gage's background, the events leading to his application for DIB, his medical history, testimony at his ALJ hearing, and the ALJ's decision.

A. Background Information

Mr. Gage was born on June 13, 1956.*fn10 He has an eighth grade education and can both read and write.*fn11 Mr. Gage worked as a union laborer from November of 1980 until December of 1999.*fn12 As a laborer he performed various tasks including pouring concrete, assisting brick layers, laying blacktop, cleaning up hazardous materials, and flagging traffic.*fn13 At times he served as foreman at his work, supervising ten to fifteen people.*fn14 He has not been employed since December 7, 1999, when he injured his left arm while working.*fn15

B. The Accident And The Medical Record Before The DIB Application

On December 7, 1999, Mr. Gage heard a popping noise from his non-dominant left arm while lifting roughly fifty pounds of concrete forms at work.*fn16 He visited the emergency room where he was diagnosed with a left elbow strain.*fn17 He was prescribed conservative treatment including ice, rest, elevation, and physical therapy.*fn18 Mr. Gage continued to experience pain, swelling, and gripping problems through the winter and spring of 2000.*fn19

In August of 2000, Mr. Gage consulted Pietro Tonio, M.D., an Assistant Professor at the Department of Orthopaedic Surgery and Rehabilitation at Loyola University Medical Center in Maywood, Illinois.*fn20 Dr. Tonio diagnosed Mr. Gage with lateral epicondylitis.*fn21 Lateral epicondylitis is the inflamation of the outer, lower end of the humerus.*fn22 He stated that Mr. Gage had full range of motion in the left elbow, tenderness over the lateral epicondyle, and pain on elevation, arm extension, and maximum pronation.*fn23 At this point, Mr. Gage was capable of full right handed work and was capable of lifting ten pounds with his left hand, though he avoided repetitive and overhead use of his left upper extremity.*fn24 Dr. Tonio recommended lateral epicondylitis surgery.*fn25

On October 9, 2000, Paul Perona, M.D., conducted surgery on Mr. Gage at St. Margaret's Hospital in Spring Valley, Illinois, for left elbow extensor origin debridement.*fn26 This surgery involved removing all dead tissue and contaminating material from certain muscles in the left elbow.*fn27 Rehabilitation services followed the surgery.*fn28 In November of 2000, upon postoperative examination, Dr. Perona noted that Mr. Gage's range of motion was improving in the left elbow but that he still lacked strength and felt pressure there.*fn29 Dr. Perona stated that he would allow Mr. Gage to return to light duty work involving the right hand only and predicted that Mr. Gage could return to unrestricted work within one month of the November 2000 visit.*fn30

In May of 2001, Michael Cohen, M.D., a doctor at the Joliet Medical Group in Joliet, Illinois, examined Mr. Gage.*fn31 Dr. Cohen noted that Mr. Gage had full range of motion of his left elbow but that it was tender in several places, including over the lateral epicondylar region.*fn32 Dr. Cohen administered a cortisone injection, a hormone frequently used to treat arthritis, and recommended a night splint for Mr. Gage's left arm.*fn33 Dr. Cohen placed a ten pound weight restriction on Mr. Gage's left arm.*fn34

On May 17, 2001, Dr. Perona saw Mr. Gage again.*fn35 Dr. Perona noted that Dr. Cohen's cortisone injection did not improve Mr. Gage's symptoms and that Mr. Gage continued to have pain and tenderness in the left elbow.*fn36 Dr. Perona diagnosed Mr. Gage with left elbow lateral epicondylitis and left elbow cubital tunnel syndrome.*fn37 Cubital tunnel syndrome, marked by pain and numbness in the forearm and hand, is a condition resulting from a compression or an injury of the ulnar nerve in the elbow.*fn38 Dr. Perona administered another cortisone injection and recommended physical therapy.*fn39 On June 12, 2001, and July 10, 2001, Dr. Perona conducted follow-up examinations on Mr. Gage.*fn40 After little improvement and continued pain in the left elbow, Dr. Perona suggested re-debridement of the left lateral epicondyle.*fn41 On August 20, 2001, Mr. Gage underwent a second debridement surgery, followed by physical therapy.*fn42

From August of 2001 to January of 2002, after Mr. Gage's second surgery, Dr. Perona conducted frequent postoperative examinations on Mr. Gage.*fn43 He noted that Mr. Gage experienced continued pain in the left arm and occasional numbness in the fingers.*fn44 Dr. Perona also noted during these months that Mr. Gage was not working because no light work was available.*fn45 On January 10, 2002, after a postoperative examination, Dr. Perona stated that Mr. Gage would have a permanent disability due to left hand grasp limitations and lifting restrictions.*fn46 Dr. Perona recommended that Mr. Gage start vocational training.*fn47 In May of 2002, Dr. Perona stated that Mr. Gage's condition would require intermittent if not constant use of anti-inflammatory medication.*fn48 The doctor also recommenced a Functional Capacity Test ("FCT").*fn49

In June of 2002, Barb Peterson, P.T., of the Center for Industrial Rehab in Peru, Illinois, conducted a FCT on Mr. Gage.*fn50 The FCT results stated that Mr. Gage had no apparent limitations in sitting, standing, or walking.*fn51 The results stated that Mr. Gage could frequently (2.5 to 5.5 hours per day) climb stairs, crouch, kneel, and balance while he could occasionally (zero to 2.5 hours per day) crawl.*fn52 Mr. Gage could occasionally grasp items firmly with his left hand and frequently grasp items simply with his left hand.*fn53 Mr. Gage could occasionally lift 19.6 pounds above his left shoulder and could occasionally carry up to thirty-two pounds with his left arm.*fn54

There is little evidence in the record of Mr. Gage's contact with medical professionals in 2003. In January of 2004, Dr. Perona completed a Proof of Disability Form for the Central Laborers' Pension Fund.*fn55 Dr. Perona stated that Mr. Gage had injured his left elbow resulting in an occupational disability from December 7, 1999, through January 15, 2004.*fn56 Dr. Perona stated that Mr. Gage was released to work with a five pound weight restriction on the left arm.*fn57 On March 19, 2004, Dr. Perona conducted a final examination and prognosis on Mr. Gage.*fn58 Dr. Perona diagnosed Mr. Gage with left elbow lateral epicondylitis and left upper extremity cubital tunnel syndrome.*fn59

Dr. Perona considered the lateral epicondylitis to be a permanent condition while noting that the cubital tunnel syndrome might improve with surgery.*fn60 Dr. Perona did not recommend further surgery immediately.*fn61 He recommended a permanent restriction of five pounds to the upper left extremity.*fn62 Dr. Perona strongly recommended that Mr. Gage look for non-labor intensive work requiring no heavy or repeated lifting.*fn63

C. The Medical Record After The DIB Application

In January of 2005, Aftab Khan, M.D., S.C., of the Illinois Department of Rehabilitation Services conducted a physical examination of Mr. Gage at the request of the Bureau of Disability Services for Springfield, Illinois.*fn64 Dr. Khan rated Mr. Gage's grip strength in his left hand at "4/5," where a rating of 5/5 represents the most functional grip.*fn65 Dr. Khan noted that Mr. Gage was unable to lift even five pounds with his left hand because of pain in the left elbow.*fn66 Dr. Khan went on to note that Mr. Gage could turn a doorknob, tie and untie his shoes, and button and unbutton his shirt.*fn67 Dr. Khan reported that, with the exception of left elbow pain, the patient was stable and the examination unremarkable.*fn68 In February of 2005, Stanley Burris, a medical consultant, conducted a Physical Residual Functional Capacity Assessment on Mr. Gage.*fn69 In this assessment, Mr. Burris stated that Mr. Gage had pain in his left elbow, reducing his range of motion and grip strength.*fn70 Mr.

Burris also stated that Mr. Gage was limited to lifting twenty pounds occasionally and ten pounds frequently with the left arm.*fn71

In March of 2005, Mr. Gage sought an evaluation of his right knee due to pain that had begun one month earlier.*fn72 Mr. Gage described this pain as severe and stated that he had given up basic activities because of it.*fn73 Rafia Saleem, M.D., of the Department of Radiology at the Community Hospital of Ottawa, conducted a radiological examination on Mr. Gage.*fn74 This examination revealed mild degenerative changes in the knee and patellofemoral joint.*fn75 The patellofemoral joint is the area where the knee cap and thigh bone join.*fn76 Dr. Saleem's impression was that Mr. Gage was suffering from mild osteoarthritis, which is a form of joint disease characterized by overgrowth of bone and degeneration of cartilage associated with joints.*fn77 In May of 2005, Dr. Perona also examined Mr. Gage for right knee problems.*fn78 Dr. Perona's impression was that Mr. Gage might have a femoral condyle osteochondral defect.*fn79 This refers to a bone and cartilage defect of the rounded eminence at the end of the thigh bone which enters into the formation of a joint with another bone.*fn80

In May of 2006, Michael Harney, D.O., who has seen Mr. Gage many times since the accident, but it is not clear from the record for what treatment, ...


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