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Burke v. Astrue

August 21, 2009

ROGER BURKE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: P. Michael Mahoney Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. Introduction

Roger Burke seeks judicial review of the Social Security Administration Commissioner's decision to deny his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the magistrate judge pursuant to the consent of both parties, filed on September 9, 2008. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed an application for DIB and supplemental security income ("SSI") on October 29, 1981. (Tr. 27.) The ALJ issued an unfavorable decision on December 15, 1982, and Claimant did not seek reconsideration. (Tr. 27, 97.) Claimant filed three subsequent DIB applications, which where denied in 1999, 2000, and 2002. (Tr. 28, 32, 180.) The Social Security Administration ("SSA") denied his claim on May 11, 2001. (Tr. 28, 32.)

Claimant filed the application for DIB in this case on February 15, 2004 alleging an onset date of July 1, 1999. (Tr. 18.) The SSA denied Claimant's application initially on March 9, 2005, and upon reconsideration on June 16, 2005. (Tr. 18.) Claimant hired an attorney to handle the appeal, and filed a timely written request for a hearing on September 1, 2005. (Tr. 18.)

At the hearing on August 15, 2006, Claimant was represented by counsel, appeared, and testified. (Tr. 18.) During the hearing, Claimant and his attorney amended the alleged onset date to May 6, 2002. (Tr. 18.) Thomas F. Dunleavy, a vocational expert, testified at the hearing. (Tr. 18.) The Administrative Law Judge ("ALJ") issued a written decision denying Claimant's application on September 11, 2006, finding that Claimant was not precluded from performing his past relevant work given his residual functional capacity ("RFC"). (Tr. 18--23.) The ALJ also found that Claimant's job skills were transferable to other jobs that would accommodate his RFC, and that jobs existed in significant numbers in the national economy that Claimant could perform. (Tr. 22.) Because the Appeals Council denied Claimant's Request for Review regarding the ALJ's decision, the decision constitutes the final decision of the Commissioner. (Tr. 11.)

III. Background

Claimant was born on May 6, 1947, making him 57 years old when his insured status expired on September 30, 2004, and 59 years old at his hearing on August 15, 2006. (Tr. 104, 111, 302.) At the time of the hearing, Claimant was single and living alone in a 128 year-old house. (Tr. 304--5, 319.) He graduated from high school and completed three years of college. (Tr. 305.)

Claimant's impairments are primarily residual injuries from an automobile accident in 1965. (Tr. 310, 320.) He was struck by a drunk driver, resulting in significant pelvis and leg fractures, which caused his left leg to be shorter than his right. (Tr. 232.) The accident also resulted in a severe skull fracture and a chronic heel ulcer. (Tr. 232.)

Claimant worked as an automotive services technician from 1992--1999, where he repaired exhausts and installed tires and batteries. (Tr 307.) After 1999, he volunteered at an animal shelter in exchange for food until about six months prior to the hearing. (Tr. 309, 317.) He also helps care for an elderly woman who partially supports him. (Tr. 316--17.)

On August 15, 2006, Claimant testified in front of an ALJ at the administrative hearing about his injuries. (Tr. 300--25.) He testified that he lifted 30--50 pounds when he worked full-time as an automotive technician, and 20--40 pounds when he worked part time as a retail clerk. (Tr. 307--08.) He stated that he wore a silicone pad on his heel and spent a limited amount of time on his feet to prevent his ulcerated heel from opening up. (Tr. 310.) He compared the pain from bumping his heel to an electric shock, and testified that he could only walk a block and stand for an hour without aggravating his pressure-sensitive heel ulcer. (Tr. 311) He wears a shoe lift to compensate for his short leg, and has trouble going up or down stairs without falling. (Tr. 311--12.) Claimant stated that his ankle gives out frequently, which causes him to fall, and that doctors have recommended that he use a cane, crutches, and a wheelchair. (Tr. 313.) He testified that he could sit for an hour without discomfort, and could only lift 10--15 pounds without pain or weakness. (Tr. 312.) He also testified that his right hand went numb and right little finger curled up during activity. (Tr. 313.) Claimant testified that his heel pain made it difficult to sleep, and that his pelvic region and lower back felt like fire when he sat down at night. (Tr. 314.) He stated he takes frequent naps because his injuries cause fatigue. (Tr. 314). He testified that he was not taking any pain medications, but took a drug for rebuilding cartilage and tendons. (Tr. 314.) Claimant stated that he had not been seeing a doctor because he did not have medical insurance. (Tr. 315.)

Claimant also testified about his physical capabilities and daily activities. He stated that he does his own grocery shopping, cooking, laundry, and cleaning, but has a friend come in to do the dusting because dust aggravates his allergies. (Tr. 315--16.) He testified that he takes out the garbage, and drives approximately 12 miles two or three times per week. (Tr. 317.) Claimant stated that he enjoys collecting native trees, reading, and watching the news or documentaries. (Tr. 318.) He stated that he does routine maintenance and repairs on his 128 year-old house, but quit working on the roof and trimming trees because these activities are dangerous given his condition. (Tr. 319.) Claimant also stated that he can only remain on his feet for about an hour and requires periodic rest when he does any work around the house. (Tr. 322--23.)

IV. Medical Evidence*fn1

Claimant was struck by an automobile and sustained substantial injuries in 1965. (Tr. 231.) After the accident, Dr. Diaz, Claimant's treating orthopaedic specialist, diagnosed Claimant with a fractured pelvis, dislocated left sacroiliac, possible damage to the sciatic nerve, fractured left tibia and fibula, severe laceration to the perineal region and open fracture of the skull with brain injury. (Tr. 231.)

In September 1997, Dr. Karesh, an internal medicine specialist at Dryer Medical in Aurora, IL, examined Claimant. He noted hypersensitivity in Claimant's chronic, non-draining left heel ulcer, and opined that no further treatment would be of value. (Tr. 238.) He also noted that Claimant complained of right elbow pain, which radiated to his forearm and shoulder and was associated with overuse at work. (Tr. 238.) In December 1997, Dr. Karesh noted some atrophy in the left calf, and to a lesser extent, in the left thigh. (Tr. 237.) He indicated that Claimant's heel ulcer appeared to be healed with some chronic callus formation in the area. (Tr. 237.) He noted good range of motion in Claimant's hip and knees, and recommended that he wear a silicone pad to prevent irritation of his left heel. (Tr. 237.) In August 1998, Dr. Karesh noted Clamant's discomfort with hyperextension of the left knee, and recommended physical therapy and a hip x-ray. (Tr. 234.) The x-ray revealed evidence of extensive old trauma, but no acute abnormalities. (Tr. 236.)

In September 1998, Dr. Lacart, another orthopedic physician at Dreyer Medical, noted that Claimant complained of knee pain with hyperextension and some groin pain. (Tr. 235.) He also noted Claimant's leg length discrepancy and recommended a shoe lift. (Tr. 235.)

In December 1998, Dr. Karesh noted some numbness and tingling in Claimant's upper extremities and hands, but also noted that he had no muscle weakness. (Tr. 234.) Dr. Karesh speculated that Claimant might have carpel tunnel syndrome exacerbated by repetitive over-use at work. (Tr. 234.)

In August 1998, Claimant visited Dr. Levin, a podiatrist, for treatment of his ulcerated left heel. (Tr. 264.) Dr. Levin indicated that Claimant's ulcer was improving probably because of his part-time work schedule, and advised him against returning to full-time work. (Tr. 264.) Claimant returned for a check-up in December 1998, and Dr. Levin noted some increased irritation. (Tr. 264.) Dr. Levin dispensed new Silopads to Claimant two times during 1999. (Tr. 264.)

In December 1999, Dr. Karesh re-examined Claimant pursuant to a disability determination. (Tr. 232.) He noted Claimant's discomfort in the neck and shoulder area with range of motion, but added that he had normal strength in the upper body. (Tr. 232.) He noted that Claimant's mental status and neurological tests were normal. (Tr. 232.) He noticed atrophy in Claimant's left quadriceps, which he believed was due to his old peroneal nerve injury. (Tr. 232.) He noted tenderness on Claimant's left heel, but indicated that there was no drainage and that the ulcer had healed and scarred. (Tr. 232.) He opined that Claimant had reasonably good range of motion in his left ankle and could ambulate independently, but was somewhat restricted ...


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