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Lymperopulos v. Astrue

March 10, 2010


The opinion of the court was delivered by: Judge Nan R. Nolan


Plaintiff Marko J. Lymperopulos, II claims that he is disabled due to injuries he sustained in a car accident. He filed this action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. §§ 416, 423(d). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and have now filed cross-motions for summary judgment. For the reasons set forth here, the Commissioner's motion is granted and Plaintiff's motion is denied.


Plaintiff applied for DIB on January 25, 2006, alleging that he became disabled on April 21, 2005 due to multiple left leg and hip injuries, including a fractured acetabular (pelvic) bone, hip dislocation, fractured tibial plateau,*fn1 fractured knee cap, torn meniscus ligament*fn2 and leg compartment syndrome.*fn3 (R. 91, 146.) The application was denied initially on May 17, 2006, and again on reconsideration on September 5, 2006. (R. 87-91, 93-96.) Plaintiff appealed the decision and requested an administrative hearing, which was held on October 17, 2007. Shortly thereafter, on March 28, 2008, Administrative Law Judge Maren Dougherty (the "ALJ") found that Plaintiff was disabled during the closed period of April 21, 2005 through March 31, 2007, but that he retains the residual functional capacity to perform sedentary work as of April 1, 2007. (R. 78, 83.) The Appeals Council denied Plaintiff's request for review on January 28, 2009, and he now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner.


Plaintiff was born on July 27, 1969 and was 38 years old at the time of the ALJ's decision.

(R. 153.) He has a high school education and has worked as a journeyman carpenter, masonry worker and unloader. (R. 147, 150, 156.)

A. Medical History

On April 21, 2005, Plaintiff sustained left hip and leg fractures in a car accident. Michael D. Stover, M.D. performed open reduction and internal fixation surgery to repair Plaintiff's hip on April 22, 2005. (R. 233-38, 296-98.) Dr. Stover performed additional surgical procedures to repair Plaintiff's leg on April 28 and May 9, 2005, including open reduction and internal fixation of the left tibial plateau fracture. (R. 239-40, 294-95.) Following his discharge on May 17, 2005, Plaintiff started physical therapy and recovered well from his hip injury, but he experienced continuing discomfort in his leg. In December 2005, Dr. Stover observed "some narrowing laterally" in the left knee, and expressed concern that such a condition had appeared "this early on in the postoperative course." (R. 211-17, 221.) A few months later in March 2006, Dr. Stover determined that Plaintiff might benefit from a knee osteotomy, a surgical procedure to add or remove bone from the upper shinbone to help shift body weight off the damaged portion of the knee joint. (R. 218, 303; ( Dr. Stover indicated that the procedure might improve Plaintiff's overall limb alignment and "hopefully improve the longevity of the knee as well." Plaintiff said that he would think about the option. (R. 218, 286.)

On June 15, 2006, Plaintiff returned to Dr. Stover complaining of pain, popping and clicking in his knee. Dr. Stover observed tenderness and loss of lateral joint space, and diagnosed post-traumatic arthrosis of the knee that caused daily pain and limitation. He referred Plaintiff to William Hopkinson, M.D., who had more experience with knee injuries in younger patients. (R. 284-85.) During an examination on August 28, 2006, Dr. Hopkinson observed that Plaintiff exhibited an antalgic limp favoring his left leg, and irregularities on the articular surface. Plaintiff complained of numbness in his knee and foot and reported taking Excedrin and one to two tablets of Norco*fn4 each day for pain. Dr. Hopkinson diagnosed "[p]ost traumatic arthritis... with soft tissue pain and possible mechanical derangement," and recommended an arthroscopic evaluation of the knee and removal of some of the surgical screws. Dr. Hopkinson also gave Plaintiff a steroid injection, which helped to reduce his pain. (R. 282-84.)

On September 21, 2006, Dr. Hopkinson performed the arthroscopic evaluation of Plaintiff's left knee, which revealed "several loose bodies and chondromalacia."*fn5 (R. 280-82.) Dr. Hopkinson removed the loose bodies and shaved the "articular cartilage in the lateral tibial plateau, the medial femoral condyle, and the patella." (R. 281.) During a follow-up examination on October 2, 2006, Dr. Hopkinson advised that if Plaintiff did not achieve dramatic pain relief, "he could consider proceeding with a varus producing distal femoral osteotomy." (R. 280.)

On February 21, 2007, Plaintiff returned to Dr. Stover complaining of pain, catching in his knee and stiffness. (R. 370.) Dr. Stover opined that Plaintiff "would benefit from an, at least, attempted knee salvage with an osteotomy and arthroscopy," and noted that Plaintiff was "getting his disability paperwork for that." (Id.) Dr. Stover recommended that Plaintiff receive another steroid injection and check back in a couple of months regarding the osteotomy. (Id.)

Also on February 21, 2007, Dr. Stover completed a Physical Residual Functional Capacity Questionnaire on Plaintiff. (R. 344-47.) Dr. Stover noted that Plaintiff suffered from left knee pain, locking and swelling, with sharp, constant pain that increased with movement. (R. 344.) Dr. Stover opined that Plaintiff was incapable of performing even low stress jobs and could not walk a single block without rest or severe pain. In addition, Plaintiff could only sit for 30 minutes at a time and stand for 20 minutes at a time, and he needed to use a cane to walk. (R. 345-46.) In his Physician's Report for the State of Illinois Department of Human Services dated the same day, Dr. Stover found Plaintiff to have more than 50% reduced capacity in walking, bending, standing, stooping and sitting, and in performing physical activities of daily living. (R. 356.)

Radiographs taken on May 9, 2007 showed "improvement of previously seen depression of the lateral tibial plateau," and increased "moderate joint effusion" (i.e., fluid in the knee) compared with a prior August 28, 2006 examination. (R. 371.) The following month, Plaintiff went to the Centegra Health System emergency room complaining of moderate pain in his left knee due to a recent fall. (R. 362-63.) He also complained of numbness in his left foot. (R. 365.) X-rays revealed "well healed tibial plateau fracture," "[d]egenerative changes lateral tibial plateau," and "[n]o acute disease." (R. 364.) The doctor instructed Plaintiff to elevate his left foot, refrain from placing weight on it, and consult a physician if he experienced any further problems. (R. 367.)

On December 27, 2007, Plaintiff saw Dr. Stover for "significant" pain and stiffness in his knee. (R. 374.) Plaintiff reported that he continued taking a narcotic each day along with anti-inflammatories. Dr. Stover observed "some swelling about the knee but no knee effusion," and diagnosed "[p]ost traumatic joint arthritis." He discussed with Plaintiff the differences between total joint replacement and osteotomy, and noted that the osteotomy "may be less reliable with the decreased arc of motion as well as with his post traumatic arthrosis of the lateral joint space." (Id.) Dr. Stover further explained Plaintiff's options with respect to total knee arthroplasty. (Id.) A radiograph taken the same day showed "narrowing of the lateral knee joint space" and "a mild left genu valgus deformity." (R. 376.) Records from Loyola Medicine reflect that as of January 2008, Plaintiff was still taking Norco and Excedrin for pain. (R. 379.)

B. Plaintiff's Testimony

Plaintiff testified that he has constant pain in his knee, and he takes one Norco and four to five Advil or Excedrin each day "to keep the pain at... a comfortable level." (R. 20-21.) When Plaintiff does not take the medication, his pain is at level six. With the Norco, however, his pain goes down to a level four for two to three hours, after which he supplements with over-the-counter drugs. (R. 22-23.) Plaintiff told the ALJ that he does not take the Norco at the same time every day, but waits until he needs it most, which is usually after lunch. (R. 58-59.) He does not like taking Norco because it makes him feel dizzy and a little lightheaded for about an hour, and he has trouble focusing, but taking Advil or Excedrin alone only reduces his pain to level five. (R. 25-26, 50.) Plaintiff confirmed, however, that he is able to function during the first hour on Norco, but just "feel[s] different." (R. 26-27.)

At the time of the hearing, Plaintiff had lived alone in a two-story condominium for a year and was able to climb the stairs one at a time. (R. 28-30.) He is capable of doing some light dusting and vacuuming, laundry and microwave cooking, and he goes grocery shopping every seven to ten days to purchase small items. He also reported getting six to eight hours of uninterrupted sleep each night. (R. 30-33.) When Plaintiff moved into the condominium, he was able to carry lighter boxes for about an hour at a time. (R. 37.)

Plaintiff told the ALJ that he can sit in a fixed position for an hour and a half before needing to get up and move around, and stand for less than an hour at a time. (R. 33.) He also indicated that he might be able to sit for six hours straight, explaining that "[w]ith pain medication I guess anything would be possible." (R. 49.) Plaintiff testified further, however, that he needs to get up and move around and is "always up and down during the course of the day sitting and standing to wherever I feel comfortable." (R. 48.) He also rubs his leg whenever it bothers him. (R. 68.) Plaintiff has a cane but does not like to use it; without the cane, he can walk for a block before needing to stop for a couple minutes to bend and rub his knee. (R. 33-35.) Plaintiff described his typical day as watching television for a couple hours; running errands; visiting with friends and family; and playing videogames. He likes to sit in a reclining chair because his leg feels more comfortable in a "fixed flat position" and is "best when it's straight." He is able to drive, and he helps his sister with minor repairs around her house, such as hanging blinds. (R. 37-42, 45-46.)

With respect to additional surgeries, Plaintiff acknowledged that his doctors have been discussing the possibility of performing a distal femoral osteotomy for some time, but indicated that he does not ...

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