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Jacobson v. Astrue

April 16, 2010


The opinion of the court was delivered by: P. Michael Mahoney, Magistrate Judge United States District Court

Magistrate Judge P. Michael Mahoney


I. Introduction

Kennith Jacobson 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 October 27, 2008. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

Claimant first filed for DIB on or about March 23, 2006. (Tr. 58--60.) He alleges a disability onset date of June 14, 2004. (Tr. 58.) His claim was denied initially and on reconsideration. (Tr. 6, 24--26.) The Administrative Law Judge ("ALJ") conducted a hearing into Claimant's application for benefits on February 6, 2008. (Tr. 10.) At the hearing, Claimant was represented by counsel and testified. (Tr. 323--367.) Linda Gels, a vocational expert, also testified at the hearing. (Tr. 358--67.) The ALJ issued a written decision denying Claimant's application on February 27, 2008, finding that jobs existed in significant numbers in the national economy that Claimant could perform. (Tr. 10--17.) Because the Appeals Council denied Claimant's Request for Review regarding the ALJ's decision, that decision constitutes the final decision of the Commissioner. (Tr. 1--5.)

III. Background

Claimant was born on October 9, 1961, making him 47 years old at the time of his hearing. (Tr. 327.) He completed two months of the ninth grade. (Tr. 327.) On June 14, 2004, Claimant slipped on an unstable board at work and fractured his left foot in multiple places. (Tr. 150.) He alleges that he still experiences swelling and pain in the foot. He rated the pain that he usually feels as a "seven" on a scale of one to ten, but stated that it can be more. (Tr. 334--35, 346.) Claimant testified that standing more than ten minutes or walking for too long aggravates the pain and causes his foot to pulsate and throb. (Tr. 336.) Claimant testified that after he walks a little ways into the grocery store from his truck, he must sit down. (Tr. 336.) He testified that sitting without moving his foot causes it to throb. (Tr. 337.) Elevating his foot tends to relieve the swelling and pain. (Tr. 347.) Claimant takes Aleve and Tylenol, which bring the pain down to about a "five" on a one to ten scale. (Tr. 348.)

From 1986 until 1996, Claimant was employed laying blacktop. (Tr. 78.) In that job, he was required to walk and stand 10--12 hours per day. (Tr. 79.) From 1996 until June 14, 2004, Claimant worked as a "cut guy" for MC Builders. (Tr. 78, 329.) In that job, Claimant cut and carried pieces of lumber that were later used in construction. (Tr. 329.) He testified that he would have to carry 10 or 15 pounds at a time. (Tr. 330.) Claimant testified that he worked one day at the GCA Nuclear Facility as a custodian, but that his foot bothered him such that he did not return after the first day. (Tr. 355.)

Since he became unemployed, Claimant testified that his day usually consists of waking up and walking out to his garage where he lights a wood burning stove and watches television. (Tr. 341.) He is able to watch and concentrate on television programs. (Tr. 342.) He testified that he occasionally reads, but that it takes him quite a while to get through a book. (Tr. 342.) He spends time cleaning his garage and hanging stuff on the walls. (Tr. 350.) Claimant testified that he mowed the lawn a couple of times the summer before the hearing, but that the vibrations hurt his foot and that his brother usually mows the lawn. (Tr. 345.)

Claimant testified that he takes out the trash once in an while, and that he occasionally grills. (Tr. 352.) He does the dishes. (Tr. 353.) His girlfriend does the grocery shopping, and he will accompany her to the grocery store sometimes. (Tr. 352.) Claimant also testified that he likes to boat, that he stores a boat where he lives, but that he does not help take it out or put it back into storage or the water. (Tr. 352--53.)

Claimant testified that he drinks alcohol four or five times per week. (Tr. 351.) When he does drink, he drinks about eight beers over the course of the day. (Tr. 351.) He no longer drives due to a several DUI convictions. (Tr. 120, 344.)

IV. Medical Evidence

Claimant's relevant medical history begins on June 14, 2004. (Tr. 150.) Claimant injured his left foot when he slipped on an unstable board at work. (Tr. 150.) He was taken to the emergency room and seen by Dr. McCarty. (Tr. 150.) X-rays at that time showed fractures of the second, third, and fourth metatarsals proximally, and a fracture of the cuboid. (Tr. 150.) His left ankle was sprained. (Tr. 150.) Dr. McCarty advised elevating the foot and exercising, and indicated that Claimant could engage in partial weight bearing on his heel only. (Tr. 150.) Dr. McCarty prescribed Claimant Vicodin and advised the use of crutches. (Tr. 150.)

Claimant returned to Dr. McCarty for a follow-up on July 22, 2004. (Tr. 150.) At that time, he still had moderate swelling of the foot and local tenderness. (Tr. 150.) Ankle motion was improving but was still somewhat limited, and forefoot motion was moderately restricted. (Tr. 150.) X-rays showed that the fractures in the second, third, and fourth metatarsals, and the fracture in the cuboid, were all healing. (Tr. 150.) Dr. McCarty refilled Claimant's Vicodin, and recommended that Claimant limit weightbearing on his left foot. (Tr. 150.)

Dr. McCarty saw Claimant again on August 19, 2004. (Tr. 151.) Claimant indicated that he was beginning to walk again with some regularity, but that he did not have a good push-off and that he had a significant limp. (Tr. 151.) Mechanical motion of the foot was improving, and the swelling was going down. (Tr. 151.) X-rays showed that the fractures were healing. (Tr. 151.) Claimant still required "stronger pain medication with increased activities." (Tr. 150.)

Dr. McCarty indicated that Claimant could still not perform his regular work duties, but that he could perform duties that required sitting and limited standing with no climbing, squatting, or kneeling. (Tr. 151.)

On September 21, 2004, Claimant returned to Dr. McCarty. (Tr. 151.) Dr. McCarty noted that Claimant was slowly improving but that he still could not stand for a prolonged period of time, and that he would experience a "throbbing sensation . . . for a period of time briefly throughout the day." (Tr. 151.) Claimant's range of motion was approaching normal, but Claimant still experienced some discomfort. (Tr. 151.) X-rays showed that the fractures were healing without complication. (Tr. 151.) Dr. McCarty advised Claimant to continue physical therapy, and indicated that Claimant should stay off work for another four weeks. (Tr. 151.)

Claimant saw Dr. McCarty again on October 19, 2004. (Tr. 151.) Claimant told Dr. McCarty that he was still experiencing pain and a throbbing discomfort. (Tr. 151.) Dr. McCarty noted that Claimant had limited motion, and a mild restriction of flexion and extension. (Tr. 151.) X-rays showed that Claimant's fractures were still healing without evidence of complications. (Tr. 151.) Claimant indicated to Dr. McCarty that he was not able to do his regular construction work. (Tr. 151.) Dr. McCarty referred Claimant to Dr. White for input regarding Claimant's subjective pain and inability to work. (Tr. 151.)

Claimant visited Dr. White on November 2, 2004. (Tr. 152.) Dr. White noted that Claimant had some enlargement around the midfoot, and that he was tender over the lateral side of the foot in the area of the 4--5 tarsometatarsal joints. (Tr. 152.) Motion of the 4--5 tarsometatarsal joints was painful. (Tr. 152.) The metatarsophalangeal joints had normal motion and no tenderness. (Tr. 152.) Claimant's ankle could dorsiflex to neutral, and subtalar motion was not painful. (Tr. 152.) Dr. White determined that the ankle joint was stable. (Tr. 152.) Dr. White wrote that it could be "several months or perhaps even a year before pain [had] completely resolved." (Tr. 152.) He noted, however, that there was no indication for operative intervention. (Tr. 152.) He suggested a Supra-Malleolar Orthosis ("SMO") or Arizona ankle brace for better stability and weightbearing. (Tr. 152.)

On December 2, 2004, Claimant returned to Dr. McCarty indicating that the SMO helped with certain activities on smooth, level surfaces, but that walking on uneven ground still was not very well tolerated. (Tr. 152.) Dr. McCarty noted that mechanical motion of the left ankle and foot was improving, but was still limited and slightly uncomfortable. (Tr. 152.) Dr. McCarty indicated that Claimant could not yet go back doing his previous work in construction, but that he could "be involved in sitting activities." (Tr. 152.)

Claimant followed up with Dr. McCarty on March 3, 2005. (Tr. 153.) Claimant continued to complain of soreness, swelling, and stiffness in his foot, and stated that he had difficulty walking. (Tr. 153.) X-rays indicated that Claimant's fractures were healed. (Tr. 153.) Dr. McCarty ordered an MRI to help identify sites of active bone marrow edema or stress-related change. (Tr. 153.)

On March 22, 2005, Claimant returned to Dr. McCarty indicating that he could walk longer on flat surfaces than he could in the past, but that he still had discomfort if he walked too long or at too rapid of a pace. (Tr. 153.) He had soreness and stiffness in his foot, and stated that walking two to three blocks aggravated his symptoms. (Tr. 153.) Uneven surfaces were still poorly tolerated. (Tr. 153.) Mechanical motion of the left foot, subtalar motion, inversion, and eversion continued to be moderately restricted. (Tr. 153.) The MRI showed findings consistent with the trauma sustained and the period of time post injury. (Tr. 153.) Dr. McCarty noted that nothing in the MRI was "unusual or unexpected." (Tr. 153.) Dr. McCarty advised Claimant that he "may never be able to return to all of the work activities or the type of work activities that he was previously involved in, and a lesser type of work or some modification of work duties on a permanent basis may be necessary." (Tr. 153.) Dr. McCarty noted that Claimant "[c]ould continue to do sitting work or limited standard work but regular work was still not employable." (Tr. 153.)

Claimant saw Dr. McCarty on June 14, 2005 and indicated that his condition had not changed since March 2005. (Tr. 154.) He still had trouble building, going up and down ladders, climbing on unlevel surfaces, and walking on uneven ground. (Tr. 154.) Claimant had normal flexion and extension of the foot, but his subtalar movement was still uncomfortable and slightly limited. (Tr. 154.) Inversion and eversion of the foot were mildly restricted and uncomfortable. (Tr. 154.) Dr. McCarty noted that Claimant's residual discomfort would require activity modification for long term employment. (Tr. 154.)

On July 18, 2005, Claimant was referred to Dr. Eilers of the Physical Medicine and Rehabilitation Associates by his attorney and underwent an evaluation. (Tr. 194.) At the time, Claimant was pursuing a worker's compensation claim. Dr. Eilers indicated that Claimant showed 1 pitting edema , and that he had pain at the end of inversion and eversion, as well as with dorsiflexion. (Tr. 196.) Dr. Eilers also noted that Claimant had significant plantar fascial tenderness on palpation over the plantar fascia of the foot, and had significant myofascial pain. (Tr. 196.) Dr. Eilers believed that Claimant's condition was permanent and limited him to "light sedentary work or a sedentary position with ...

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