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Callahan v. Astrue

April 22, 2010

THOMAS G. CALLAHAN, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

Plaintiff Thomas G. Callahan appeals the denial of his application for disability insurance benefits and supplemental security income (collectively Disability Benefits) under the Social Security Act. 42 U.S.C. §§ 405(g) & 1383(c)(3). The parties have filed cross motions for summary judgment. For the reasons set forth below, the Defendant Commissioner's Motion for Summary Affirmance (d/e 12) is ALLOWED, and Plaintiff Callahan's Motion for Summary Judgment (d/e 10) is DENIED. The Decision of the Commissioner is affirmed.

STATEMENT OF FACTS

Callahan was born on August 27, 1955. He has a sixth grade education. He previously performed work as a machinist, a loader/operator, a convertible top installer, a meat grinder, a cashier, a plastic molding machine tender, and a cable installer. Callahan suffered from back problems and related leg pain, and also, shoulder problems. On March 2, 2006, Callahan went to the emergency room because he injured his back while trying to help his mother. The emergency room physician diagnosed a thoracic lumbar sacral strain and prescribed pain medication. Answer (d/e 7), attached Certified Record of Proceedings before the Social Security Administration (R.), 284-85. On March 6, 2006, Callahan went to see Daniel Lanzotti, M.D., because the back pain persisted. Dr. Lanzotti found straight leg testing was positive on the right. R. 338. Dr. Lanzotti diagnosed back pain with radiculopathy and stress of life.

Callahan continued to have problems with back pain. Callahan went back to the emergency room on May 5, 2006, with intractable back pain.

R. 244. He was given toradol, norflex, and dilaudid and released. R. 245. On May 10, 2006, he saw Dr. Lanzotti. Dr. Lanzotti found straight leg testing mildly positive on the right. Dr. Lanzotti ordered an MRI of Callahan's LS spine area. R. 335. The MRI showed a small broad-based posterior L5-S1 disc protrusion without significant mass effect on the thecal sac, and mild lower lumbar spine degenerative facet disease. R. 242.

Callahan saw Stephen Pineda, M.D, on June 13, 2006. After reviewing the MRI results and examining Callahan, Dr. Pineda ordered epidural injections for the pain. R. 332. On June 19, 2006, Callahan saw Dr. Gary Western for the epidural injections. Dr. Western diagnosed a degenerative disc disease at L4-5, L5-S1. He prescribed physical therapy and arranged for the epidural injections. R. 330-31.

Callahan applied for Disability Benefits on June 27, 2006. He alleged that he became disabled on December 31, 2004.

On July 3, 2006, Callahan returned to see Dr. Pineda because the epidural injections were not effective. Dr. Pineda ordered another MRI of Callahan's back. The MRI was performed on July 7, 2006. The MRI showed a node at the endplate of L4, a mild defuse disc bulge at the L5-S1 disc, and mild bilateral facet hypertrophy. R. 240. Callahan also went to physical therapy on July 7, 2006. The therapist noted that Callahan had an abnormal gait and used a cane. The therapist noted positive testing and difficulty performing activities involving back movement. R. 326-27.

Dr. Lanzotti examined Callahan again on July 19, 2006. R. 334. Dr. Lanzotti noted that Callahan walked with a cane and had muscle tightness in his back. R. 334. Dr. Lanzotti noted that Callahan underwent epidural injections without relief. R. 334. Dr. Lanzotti noted mildly positive straight leg testing on the right. R. 334.

A state agency physician, Vittal Chapa, M.D., performed a consultative examination on September 6, 2006. R. 343-45. Dr. Chapa noted that an MRI showed a small herniated disc. Dr. Chapa noted that Callahan walked with a cane. He opined that Callahan could walk 50 feet without a cane, but could not heel or toe walk, and had an antalgic gait. Dr. Chapa noted positive straight leg testing on both sides and missing ankle reflexes. He concluded that Callahan had lumbar radiculopathy, but could walk short distances without a cane. R. 345.

Callahan went to see Per Freitag, M.D., on July 26, 2007. Dr. Freitag noted that Callahan had discomfort walking and an antalgic gait. Dr. Freitag suspected that Callahan had lumbar radiculopathy and ordered EMG tests and prescribed a back brace. R. 396. The EMG tests were negative. R. 395. Dr. Freitag saw Callahan again on September 4, 2007. At that time, he noted weakness in Callahan's left ankle and toe dorsiflexion. R. 394.

On September 13, 2006, Charles Kenney, M.D., reviewed the medical record and prepared a physical residual functional capacity assessment. R. 383-90. He opined that Callahan could walk for 6 hours in an 8-hour day, could lift and carry 20 pounds occasionally and 10 pounds frequently, could use foot controls without restrictions, and could occasionally climb ladders, scaffolds and ropes. R. 383-85.

Callahan saw Dr. Freitag again on October 18, 2007. At that time, Dr. Freitag determined that Callahan's pain was probably discogenic. Dr. Freitag ordered a discogram. The discogram was positive for reproduction of concordant pain at the L5-S1 disc. R. 400-01.

On November 7, 2006, Dr. Lanzotti examined Callahan. He found positive straight leg testing on the left and noted paralumbar spinous muscle spasms. R. 355. On November 28, 2007, Callahan saw Ferdinand Salvacion, M.D., at the Memorial Medical Center Pain Clinic. Dr. Salvacion prescribed methadone and norco for the pain. R. 402. Callahan saw Dr. Freitag again on December 11, 2007. Dr. Freitag scheduled an IDET procedure to reduce the pain. R. 458. Dr. Freitag performed the IDET procedure on February 15, 2008. At a follow-up visit on March 26, 2008, Callahan indicated his pain was not affected by the procedure. R. 449.

Callahan developed shoulder problems in August 2007, after he tried to sand some wood. R. 421. Callahan underwent an MRI of his shoulder on September 5, 2007. Callahan was referred to Brett Wolters, M.D. Dr. Wolters noted that the MRI showed a rotator cuff tear, tendon tears, a partially subfluxed biceps tendon, and AC joint arthritis. R. 420. Callahan received cortisone injections and underwent physical therapy. He showed improvement, but the pain remained significant. R. 523. On March 27, 2008, Callahan underwent arthroscopic surgery to repair the biceps tendon, to decompress the subacromial area, and to excise the distal clavicle. R. 494-95.

The Administrative Law Judge held the first hearing in this case on April 23, 2008. Callahan and his attorney were present, along with vocational expert Ron Malik. Callahan testified that he had significant back pain and neck pain. He stated that the pain medication helped somewhat. He said that he had good days and bad days. R. 643. The medication gave him a sleepy, tired feeling. R. 644. Callahan testified that he had trouble sitting or standing for extended periods. He said that he could sit or stand for about 25 minutes at a time. He said that he could walk less than a quarter mile at a time. On a good day, he said he could alternate between sitting and standing for about an hour and a half before he needed to lie down. R. 646. On a bad day, he would need to lie down after 20 minutes.

R. 646. He could not lift a gallon of milk with his right hand. He could lift a gallon of milk with his left hand, but could not carry the gallon any distance. R. 646. The back pain kept him from lifting and carrying. R. 647. The ...


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