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Charles v. Astrue

October 25, 2010

CHRISTOPHER C. CHARLES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER

Plaintiff Christopher C. Charles ("Charles" or "Plaintiff") filed his Motion for Summary Judgment seeking reversal and remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying Charles's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). This case presents the following issues: (1) whether the Administrative Law Judge ("ALJ") conducted a proper credibility determination concerning Charles's complaints of pain; (2) whether the ALJ erred in considering Charles's unsuccessful work attempt; (3) whether the ALJ properly explained her finding of Charles's residual functional capacity ("RFC"); (4) whether the ALJ conducted a proper analysis of the medical opinions; and (5) whether the ALJ erred by failing to recontact Dr. Medina, Charles's treating physician. For the reasons that follow, the Court denies Charles's motion.

I. BACKGROUND

A. Procedural History

Plaintiff initially applied for both DIB and SSI on May 9, 2005, alleging an onset date of February 5, 2005. (Administrative Record ("A.R.") at 138.) He later amended his application seeking an amended onset date of December 20, 2005 and requesting a closed period of benefits from December 20, 2003 to October 31, 2006. (Dkt. No. 15.) The Social Security Administration ("SSA") denied both applications on August 4, 2005. (A.R. at 115-18.) Plaintiff subsequently filed a request for reconsideration on September 14, 2005, which was denied on December 12, 2005. (Id. at 106-07, 110-12.) Plaintiff, through counsel, then requested a hearing before an ALJ. (Id. at 46-47.)

On December 6, 2007, ALJ Judith S. Goodie presided over the hearing at which Plaintiff appeared with his attorney. (Id. at 50.) On December 20, 2007, the ALJ issued a decision finding Plaintiff was not disabled and thus not entitled to either DIB or SSI. (Id. at 13-30.) The ALJ found that while Plaintiff was no longer able to perform his past relevant work as a machine operator, that Plaintiff has the RFC capable of performing a range of work at the sedentary level with additional limitations.*fn1 (Id. at 29.)

On January 30, 2008, Plaintiff requested a review of the ALJ's decision, which the Appeals Council denied on July 9, 2009. (Id. at 5-8, 11-12.) Consequently, the ALJ's decision became the final decision of the Commissioner of Social Security. Plaintiff filed the instant action on August 24, 2009 seeking review by this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c).

B. Hearing Testimony

1. Christopher C. Charles

Plaintiff testified at the hearing that he suffered a chemical burn injury to his left foot on December 20, 2003, after he accidentally stepped into a bucket of ink remover while working as a machine operator at Royal Continental Box Company. (Id. at 61.) Plaintiff experienced sharp pain that traveled up his left leg after the accident and sought treatment to relieve the pain. (Id. at 70, 77.) Plaintiff was off work for several months following the accident and briefly returned to work in September 2004. (Id. at 62, 83.) Upon his return to work, Plaintiff testified the he was constantly in pain because his job required a lot of walking and standing. (Id. at 62.) Plaintiff testified that he called in sick an average of 2-3 times a week during this period due to pain. (Id. at 84.) Plaintiff did not use a cane when he returned work and was able to drive himself to work. (Id. at 78.) Plaintiff continued working as a machine operator from September 2004 until he was eventually terminated in February 2005. (Id. at 84.)

Plaintiff testified that he began his current job as a school bus driver in November 2006. (Id. at 60.) He drives a bus equipped with an automatic transmission and works approximately 20 hours a week. (Id. at 60-61.) Plaintiff sits most of the time while working but will occasionally assist the school children on and off the bus. (Id. at 63.) He does not lift the children at any time. (Id.) Plaintiff testified that he was able to begin work as a school bus driver because he stayed off his foot during the three years after his accident and that this helped his foot heal. (Id. at 69.) Plaintiff continues to experience pain and takes over the counter pain medication two or three times a day. (Id. at 63, 72.)

Plaintiff testified about his daily activities during the nearly three year period between his accident in December 2003 and his employment as a school bus driver in November 2006. (Id. at 64-85.) Plaintiff lived in a two story home with the bedrooms on the second floor and the kitchen and bathroom on the first floor. (Id. at 64, 67-68.) Plaintiff used the stairs to go from his second floor bedroom to the bathroom and to take meals in the first floor den. (Id. at 67-68.) Plaintiff did not assist with the cleaning, cooking, grocery shopping, or laundry during this three year period and was unable to wash and bathe himself. (Id. at 65-6, 68, 84.)

Plaintiff testified that he constantly experienced very sharp pain that traveled up his leg. Id. at 70.) To alleviate the pain, Plaintiff took prescription medication, received physical therapy, laid down for several hours, or elevated his foot. (Id. at 71, 77, 79-80.) He was able to walk about one-half block and stand for 20 minutes before needing to sit. (Id. at 74.) Sitting down would relieve the pain, but Plaintiff was only able to remain seated for one-half hour before feeling the need to stand. (Id.) Plaintiff could not explain why getting up from a seated position helped relieve the pain. (Id. at 74-75.) Plaintiff testified that he did not believe that he could hold any job during the three year period because the pain that he experienced was "too severe." (Id. at 83.)

2. Cheryl R. Hoiseth - Vocational Expert*fn2

Vocational expert Chery R. Hoiseth reviewed Plaintiff's file and was present at the December 6, 2007 hearing. (Id. at 16, 51.) She testified that Plaintiff's job as a machine operator was a heavy duty, semi-skilled work and that his school bus driver job is medium duty, semi-skilled work. (Id. at 86.) Ms. Hoiseth testified that Plaintiff was performing the school bus driver job at the light exertion level. (Id.)

The ALJ asked Ms. Hoiseth hypothetical questions about the type of work a person with Plaintiff's limitations would be able to perform. (Id.) The ALJ asked Ms. Hoiseth to assume an individual of Plaintiff's age, education, and work experience who was able to lift and carry up to 10 pounds, sit for six hours, stand and walk for two hours, and push or pull 10 pounds. The hypothetical also assumed that the person was able to occasionally crawl, and manage stairs and ramps while avoiding concentrated exposure to hazardous machinery, unprotected heights, and occasional balancing. (Id. at 87.) While Ms. Hoiseth concluded such an individual could not perform the prior job Plaintiff held as a machine operator, she testified that there were other jobs in the fourteen county regional area surrounding Chicago that such an individual could perform. (Id.) Ms. Hoiseth stated that there are approximately 3,000 information clerk positions; 1,000 order clerk positions; and 2,100 general office clerk positions in the fourteen county regional area. (Id. at 86-87.) The ALJ posed two additional hypothetical questions which: (1) added the ability to shift positions from sitting to standing and standing to sitting; and (2) added the need to elevate the left foot on a footstool when seated. (Id. at 87.) Ms. Hoiseth testified that the additional hypothetical questions had no impact and that the same jobs were available in the circumstances posed by all three hypothetical questions. (Id.)

C. Medical Evidence

Plaintiff's medical records from various medical institutions were admitted into evidence at the hearing without objection. (Id. at 52-53.) Those records included reports from the medical providers Plaintiff visited to alleviate his pain along with records from consulting physicians engaged by either the Bureau of Disability Determination Services ("DDS") or in connection with Plaintiff's Workers' Compensation claim.

1. Loyola University Medical Center

Plaintiff was treated by Dr. Gamelli of Loyola University Medical Center when Plaintiff went to the emergency room two days after sustaining the injury to his left foot. (Id. at 256.) Plaintiff remained at Loyola for two days, receiving antibiotics the first day and was discharged with prescription antibiotics on day two. Dr. Gamelli noted that throughout Plaintiff's stay, he "tolerated a general diet and complained of minimal pain." (Id.) Plaintiff was given Vicodin tablets for pain during his hospital stay and was discharged on December 24, 2003 with restrictions to elevate his foot whenever sitting or laying down, not to drive while taking narcotics or other medications, and to not return to work because further intensive wound care was required. (Id. at 256, 267.)

Plaintiff returned to Loyola on December 29, 2003 for physical therapy and follow up care and continued receiving follow up care at Loyola through November 2004. (Id. at 225-253.) Progress notes indicate Plaintiff initially complained of sharp, intermittent pain of 8/10.*fn3 (Id. at 253.) By early January 2004, Plaintiff reported that the prescription medication Norco was providing good pain relief. (Id. at 252.) In ...


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