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Leonard v. Astrue

November 10, 2010

MONTRELL LEONARD, A MINOR BY LAVERN BERNARD, HIS MOTHER PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Michael T. Mason, United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, a minor child, Montrell Leonard ("Montrell" or "claimant"), by his mother, Lavern Bernard, seeks judicial review [19] of the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying his claim for disability benefits under the Social Security Act (the "Act"). The Commissioner filed a response [24] arguing that this Court affirm the decision of the Administrative Law Judge ("ALJ"). We have jurisdiction to hear this action pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, claimant's request for summary judgment is granted in part and denied in part, and this case is remanded back to the Social Security Administration (the "Administration") for further proceedings consistent with this opinion.

I. BACKGROUND

A. Procedural History

Claimant filed an application for supplemental security income ("S.S.I.") benefits on August 17, 2005. (R. 105-09.) That application states that claimant has been disabled since the date of his birth, August 26, 1999. (R. 106.) An undated disability report reiterates the August 26, 1999 start date of claimant's disability, and states that his disability consists of a bone cyst in his left femur. (R. 124.) The record reflects that claimant fractured his left femur in June 2005. (R. 183-85.) The Administration denied claimant's request for benefits on October 7, 2005. (R. 65-68.) Claimant filed a timely request for reconsideration, which was denied administratively on February 10, 2006.

(R. 69, 139-45, 70-72.) Montrell then filed a timely request for a hearing. (R. 75.) On January 16, 2008, claimant appeared with counsel for a hearing before ALJ Janice M. Bruning ("ALJ Bruning"). (R. 28-62.) ALJ Bruning issued a decision denying claimant's request for S.S.I. benefits on May 9, 2008. (R. 13-24.) The Appeals Council denied claimant's request for review on October 1, 2008, and ALJ Bruning's decision became the final decision of the Commissioner. (R. 1-3); Hopgood v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009); Estok v. Apfel, 152 F.3d 636, 637 (7th Cir. 1998); 20 C.F.R. § 416.1481. Claimant subsequently filed this matter in the District Court.

B. Medical History

On June 27, 2005, Montrell received treatment from the MacNeal Hospital emergency department after falling "from a porch to the ground." (R. 184.) According to the attending physician, Montrell's fall resulted in a pathologic fracture -- when the bone breaks in an area that is weakened by another disease process -- of his left femur.

(R. 184, 185.) The attending also noted that claimant's mother reported that she had "noticed for several months that [Montrell] seem[ed] to be limping on his left side." (R. 184.) On that same date, Montrell was transferred to Loyola University Medical Center.

(R. 185.) His treating physicians at Loyola diagnosed a pathologic subtrochanteric femur fracture, performed a "90/90 traction," and applied a hip SPICA cast. (R. 232.) They also placed an external fixation pin in his fractured hip. (R. 234-35.)

Dr. Deirdre Ryan ("Dr. Ryan") removed the pin and SPICA cast on July 21, 2005.

(R. 224.) At that time, Dr. Ryan described Montrell as "a 5-year-old who was admitted approximately three weeks ago with a pathologic fracture through the left proximal femur through what characteristically appeared on the radiograph as a unicameral cyst."

(R. 225.) The following day, she discharged Montrell with directions to maintain non-weight-bearing status and use over-the-counter Motrin and "home meds" as needed for pain. (R. 209, 232.)

Montrell met with Dr. Ryan for a follow-up appointment on August 15, 2005. (R. 222.) After reviewing x-rays of Montrell's left hip, Dr. Ryan found "progressive healing at his fracture site and maintenance of his alignment." (Id.) She scheduled Montrell for an aspiration to confirm that "this is a cyst." (Id.) If Montrell did, in fact, have a unicameral bone cyst, Dr. Ryan planned to "proceed with an injection procedure where we aspirate bone marrow, combine it with demineralized bone matrix and inject it." (Id.) The doctor informed Montrell and his mother of the risks of the procedure, including "infection, blood loss, nerve damage, arterial damage, refracture, [and] need for further injections." (Id.) Dr. Ryan also presented alternative treatment options, including placing hardware. (Id.) Claimant's mother elected to proceed with the injections, "understanding that [Montrell] may require multiple injections and she is going to have to limit his activity for months to years depending on how he heals." (Id.)

On August 22, 2005, Montrell underwent an intraoperative fluoroscopy exam. (R. 217.) According to the reviewing radiologist, the fluoroscopic views of Montrell's left hip "show cystic lesion intertrochanteric region left proximal femur with progressive placement of hardware and radiopaque material within the cyst." (Id.) The radiologist further opined that x-rays of claimant's pelvis revealed a "well formed acetabula bilaterally," a "healing subtrochanteric fracture of the left proximal femur," and a "normal" right hip. (R. 216.)

Montrell saw Dr. Ryan for follow-up care on September 19, 2005, "one month after his aspiration and injection of his [unicameral bone cyst]." (R. 261.) The doctor noted that Montrell had maintained non-weightbearing status since his surgery and had "no complaints." (Id.) Upon examination, Dr. Ryan observed that Montrell had "no pain with internal or external rotation" or "with flexion or extension." (Id.) Dr. Ryan opined that Montrell was "doing well" and elected to "advance him to full weightbearing with physical therapy." (Id.) Dr. Ryan informed claimant's mother that he should not be "running, jumping, climbing, bicycl[ing]," or engage in any activity "where he could twist his leg and fall as he is at risk for refracture." (Id.)

In connection with Montrell's claim for S.S.I. benefits, Dr. Virgilio Pilapil, a state agency reviewing physician, ("Dr. Pilapil"), reviewed claimant's medical records and completed a childhood disability evaluation form on September 29, 2005. (R. 237-42.) That form required Dr. Pilapil to evaluate claimant's functioning in six domains and opine as to Montrell's functional limitations, if any. (R. 239-40.) Dr. Pilapil found that claimant had "no limitations" in the first through third domains. (R. 239.) Dr. Pilapil opined that claimant had "less than marked" limitations in the fourth domain, moving about and manipulating objects. (R. 240.) He indicated that claimant had "limited mobility due to [fracture] of left femur." (Id.) Dr. Pilapil also found claimant had less than marked limitations in the fifth domain, caring for yourself, due to the fracture. (Id.) Finally, Dr. Pilapil determined that claimant had marked limitations in the sixth domain, health and physical well-being, as a result of his June 2005 fracture. (Id.) He noted that "[r]ecovery time with limited activity is projected to be months to years depending on how [claimant] heals." (Id.) Dr. Pilapil indicated that claimant "does not meet the duration requirement," explaining that the "severity of [his] condition [is] not expected to last 12 months." (R. 237, 242.) On February 9, 2006, an agency consultant, Gotanco Reynaldo, confirmed Dr. Pilapil's findings. (R. 264-69.)

Montrell and his mother returned to Dr. Ryan on October 10, 2005. (R. 250-51.) Dr. Ryan noted that claimant had "no complaints." (R. 251.) During the examination, Montrell had "excellent range of motion" and "full flexion and extension of his hip." (R. 250, 251.) Dr. Ryan again noted that Montrell was "doing well" and cleared him to return to school. (R. 250.) However, she ordered Montrell to "refrain from sporting activities, athletics, running, recess, and playing on the playground" as these activities could result in refracture. (R. 250, 251.) Two months later, on December 16, 2005, Montrell returned for a follow-up and again reported "no pain." (R. 249.) Dr. Ryan found "full flexion and extension of his hip" during examination. (Id.) She observed that Montrell's cyst had enlarged and ordered another injection. (R. 249-50.) The doctor also recommended that Montrell maintain the aforementioned activity restrictions. (Id.)

Montrell underwent his second "aspiration cystogram, irrigation and injection of unicameral bone cyst of the left proximal femur" on January 4, 2006. (R. 287-89.) Dr. Ryan's post-operative diagnosis was bone cyst left proximal femur. (R. 289.) She prescribed Acetaminophen-Codeine for discomfort and Ibuprofen. (R. 254, 271.)

Montrell returned to Dr. Ryan on January 9, 2006. (R. 318-19.) Montrell had no complaints and his mother reported "that he has been doing well." (R. 318.) The doctor found "no pain with range of motion of his leg." (R. 319.) Dr. Ryan again instructed "no running, no jumping, no climbing as he could refracture." (R. 319.) On March 6, 2006, Montrell appeared for follow-up care and again denied any pain. (Id.) Upon exam, Dr. Ryan observed that claimant had "full flexion and extension of his hip with full internal and external rotation without any pain." (Id.) Dr. Ryan gave Montrell a note to "continue to keep him out of gym as he is at risk for fracture." (Id.)

On August 4, 2006, Dr. Ryan reviewed x-rays taken that day and observed a "small area" that was "starting to look a little cystic again." (R. 317.) She recommend additional x-rays in two months. (Id.) Montrell returned on October 2, 2006. (R. 316-17.) Dr. Ryan observed that on "repeat x-rays" Montrell was "demonstrating ... a slight expansion in his cyst." (R. 316.) Her exam revealed that Montrell was "nontender to palpation" and had "no pain with range of motion." (Id.) She opined that claimant "would benefit from a repeat injection." (Id.) Because she was "leaving town," Dr. Ryan referred Montrell for further treatment to her partner, Dr. Timothy Rapp ("Dr. Rapp"), who "specializes in bone tumors and bone cyst[s]." (R. 317.)

Additional x-rays of Montrell's pelvis were taken on October 2, 2006. (R. 325.)

According to the reviewing radiologist, when compared to the August 4, 2006 films, the x-rays revealed "no change in the unicameral bone cyst." (Id.) Additional x-rays of claimant's left hip taken October 17, 2006 revealed "a lytic expansile lesion in the proximal shaft of the left femur extending into the femoral neck consistent with a unicameral bone cyst." (R. 324.) The ...


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