Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jeffrey J. Petrey v. Michael J. Astrue

December 14, 2010

JEFFREY J. PETREY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Judge George W. Lindberg

MEMORANDUM OPINION AND ORDER

Plaintiff Jeffrey J. Petrey seeks judicial review of the decision by defendant Commissioner of the Social Security Administration ("SSA"), denying plaintiff's application for Disability Insurance Benefits ("DIB"). Plaintiff and defendant have filed cross-motions for summary judgment. For the reasons stated below, plaintiff's motion is granted, and defendant's motion is denied.

I. Procedural History

Plaintiff applied for DIB on November 2, 2004, claiming that he had been disabled since June 18, 1998 due to back pain, leg pain, and anxiety attacks. The SSA denied the claim in 2005, and the SSA Appeals Council denied review. In 2007, on judicial review, Magistrate Judge Schenkier remanded the case for further proceedings. On remand, a different ALJ held a hearing, and denied plaintiff's claim on March 11, 2009. On November 18, 2009, the SSA Appeals Council declined to assume jurisdiction. Plaintiff filed the instant complaint for judicial review on January 15, 2010.

II. Prior Proceedings

A. Evidence Presented Prior to Remand

Plaintiff injured his back at work in 1994. (R. 271-72) In September 1995, plaintiff's employer's worker's compensation insurer sent plaintiff to Dr. Charles Slack, an orthopedic surgeon. (R. 156, 272) In a November 19, 1999 summary of plaintiff's medical history, Dr. Slack reported that an April 1997 MRI (magnetic resonance imaging) revealed a herniated disc at the L3-4 level, with an extruded fragment. (R. 156) Plaintiff had back surgery -- a right L3-4 hemi-laminectomy with excision of a herniated disc -- on May 2, 1997. (R. 156)

Plaintiff returned to work following his surgery, but continued to report to Dr. Slack that he was experiencing back pain. (R. 211) Dr. Slack concluded that plaintiff had a recurrent disc herniation, and treated him with epidural steroid injections. (R. 211) On March 26, 1998, Dr. Slack requested that plaintiff complete two weeks of physical therapy to decrease his pain, during which time he would be off work under a temporary, total disability. (R. 209) After two weeks of physical therapy, however, plaintiff experienced increased pain. (R. 207) On April 27, 1998, Dr. Slack opined that plaintiff should be limited to sedentary work requiring no lifting, repetitive bending, or twisting. (R. 207-08) Dr. Slack also recommended that plaintiff be allowed to change his position frequently, and that plaintiff initially limit his work hours to four hours per day. (R. 208)

Plaintiff returned to work on a limited basis on May 7, 1998. (R. 187) After working for a few days, he missed several days of work due to increased pain. (R. 187) He then attempted to work four days a week at a sedentary position, but continued to have difficulty. (R. 184, 187) A May 19, 1998 MRI indicated that plaintiff had a small disc protrusion. (R. 192) On June 29, 1998, Dr. Slack recommended that plaintiff come off work on temporary disability. (R. 184) Although a July 27, 1998 electromyogram (EMG) was normal, on August 3, 1998 Dr. Slack recommended that plaintiff remain temporarily disabled due to the interference of pain with plaintiff's daily function. (R. 181) Dr. Slack also recommended that plaintiff see a pain management program doctor. (R. 181)

Dr. Slack completed reports on plaintiff's residual functional capacity on August 23, 2004 and February 3, 2005. (R. 220-22, 107-11) In the 2004 report, Dr. Slack opined that plaintiff could not lift more than ten pounds, and that he had more than fifty percent reduced capacity for walking, bending, standing, stooping, sitting, turning, and climbing. (R. 222) In the 2005 report, Dr. Slack again opined that plaintiff would be incapable of lifting more than ten pounds, and that he would never be able to twist, stoop, crouch, squat, or climb ladders. (R. 109-10) He also opined that due to pain, plaintiff would need to change positions after only fifteen minutes of sitting or standing, and could sit or stand/walk for less than a total of two hours out of an eight-hour work day. (R. 108-09) In addition, Dr. Slack opined that plaintiff would be likely to miss more than four days of work each month due to pain. (R. 110) Finally, Dr. Slack opined that plaintiff was not a malingerer, and that his impairments were reasonably consistent with his symptoms and functional limitations. (R. 108)

Agency medical consultant Kim Young-Ja prepared a physical residual functional capacity assessment on December 22, 2004, based on a review of plaintiff's medical records. (R. 223-230) This consultant opined that plaintiff could occasionally lift and/or carry ten pounds, that he could stand and/or walk at least two hours in an eight-hour workday, and push and pull without limitation. (R. 224) The consultant opined, without explanation, that Dr. Slack's conclusion that plaintiff was unable to work due to pain was "not supported by the evidence in file." (R. 229)

Medical expert Walter Miller testified at the first hearing that the May 1998 MRI showed disc protrusion, but that there was no evidence of herniation of the disc on the nerve root. (R. 276). Dr. Miller noted a lack of objective evidence (such as further MRI testing). (R. 278) Dr. Miller also noted a lack of evidence of muscle weakness or atrophy. (R. 280) Dr. Miller opined that plaintiff did not meet a listing, based on the objective evidence. (R. 281) He further opined that plaintiff probably could not do his previous work, but that he "does not have serious problems that prevent him from standing and moving and doing light [work]." (R. 282)

A vocational expert testified that a wide variety of light, unskilled jobs would be available to an individual who could lift and carry up to twenty pounds occasionally and up to ten pounds frequently; sit, stand, or walk six out of eight hours; and who had no restrictions on pushing and pulling. (R. 287) The vocational expert testified that there would also be a significant number of sedentary jobs available for such an individual. (R. 290-91) Finally, the vocational expert testified that there would be no jobs available if such an individual missed more than four days of work per month. (R. 288-89)

B. Denial of Benefits on December 22, 2005

Following the first hearing, the ALJ concluded that plaintiff could perform a limited range of light work, and therefore that he is not disabled. (R. 27-28) The ALJ found Dr. Slack's opinions to be conclusory, and observed that they "appear to be based more on the claimant's subjective assertions and complaints rather than on the objective signs and findings." (R. 24) The ALJ noted that there was no evidence to confirm radiculopathy (nerve root disease), and no evidence of atrophy or loss of strength. (R. 24) In addition, the ALJ found that Dr. Slack's opinions were not consistent with other evidence in the record. (R. 24) Finally, although plaintiff did not testify at the hearing (he merely confirmed a non-attorney representative's summary of the facts), the ALJ found that plaintiff's allegations regarding the extent of his pain and functional limitations were not credible. (R. 25)

C. Magistrate Judge Schenkier's Remand Decision

In the first action for judicial review, Magistrate Judge Schenkier remanded the case for further proceedings on several grounds. First, Judge Schenkier concluded that the ALJ had not provided "adequate justification for failing to give Dr. Slack's opinions controlling weight, or indeed any weight." (R. 359) In addition, Judge Schenkier concluded that the ALJ had failed to provide a logical explanation for rejecting plaintiff's allegation of mental impairment. (R. 360) Judge Schenkier also found that remand was required because the ALJ had offered no explanation for disregarding evidence that plaintiff had difficulty working more than four ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.