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Peter Kadelak v. Michael J. Astrue

July 26, 2011

PETER KADELAK PLAINTIFF,
v.
MICHAEL J. ASTRUE, MAGISTRATE JUDGE MORTON DENLOW COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Morton Denlow United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Claimant Peter Kadelak ("Claimant") brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Defendant Michael J. Astrue, Commissioner of Social Security ("Defendant" or "Commissioner"), denying Claimant's application for Disability Insurance Benefits ("DIB"). In response, the Defendant filed a motion to affirm the Commissioner's decision. Claimant raises the following issues in support of his motion for summary judgment: (1) whether the ALJ improperly discounted Claimant's allegations of knee pain without ordering further medical tests; (2) whether the ALJ improperly considered Claimant's pension in the credibility finding; (3) whether the ALJ improperly considered Claimant's lack of treatment in the credibility finding;(4) whether the ALJ failed to consider Claimant's obesity in combination with his other impairments; and (5) whether the ALJ failed to consider the entire record. For the following reasons, the Court denies Claimant's motion for summary judgment and grants Defendant's motion to affirm the Commissioner's decision.

I. BACKGROUND FACTS

A. Procedural History

Claimant initially filed for DIB on August 9, 2007, alleging a disability onset date of January 5, 2007. R. 109--16. The Social Security Administration ("SSA") denied his application on November 1, 2007. R. 60--62. Claimant then filed a request for reconsideration, which the SSA denied on January 25, 2008. R. 65--69. Thereafter, Claimant requested a hearing before an ALJ. R. 71--72.

On July 27, 2009, Administrative Law Judge Mona Ahmed (the "ALJ") presided over a hearing at which Claimant appeared with his attorney, John Horn. R. 23--57. Claimant and Lee Knutson, a vocational expert, testified at the hearing. No medical expert testified. On November 23, 2009, the ALJ issued a decision finding that Claimant was not disabled under the Social Security Act. R. 8--19. Specifically, the ALJ found that Claimant had "the residual functional capacity to perform medium work exertionally" and that "there are jobs that exist in significant numbers in the national economy that the claimant can perform." R. 14,18.

Claimant then filed for a review of the ALJ's decision to the Appeals Council. R. 6. On July 27, 2010, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1--4. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony-July 27, 2009

1. Peter Kadelak-Claimant

At the time of the hearing, Claimant was 62 years old, married, and living with his wife and son. R. 28--29. Claimant is a high school graduate and a Vietnam War veteran.

R. 30. His most recent gainful employment ended in January 2007, when he stopped working as a hotel maintenance worker. R. 31. Claimant often performed repairs on ceilings, requiring him to carry and climb ladders. R. 32. He lifted more than 100 pounds occasionally and twenty-five pounds frequently, and was on his feet for the entire workday.

R. 44--46. Claimant took early retirement because of back and knee pain. R. 31. Claimant receives a pension. R. 30.

Claimant testified that he could not work mainly because of back pain. R. 45. He stated that his back hurts when he stands for more than two hours and sometimes when he sits or lays down. R. 34, 44. His thighs also become numb from the back pain. R. 39. He estimated that he can lift fifty pounds once or twice and five to ten pounds repeatedly, but his back "starts bothering [him] real bad" when he tries to lift more. R. 32--33. On a scale of one to ten, Claimant rated his daily back pain as a four. R. 44. When the pain flares up, the pain rates as an eight and lasts for two days. Id. Claimant saw a chiropractor and family doctor about his back problem. R. 33. His family doctor recommended surgery but Claimant refused because of previous problems with anesthesia. Id. Claimant tries to exercise every day but when he has back pain, he exercises once or twice a week. R. 33--34.

Claimant also testified that knee pain prevented him from working. R. 31, 45. Claimant rated his knee pain as a four on a scale of one to ten, possibly reaching six or seven if he "walk[s] a lot or climb[s] stairs." R. 45. There are no recent x-rays of his knees. R. 41. Before the hearing, Claimant had requested that the ALJ order x-rays of Claimant's right knee if social security disability benefits were not granted. R. 202.

Claimant was diagnosed with diverticulosis in 2003 or 2004. R. 35. He testified that during an attack he may go to the restroom four or five times a day. R. 39. The attacks last a week to a week and a half and occur one to two times per month. R. 40. Claimant fell behind in work during the attacks. Id.

Claimant testified about various joint problems, including trigger finger in his left hand, carpal tunnel syndrome, and shoulder problems. R. 35--36, 42. Claimant explained that the trigger finger symptoms act up at night and in the morning. R. 45--46. The doctor administers cortisone injections which eliminate the symptoms, but Claimant can only receive three shots per year. R. 35--36, 46. When the trigger finger acts up, Claimant is unable to use his hand for the day. R. 36. His family doctor diagnosed him with carpal tunnel syndrome. R. 35--36. Claimant stated that his hands get numb and painful at night, preventing him from sleeping. R. 36. When he performs small tasks, like peeling a potato, his carpal tunnel acts up for four to five days. Id.

Claimant also listed a number of other medical problems. He has a history of kidney stones. R. 36--38. Since January 5, 2007, he passed three stones and last passed one-and-a-half years ago. R. 37, 39. Claimant gets migraines once or twice a month . R. 41. The migraines last for thirty to forty-five minutes and lead Claimant to lose half of his field of vision. R. 41--42. Claimant had a blood clot in his right leg and triple hernia, but both of these conditions were treated. R. 42--43. Claimant continues to wear a compression hose when he drives, as recommended by his doctor. R. 43. The doctor diagnosed Claimant with diabetes in March 2009. R. 35. As treatment, Claimant takes a pill daily and checks his blood three times per week. Id.

As for his daily activities, Claimant has a driver's license, owns a car, and drives once or twice a day. R. 29--30. He has driven up to 200 miles round trip in the last year and drove thirty minutes to the hearing. R. 30. Claimant spends the day watching TV. R. 34. He does not cook, do many chores, or make repairs around the house. R. 32, 34. Instead, Claimant's wife does the chores and his son helps with household repairs. R. 32, 34. Claimant had undertaken a home repair project in which he mainly supervised his son in laying a hardwood floor. R. 53. He wore knee pads to take measurements but did not cut or carry the wood.

R. 54. At one point, Claimant and his wife cared for their son's girlfriend's five-year-old daughter for two weeks. R. 46--48. Claimant mainly watched TV with the child. R. 55.

2. Mr. Lee Knutson-Vocational Expert ("VE")

The Vocational Expert, Lee Knutson, described Claimant's past relevant work as a maintenance engineer, which he categorized as a skilled position requiring a 'medium' level of exertion, though Claimant performed it at a 'heavy' level.*fn1 R. 49. There were no jobs available at light or sedentary levels that contain transferable skills. Id. The ALJ asked whether someone with the age, education, and work experience of the Claimant could continue working as a maintenance engineer if limited to medium work; standing and walking for six hours with regular breaks; never climbing ladders, ropes or scaffolds; and only occasional kneeling, crouching, crawling, and stooping. R. 50.The VE responded that he could not. Id.

The ALJ asked the VE if there were any other occupations such a hypothetical person could do. Id. The VE stated that the hypothetical person could work as a bagger, a cleaner, or a hand packer. Id. If Claimant were limited to lifting fifteen pounds occasionally the packer job would be eliminated. R. 50--51. The VE also identified four limitations that would each preclude the hypothetical person from any of the three jobs he identified: lifting no more than ten pounds frequently, standing no more than two hours per day, remaining productive less than 85% of the time, or missing two or more days per month. R. 51--52.

C. Medical Evidence

1. Kidney Stones

Claimant sought treatment for kidney stones in 2006. R. 212. Claimant's CT scan in August 2006 confirmed that he had bilateral renal stones, but the "tiny stones" did not appear in Claimant's kidney ultrasound. R. 217--18. In March 2007, Claimant had another CT scan which confirmed multiple bilateral renal stones and a cyst on his right kidney. R. 216, 238. There was no evidence of hydronephrosis,*fn2 meaning there was no loss of function due to obstruction of free flow from the kidney. Id. A March 24, 2009 report from Claimant's primary doctor, Dr. Bernice Salazar, states that his kidney stone condition was asymptomatic. R. 330. Claimant's April 2009 CT scan again showed the presence of renal stones but no hydronephrosis. R. 274, 334. As a result of Claimant's "abnormal CT" and history of renal stones and cyst, Dr. Salazar referred Claimant to a urology clinic in May 2009. R. 288. Claimant cancelled his appointment. R. 288--89.

2. Lower Back Pain

Claimant sought treatment from a chiropractor for back pain. R. 259--60. He visited her about once every two months from September 2006 to December 2007. R. 225--26, 260. Claimant's family physician ...


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