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Kacy Bush, On Behalf of J.B., A Minor, and K.B., A Minor v. Michael J. Astrue

October 25, 2011

KACY BUSH, ON BEHALF OF J.B., A MINOR, AND K.B., A MINOR, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

Tuesday, 25 October, 2011 04:04:27 PM Clerk, U.S. District Court, ILCD

ORDER & OPINION

This matter is before the Court on Plaintiff's "Brief in Support of Claimant," which the Court construes as Plaintiff's Motion for Summary Judgment, and Defendant's Motion for Summary Affirmance. (Docs. 10 & 13). For the reasons stated below, Plaintiff's Motion for Summary Judgment is granted in part and denied in part, and Defendant's Motion for Summary Affirmance is granted in part and denied in part.

PROCEDURAL HISTORY

Plaintiff's decedent, John Bush, alleged that he was disabled by injuries to his right knee, left shin, and left ankle in a December 23, 2006 car accident.*fn1 (Tr. 702, 714). He claimed disability benefits on January 4, 2007, with an onset date of December 23, 2006. (Tr. 14). The Social Security Administration denied his application initially and on appeal. (Tr. 24). Administrative Law Judge Joseph Warzycki held a hearing in the matter on March 2, 2009, and found that Bush was not disabled. (Tr. 697-728, 14-21). Following a denial of Bush's request for review by the Appeals Council on September 23, 2010, Plaintiff filed the instant appeal pursuant to 42 U.S.C. § 405(g) on November 19, 2010. (Tr. 4-6; Doc. 1).

RELEVANT MEDICAL HISTORY

Bush injured his head, right arm, and right leg in a car accident on December 23, 2006, and remained in the hospital until January 5, 2007. (Tr. 116). Dr. Ronald Wheeler, an orthopedic surgeon, performed several surgeries to repair his arm and leg while he was in the hospital initially, and remained his treating physician. (Tr. 117-212). On January 18, 2007, Bush reported to Dr. Wheeler that he was increasing his activity level, and was using a walker and a wheelchair. (Tr. 211). By February 1, 2007, he was using a forearm walker, and Dr. Wheeler had him begin an occupational therapy program. (Tr. 212, 227-29). On April 12, 2007, Bush's range of motion in his right arm was quite good, though on May 24, 2007, Dr. Wheeler noted that his right knee had a restricted range of motion. (Tr. 216-17).

On May 14, 2007, Dr. Ernst Bone, a state agency consultant, completed a Physical Residual Functional Capacity Assessment of Bush based on his medical records. (Tr. 316-23). Dr. Bone found that Bush could occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, stand and walk a total of six hours a day, sit about six hours a day, and push or pull limited only to the extent described in his ability to lift and carry. (Tr. 317). He found that there were no established postural, manipulative, visual, communicative, or environmental limitations. (Tr. 318-20). Reviewing Bush's medical records for the first few months after the accident, Dr. Bone determined that Bush would be able to work by December 23, 2007, within a year of the accident. (Tr. 323). On June 2, 2007, Dr. Wheeler, apparently responding to the denial of benefits based on Dr. Bone's assessment, wrote a letter challenging the determination that Bush would be able to engage in sedentary work by December 23, 2007. (Tr. 218-19). Dr. Towfig Arjmand, another state agency consultant, reviewed Bush's records on August 9, 2007, and confirmed Dr. Bone's May 14, 2007 assessment, stating that, in spite of Dr. Wheeler's June letter, the "medical evidence does not show [that Bush will be disabled longer than 12 months] at this time." (Tr. 324-26).

In July 2007, Bush had a "marked improvement" in his ankle's range of motion, and reported only "some discomfort on occasion in the leg;" his knee's range of motion was still problematic (Tr. 350, 352). Later that month, Dr. Wheeler reported that Bush's range of motion in his knee and ankle were improving. (Tr. 348). At that time, Bush was exercising and had some pain in the morning and afternoon, and Dr. Wheeler recommended that he progress to full weight bearing on his right leg. (Tr. 348). In August 2007, Bush was still exercising and increasing his activities, and was in less discomfort. (Tr. 347). Bush's October 2007 visit with Dr. Wheeler found him "doing fairly well," with "no particular discomfort in the forearm;" Dr. Wheeler again recommended that he bear full weight on his right leg. (Tr. 346, 374). In December 2007, Bush was again "doing fairly well" and "increasing his activities," and Dr. Wheeler made arrangements for what was expected to be Bush's last leg surgery other than a possible arthroscopy and takedown of scar tissue on the knee. (Tr. 344, 372).

After a January 18, 2008 surgery, Bush saw Dr. Wheeler on January 28, and was given a note to return to a modified work program. (Tr. 669, 340). In March 2008, Bush was "doing fairly well." (Tr. 339). In April, Dr. Wheeler noted that Bush was doing fairly well, had been increasing activities, and had not yet returned to work; Dr. Wheeler recommended that he intensify his activities and return to work in a "nonwork foreman-type position if available." (Tr. 338). In July 2008, though, Bush's range of motion in his knee had deteriorated, and he had some pain in the knee. (Tr. 337). Bush was admitted for arthroscopy to address the buildup of scar tissue that was restricting his knee's range of motion in late August 2008. (Tr. 335-36, 617-28). On September 3, 2008, Bush was taken by ambulance to the hospital with "intolerable post operative knee pain," but was doing much better by September 8. (Tr. 396, 332). Bush reported feeling "much better" in October, though he had no particular improvement in motion. (Tr. 329). Dr. Wheeler noted that he was walking without crutches and recommended that he continue to do so. (Tr. 329). By December 2008, Bush's right knee's mobility and strength were improved, and in February 2009 he was "not too bad as far as pain is concerned," with "more agility, more strength." (Tr. 327-28).

On February 22, 2009, Dr. Wheeler completed an assessment of Bush's ability to work at the request of the Social Security Administration. (Tr. 382-84). He opined that Bush, when engaging in sedentary work, would need several unscheduled rest periods or "any change in position of [right] knee even more frequently," and would need to have the option of alternating between sitting and standing at will. (Tr. 383-84). Dr. Wheeler felt that Bush would have frequent and/or unpredictable absences from work due to his symptoms. (Tr. 383). He estimated that Bush would be able to lift, push, or pull ten pounds or less, and could stand or walk between zero and two hours a day. (Tr. 384). Bush "occasionally" used a cane or other assistive device to walk, according to Dr. Wheeler. (Tr. 384). He also reported that Bush would have no problem maintaining sustained attention and concentration, and that he could work with his arms constantly. (Tr. 383).

HEARING TESTIMONY

Bush, represented by his (now Plaintiff's) attorney, appeared via videoconference at a hearing on March 2, 2009, and testified as to his alleged disability before Administrative Law Judge Joseph Warzycki ("ALJ"). (Tr. 695-728). Vocational expert Dr. Magroski also appeared and gave testimony. (Tr. 723-27).

Bush testified that he lived in a one and a half story house, which required climbing three steps to enter. (Tr. 699-700). He lived there alone, except for when his two young daughters visited him every other weekend. (Tr. 700). Bush only drove to the store or to therapy. (Tr. 700). He was currently getting disability payments through his union, as well as food stamps, and was on Medicaid; he had collected unemployment benefits for six months, two years previously. (Tr. 701). Bush had graduated from high school, and had completed a three-year iron worker apprenticeship. (Tr. 702). He had worked for ten years as an iron worker, doing steel erection work. (Tr. 703). He had to work at heights in his previous work, and welded. (Tr. 704). Bush's previous work was very heavy work: he lifted 50-70 pounds on occasion. (Tr. 704). In the early 1990s, Bush worked as a laborer and concrete finisher. (Tr. 704-05).

Bush had last worked on December 22, 2006, the day before the car accident. (Tr. 702). He had not attempted to work since that time, and had not applied to work anywhere, as he felt that he could not work. (Tr. 703). Bush testified that he had a lot of pain in his leg when he works for any length of time, and that he then had to elevate it about six inches while sitting or lying down. (Tr. 703).

Following the car accident, Bush was in the hospital for two weeks, then had a cast on his arm and a brace on his leg for at least six or seven months. (Tr. 703). Since then, he had had several surgeries to remove scar tissue and to gradually remove hardware, though he indicated that the injury "seems to be healing up," and that his doctor had not wanted to schedule another surgery at his most recent visit. (Tr. 713). However, "nothing has really healed up completely yet." (Tr. 714). Bush had limited mobility in his right arm, but could reach out and reach above his head. (Tr. 714). His hands were unaffected, though he sometimes had pain turning his wrist. (Tr. 714-15). In addition to ...


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