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Patrick Henry O'reilly v. Michael J. Astrue

March 29, 2012

PATRICK HENRY O'REILLY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER

Plaintiff Patrick Henry O'Reilly seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. §§ 416, 423(d). The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed cross-motions for summary judgment. After careful review of the record, the Court now grants Defendant's motion and denies Plaintiff's motion.

PROCEDURAL HISTORY

Plaintiff applied for DIB on January 12, 2007, alleging that he became disabled on October 15, 2006 from three left hip replacement surgeries. (R. 135, 140). The Social Security Administration ("SSA") denied the application initially on March 28, 2007, and again on reconsideration on May 24, 2007. (R. 74-78, 81-84). Plaintiff filed a timely request for a hearing and appeared before Administrative Law Judge Joseph P. Donovan, Sr. (the "ALJ") on October 15, 2008. The ALJ heard testimony from Plaintiff, who was accompanied by a non-attorney representative, as well as from medical expert Ashok G. Jilhewar (the "ME") and vocational expert Pamela Tucker (the "VE"). Shortly thereafter, on March 25, 2009, the ALJ found that Plaintiff was disabled during the closed period of October 15, 2006 through August 27, 2008. The ALJ further determined that as of August 28, 2008, Plaintiff's condition medically improved to the point where he is now capable of performing a significant number of light, unskilled jobs available in the regional economy.

(R. 57-67). The Appeals Council denied Plaintiff's request for review on January 28, 2011, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 1-3).

In support of his request for reversal or remand, Plaintiff argues that the ALJ (1) erred in finding medical improvement as of August 28, 2008; (2) improperly discounted his complaints of pain; (3) made a flawed RFC determination; and (4) erred in failing to order a consultative examination. As discussed below, the Court finds no merit to any of these challenges.

FACTUAL BACKGROUND

Plaintiff was born on January 6, 1959, and was 50 years old at the time of the ALJ's decision. (R. 17, 135). He has a GED plus additional training as a welder, and his past work includes pipefitter and truck driver. (R. 17, 144). Plaintiff stopped working on October 15, 2006 due to pain and discomfort in his left hip. (R. 140).

A. Medical History

The record does not contain any medical treatment notes prior to February 2007, but it appears that Plaintiff had a left bipolar hip replacement in 1982, followed by a revision in 1984. Dr. Aaron G. Rosenberg of Midwest Orthopaedics performed a second revision in or around 1990. (R. 173, 195, 206). Plaintiff also had a right wrist fusion in 1997 at St. Luke's Presbyterian. (R. 174). At some point after October 15, 2006, Plaintiff started seeing Dr. Rosenberg again due to a recurrence of his hip pain, but there are no records reflecting those visits.

In response to Plaintiff's January 12, 2007 application for benefits, Afiz Taiwo, M.D., completed an Internal Consultative Examination of Plaintiff for the Bureau of Disability Determination Services ("DDS") on February 24, 2007. (R. 173-76). Plaintiff complained of constant, aching pain at a level of 7 out of 10 in his left hip, which became intermittent and sharp with walking. (R. 173). He told Dr. Taiwo that he could walk for one block, stand for 20 minutes, and sit for half an hour, but he reported having difficulty bending, vacuuming, and standing for prolonged periods of time. (R. 174). On examination, Dr. Taiwo found that Plaintiff's left leg was longer than his right by two inches such that he walked with a slight limp. He also exhibited reduced range of motion in his left hip, with flexion of 60 degrees (normal being 125 degrees) and abduction of 30 degrees (normal being 45 degrees). (R. 175). At the same time, Plaintiff's gait was "non-antalgic," he could walk more than 50 feet without any assistive devices, he had no trouble getting on and off the exam table, there was no palpable tenderness in his hip, and his straight leg raise and Romberg*fn1 tests were both negative. Dr. Taiwo diagnosed left hip pain and a history of multiple left hip replacements. (Id.).

The following month, on March 19, 2007, Ernst Bone, M.D., performed a Physical Residual Functional Capacity Assessment ("PRFC") of Plaintiff for DDS. (R. 178-85). Dr. Bone concluded that Plaintiff could: occasionally lift 20 pounds; frequently lift 10 pounds; sit, stand and/or walk for about 6 hours in an 8-hour workday; push and/or pull without limitation; occasionally climb ramps, stairs, ladders, ropes and scaffolds; and frequently balance, stoop, kneel, crouch and crawl. (R. 179-80). In support of this assessment, Dr. Bone noted that Plaintiff could walk without an assistive device, had negative Romberg and straight leg raise tests, exhibited flexion of 60 degrees and abduction of 30 degrees in his left hip, had full range of motion in all other joints, and had motor strength of 5 out of 5. Dr. Bone concluded that Plaintiff "appears capable of performing the level of work activity described in this form." (R. 185).

1. Back Treatment in 2007

On April 2, 2007, Plaintiff had a bone scan at the Riverside Medical Center. The scan showed abnormal findings in the left hip and lumbar spine, and Dr. Rosenberg referred Plaintiff to Midwest Orthopaedics' Spine and Back Center to determine whether there was "lumbar contribution to his pain." (R. 190, 195). April Fetzer, D.O., of the Spine and Back Center examined Plaintiff on April 19, 2007. His lumbar spine was flat with "significantly decreased curvature," and he experienced pain on extension and on "facet-loading maneuvers." (R. 195). Dr. Fetzer assessed "[a]xial low back pain, likely facet mediated, with possible bilateral radicular symptoms versus spinal stenosis." (R. 196). She recommended physical therapy and ordered an MRI and lumbar X-rays "to evaluate nerve root pathology." (Id.).

Later that same day Dr. Fetzer reviewed Plaintiff's bone scan and noted that it revealed "increased uptake at the left proximal femoral shaft likely suggestive of prosthesis loosening," as well as "increased uptake at L2 and L4 in the vertebral bodies." (R. 197).

She deferred the issue of prosthesis loosening to Dr. Rosenberg, and indicated that she would "further evaluate [Plaintiff's] lumbar areas" following his diagnostic testing. (Id.). In that regard, Plaintiff appeared for a scheduled MRI of the lower back on May 7, 2007. The test showed degenerative disc disease at L2-L3 with no significant protrusion, and conjoined nerve roots exiting on the right at L5-S1. (R. 188). Approximately two weeks later, on May 23, 2007, Francis Vincent, M.D., affirmed Dr. Bone's assessment that Plaintiff had the capacity to do light work. (R. 191-93).

At a follow-up visit with Dr. Fetzer on May 29, 2007, Plaintiff reported that he had not started physical therapy due to "monetary issues." He continued to complain of axial low back pain bilaterally "with characteristics of numbness, tingling and burning," but his gait remained non-antalgic and he had no motor or sensory deficits from L4 through S1 bilaterally. (R. 200). Dr. Fetzer discussed the MRI results with Plaintiff, explaining that the test revealed "mild degenerative disk change at L2-3," and "some mild lumbosacral spondylosis*fn2 [at] L4-5 and L5-S1 with bilateral foraminal narrowing, mild at L5 bilaterally." There was no evidence of central canal or lateral recess stenosis, or nerve root impingement. (Id.).

Dr. Fetzer diagnosed "[a]xial low back pain likely facet mediated but also from weak core musculature." She opined that Plaintiff "may have a component of bilateral L5 radiculitis," and indicated that the "first approach" for treatment was still physical therapy. Plaintiff "seem[ed] somewhat resistant" to this idea but accepted a prescription for a therapy program. Plaintiff was also not interested in the next level of intervention, including a diagnostic intraarticular facet injection and selective nerve root block. Dr. Fetzer told Plaintiff that she "d[id] not feel he is disabled regarding his lumbar spine," and instructed him to follow up in six weeks for reassessment. (Id.).

2. 2008 Hip Surgery

Pursuant to a referral from Dr. Rosenberg, Plaintiff saw Dr. Scott Sporer at Central DuPage Hospital on February 22, 2008. Dr. Sporer reviewed Plaintiff's X-rays and noted a "monoblock fibrous coated AML [anatomical medullary locking] stem" and an apparent "HG-II component which shows a circumferential radiolucency." (R. 206, 216). Dr. Sporer assessed "[l]eft hip aseptic acetabular loosening" and recommended that Plaintiff have a left acetabular revision. (R. 206). At a preoperative evaluation on March 21, 2008, Plaintiff stated that he was "markedly debilitated" by his hip pain and wanted to proceed with surgery. (R. 205).

Dr. Sporer performed the acetabular revision on May 8, 2008. (R. 208-10, 214). At a follow-up visit on May 23, 2008, Plaintiff was "doing well" with "no complaints." X-rays showed the "AML stem in good position" with "[c]omponents . . . well fixed." (R. 204, 213). When Plaintiff returned to Dr. Sporer on June 25, 2008, he was still doing well and healing nicely. He reported being "very happy with his surgical result," and was "working hard" on physical therapy. (R. 203). On examination of the left hip, Plaintiff had full extension, flexion to 100 degrees, internal rotation to 15 degrees, and external rotation to 35 degrees with no pain. An X-ray again showed the AML stem to be in good position and "well fixed."

(R. 203, 212).

Plaintiff next saw Dr. Sporer on August 27, 2008. He complained of some intermittent pain and discomfort, but said that it was "improving with his strength training."

(R. 202). Plaintiff's range of motion remained steady from his previous visit, and an X-ray was unchanged as well. (R. 202, 211). Dr. Sporer instructed Plaintiff to return for a follow-up evaluation in three months. (R. 202).

The next and final medical record is dated October 7, 2008, at which time Plaintiff saw Steven Decker, D.O., at the Riverside Medical Center due to a "painful hip injury." (R. 218). The treatment note indicates that Plaintiff was taking Tramadol every 6 to 8 hours, as well as aspirin and Lorazepam (a sleep aid). Dr. ...


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