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Michael L. Stuart v. Michael J. Astrue

December 4, 2012

MICHAEL L. STUART,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney

MEMORANDUM OPINION AND ORDER

I. Introduction

Michael L. Stuart ("Claimant") seeks judicial review of the Social Security Administration Commissioner's decision to deny his claim for Disability Insurance Benefits ("DIB"), under Title II of the Social Security Act. See 42 U.S.C. § 405(g). This matter is before the Magistrate Judge pursuant to the consent of both parties. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

II. Administrative Proceedings

On January 26, 2007, Claimant applied for Supplemental Security Income, alleging a disability onset date of January 1, 1989. (Tr. 19.) Claimant's initial application was denied on June 1, 2007. (Tr. 19.) His claim was denied a second time upon reconsideration on August 31, 2007. (Tr. 19.) Claimant then filed a timely request for a hearing before an Administrative Law Judge ("ALJ") on September 28, 2007. (Tr. 19.) The hearing took place on December 2, 2008, via video teleconference between Evanston, Illinois and Rockford, Illinois, before ALJ Robert T. Karmgard. (Tr. 29.) Claimant appeared and testified in Rockford with his attorney present. (Tr. 19.) Claimant's uncle, Robert Kostenbader ("Kostenbader"), medical expert ("ME"), Ellen Rozenfeld, and vocational expert ("VE"), William Newman, also testified before the ALJ. (Tr. 19.)

On April 29, 2009, the ALJ held that Claimant was not disabled and denied his claim for DIB. (Tr. 19.) The ALJ's decision is considered the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1455, 416.1481. Claimant now files a complaint in this Federal District Court, seeking judicial review under 42 U.S.C. § 405(g).

III. Background

Claimant was born on October 20, 1963, and was forty-five years old at the time of the hearing. (Tr. 37.) Claimant stood six feet and three inches tall, and weighed approximately 180 pounds when he appeared in front of the ALJ. (Tr. 39.) At the time of the hearing, Claimant resided in Freeport, Illinois with his grandfather. (Tr. 37-38.) He completed the tenth grade, and failed to earn a G.E.D. (Tr. 39.)

Claimant was involved in a motorcycle accident on August 21, 1987, in which he was thrown from the motorcycle after it hit a parked car. (Tr. 257.) Claimant stated that he suffered a traumatic brain injury and spent approximately two to three months in a hospital and another two to three months in a rehabilitation facility. (Tr. 347.) Medical notes also state that Claimant had a right hip fracture which was subsequently pinned. (Tr. 274.) Further medical notes show that an x-ray conducted on April 9, 1992 revealed that Claimant had exostosis on the medial epicondyle of right femur which was surgically removed. (Tr. 275.)

The Claimant's main previous work was working as a janitor and working on an assembly line stacking cheese. (Tr. 91.) The VE present at the hearing reported both positions as unskilled, light professions. (Tr. 91.) Claimant worked the janitorial job five days a week, approximately four hours a day, for a couple months but had to leave the job due to a lack of transportation. (Tr. 43.)

In the hearing which took place on December 2, 2008, Claimant testified that he spends the average day watching TV or cleaning the house, which includes sweeping, vacuuming and doing the dishes. (Tr. 46.) Claimant further stated that he does a little bit of cooking but his uncle takes him to the store. (Tr. 44.) Claimant's uncle further stated that Claimant can go to the store on his own, as long as he makes a short list of products. (Tr. 63-65.) The Claimant testified that he frequently visits with his uncle, and maintains relationships with his brother and one other friend. (Tr. 45.) Claimant also stated that he leaves the house once or twice a day to "walk around" and can walk about a half hour before his right knee and right hip get sore.(Tr. 46, 50.) Furthermore, he stated that he tries to help his uncle cut the grass using a push lawnmower. (Tr. 54.) Claimant reported that he hardly ever consumes alcohol and had never used cocaine or crack cocaine, but examinations conducted in May of 2007 produce conflicting results. (Tr. 51-53.)

The ME testified that the Claimant was certainly capable of understanding, remembering, and following simple, routine instructions. (Tr. 80.) He then stated that Claimant is capable of sustained attention and concentration. (Tr. 81.) The ME further testified that in a predictable environment Claimant is capable of performing tasks of a simple and routine nature on a sustained basis. (Tr. 81.) He then emphasized that given the Claimant's memory impairment and the testimony, Claimant would do best in an activity where he is responsible for his own actions rather than in conjunction with others. (Tr. 81.)

The VE in the initial hearing was given the following hypothetical: ".we have a hypothetical male individual who's between the ages of 40 and 45 years, has a 10th grade education with the ability to read and write [the] English language, has the ability to use basic numbers, has the same prior work history as Mr. Stuart with the capacity to perform work with the following and no other additional limitations. A lift and carry up to a maximum of 20 pounds on an occasional basis, ten pounds frequently, a sit, stand and walk respectively and with normal breaks of up to six hours each within an eight-hour day. May not climb ladders, ropes or scaffolds, but otherwise climb ramps or stairs, balance, stoop, kneel, crouch and crawl on no more than an occasional basis, does not have the ability to understand, recall, focus on, attend to or carry out complex or detailed instructions, nor does he have the ability to focus on, attend to or perform complex or detailed tasks.

He would, however, retain the capacity to understand, recall, focus on attention and carry out simple, routine instructions and to focus upon, attend to and perform simple, routine tasks at a sustained like pace. The individual, however, may not perform work that requires that he work in direct or nation or concert with co-employees as to the performance of mutual projects or jointly assigned tasks. By that I mean an activity that requires two or more persons acting simultaneously to complete the task performance, but retains the capacity to perform individually assigned tasks with the limitations noted above. He retains that capacity and may do so in the presence of proximity of co-workers." (Tr. 91-92.)

When asked what impact such limitations would have on the Claimant's prior work, the VE stated that it would have no impact. (Tr. 92.) The VE testified that other work existed that such a Claimant could perform including packager, housekeeper, and cafeteria attendant, which constitute unskilled, light professions. (Tr. 93.) The VE further stated the Claimant could perform the jobs of sorter and bench assembler, both of which constitute unskilled, sedentary professions. (Tr. 93.)

IV. Medical History

1. Right Hip and Right Knee

On August 21, 2007, Claimant was admitted to the Freeport Memorial Hospital after being involved in a motorcycle accident. (Tr. 257.) Notes from a report stated that after the accident the Claimant had a right hip fracture which was subsequently pinned. (Tr. 274.)

A report from the Department of Radiology, produced on April 26, 1988, noted that x-rays did not show any recent bone injury or destruction in the right knee, but there was some calcification in the soft tissues adjacent to the medial condyle of the femur. (Tr. 265.) The note speculated that this was probably the result of previous trauma. (Tr. 265.) The same x-ray provided views of the Claimant's pelvis and right hip. (Tr. 265.) These views exposed some deformity of the pelvis with a bony growth along the sacroiliac area on the left side and deformity at the acetabulum and pubic area on the right side from previous trauma. (Tr. 265.) The x-ray also revealed a relative radiolucency in the cortex of the shaft of the right femur laterally opposite the lesser trochanter. (Tr. 265.) This was not present on the x-rays taken at the time of Claimant's motorcycle accident, nearly eight months earlier. (Tr. 265.)

Claimant visited Freeport Memorial Hospital on April 9, 1992 after experiencing knee pain. (Tr. 276.) J. L. Lutz, D.O., examined Claimant's knee and found that his knee only had a range of motion from 30 degrees to 140 degrees and Claimant was unable to extend it the last 30 degrees. (Tr. 276.) Claimant had a large, mildly tender bony mass over the medial aspect of the femur at the femoral epicondyle. (Tr. 276.) Claimant's gait was significantly altered by the lacking 30 degrees of extension. (Tr. 276.) An x-ray further revealed that there was a large exostosis in the medial epicondyle of the right femur. (Tr. 276.) The overall diagnosis was that Claimant had exostosis on the medial epicondyle of right femur with loss of extension of knee. (Tr. 276.) The following day, at a preoperative medical clearance, Dr. M. J. Merry, M.D., assessed the Claimant and found that the Claimant had exostosis of the right knee, and persistent cognitive deficit. (Tr. 275.) After the operation, Claimant was instructed to use crutches. (Tr. 275.)

On February 18, 2001, Claimant admitted himself to the Freeport Health Network -- Emergency Department complaining of right knee pain after tripping. (Tr. 315.) Claimant's knee was swollen and tender. (Tr. 317.) Ace wrap was applied to the Claimant's knee and he was discharged. (Tr. 315.)

Claimant was referred to Elizabeth Myers, A.P.N., F.N.P., for a consultation on October 16, 2009. (Tr. 461.) A motor examination of the Claimant revealed that he had 5/5 strength in all four extremities and muscle groups. (Tr. 462.) Claimant had a normal and tandem gait and successfully withstood postural challenges. (Tr. 462.) Myers met with the Claimant again on November 5, 2009 for a follow up. (Tr. 464.) Myers found that Claimant had normal muscle tone and strength in all four extremities. (Tr. 465.) She further found that Claimant had a normal gait but could not withstand postural challenges. (Tr. 465.)

2. Brain and Head Injury, Diminished Intellectual Function, and Memory Impairment

On July 28, 2004, Terrance E. McGovern, Ph.D., conducted a neuropsychological evaluation of the Claimant. (Tr. 346.) Dr. McGovern's notes describe his behavioral observations of the Claimant. (Tr. 346.) Claimant was alert, attentive, and cooperative throughout out the assessment. (Tr. 346.) His affect and manner were normal in range and intensity of expression. (Tr. 346.) Claimant's thought processes were logical, well-ordered, and relevant to the topic at hand. (Tr. 346.) Speech was fluent and his words were articulated without difficulty. (Tr. 346.) His motivation and task persistence were ...


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