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Harry J. Jensen v. Michael J. Astrue

December 20, 2012


The opinion of the court was delivered by: Magistrate Judge Arlander Keys


Plaintiff, Harry Jensen, moves this Court for Summary Judgment, pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, to reverse a partially unfavorable final decision of the Commissioner of Social Security (the "Commissioner"). The Commissioner awarded a closed period of disability benefits but denied benefits after May 1, 2008. Mr. Jensen seeks an order reversing that decision or, in the alternative, remanding the case for further proceedings. The Commissioner has filed a Cross--Motion for Summary Judgment, asking this Court to affirm his final decision.

Procedural History

Mr. Jensen protectively filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") in December 2007, claiming that he was disabled as of December 31, 2006 because of shoulder pain, resulting from an injury that occurred on the job, because of colon and bowel issues resulting from a hemicolectomy, and because of high blood pressure. His application was denied initially on August 11, 2008 and on reconsideration on December 5, 2008. In January 2009, Mr. Jensen requested a hearing before an administrative law judge, and his case was assigned to ALJ Marlene Abrams, who held the requested hearing on March 22, 2010.

A. Hearing of March 22, 2010

At the hearing on March 22, 2010, Mr. Jensen appeared, represented by counsel and accompanied by his girlfriend, Caroline Schuck. The ALJ heard testimony from Mr. Jensen and from Ms. Schuck; she also heard from a medical expert, who offered opinions about Mr. Jensen's medical impairments, and from a vocational expert, who offered opinions about Mr. Jensen's ability to work.

1. Mr. Jensen's testimony

At the time of the hearing, Mr. Jensen, whose date of birth is January 22, 1958, was 52 years old. R. at 54. He testified that he lives with his girlfriend in a one-story home, which he owns. R. at 78-79. He testified that he graduated from high school and worked his whole life as a commercial truck driver.

R. at 54. He testified that the trucks he drove all had manual transmissions, which required him to use his right arm to shift gears. R. at 59. He testified that the job also involved lifting trailer doors and gates, and sometimes helping to load and unload freight; he also testified that he frequently had to lift and adjust pallets when loads were not balanced or correctly stowed, and had to frequently climb in and out of the cab of his truck.

R. at 57-60. He testified that the pallets he lifted weighed 10 to 20 pounds each. R. at 58.

With regard to his disabilities and impairments, Mr. Jensen testified that, on December 31, 2006,*fn1 he fell off his truck while trying to adjust some freight that had been improperly loaded; he testified that, as he fell, he held on with one hand, twisting his shoulder and tearing muscles in his arm. R. at 61-62. He testified that, after the accident, the company immediately sent him to the clinic, and then put him on light duty; he testified that he had surgery in January 2007 and worked light duty right up until the week of the surgery. R. at 63. He testified that, after the surgery, he was unable to go back to work. R. at 66. He testified that, in connection with the accident, he filed a workman's compensation claim and was receiving, at the time of the hearing, $477.12 per week; he

There is some evidence suggesting that the accident occurred in September of 2006, testified that they still had not settled the claim, but that he was hoping to do so for a lump sum payment. R. at 66-67.

He testified that he continued to have pain after his first shoulder surgery and that he had a second surgery on his shoulder in October 2008 to try to determine the cause of his pain; he testified that, during this second surgery, the doctors found and removed a suture knot, which had been left in his body during the first surgery. R. at 44.

Mr. Jensen testified that, shortly after his first shoulder surgery, he was diagnosed with colon cancer; he testified that he had another surgery in April 2007 to remove the cancerous parts of his colon. R. at 67. He testified that, since that surgery, his body is unable to absorb necessary vitamins, and, as a result, he has to return to the hospital once a month to receive a shot that maintains the vitamin levels in his system. R. at 72. Mr. Jensen testified that, since his surgery, he has had significant fatigue, and that he complains about it each time he goes to the doctor, but they have yet to offer a solution. R. at 73, 75. He testified that he does follow-up blood tests periodically and CT scans every couple of months or whenever the doctor feels it is necessary. R. at 72. He also testified that, since his surgery, he has frequent, unpredictable bowel movements between four and six times a day. R. at 78. He testified that his treating physician, Dr. Chu, told him that this was something he was going to have to live with for the rest of his life and that there was nothing he could do to alleviate the frequent bowel movements. R. at 78. He testified that his doctor had not prescribed anything to alleviate the frequent bowel movements; nor has she prescribed anything for his pain. R. at 79.

Mr. Jensen testified that the pain in his abdomen is constant and that the pain in his shoulder is intermittent, brought on by any kind of repetitive movement or use. R. at 84-85. He testified that, on a normal day, his pain level is a 10 out of 10; when pressed, he backed off that slightly, acknowledging that, although sometimes it was a 10, it was often at a 9. R. at 95-96. He testified that he was on painkillers for about two months after his first surgery, but that, since that time, he has taken only Ibuprofen; he testified that, despite his complaints of pain, his doctor declines to prescribe additional medication because she believes it would cause him to have additional bowel issues. R. at 88.

With regard to his daily activities, Mr. Jensen testified that he is unable to do much of anything throughout the day, except watch tv. R. at 81-82. He testified that his girlfriend moved in with him and that she does pretty much everything; he just mostly "takes it easy and lays down." R. at 93. He testified that he leaves the house maybe once or twice a week to accompany his girlfriend to the grocery store, to pay his mortgage or to attend doctor appointments. R. at 84. He testified that he does not like to drive or even ride in a car because the bouncing causes him pain; nor does he walk. R. at 82-83. He testified that he also has trouble sleeping because of restless leg syndrome and because of his shoulder and abdominal pain. R. at 98-99. He testified that his pain also affects his ability to concentrate and that he can't "make reasonable thoughts," can't think something through without the pain interfering." R. at 100.

In terms of general observations that were apparent from the hearing transcript, the Court notes that Mr. Jensen left the hearing twice to use the restroom. The Court also notes that Mr. Jensen came into the hearing using a cane, which he stated he used because it helped with his pain, even though it had not been prescribed by a doctor or therapist. R. at 68.

2. Testimony of Caroline Schuck

After Mr. Jensen, the ALJ heard from Caroline Schuck, Mr. Jensen's girlfriend, who was waiting outside of the room when Mr. Jensen testified. Ms. Schuck testified that, although she had known Mr. Jensen for years, she became his girlfriend in about 2006 and had lived with him since 2007; she testified that she moved in with him after his colon surgery to help take care of him. R. at 103. She testified that she had back surgery in November of 2007 and had been off work since that time, so they were together pretty much constantly. R. at 104.

Ms. Schuck testified that Mr. Jensen's shoulder hurts and that he cannot really move it; she testified that, as a result, she does everything around the house. R. at 105. She testified that he pretty much does nothing all day; she testified that he might take a walk, do some dishes or do something to get out of the house, but that most days he just sits or lies down. R. at 108-109.

Ms. Schuck testified that Mr. Jensen occasionally screams in pain if he rolls onto his arm or if he moves it too abruptly. R. at 105. And she testified that he has trouble sleeping and wakes her up at least once a night, sometimes more, either because of his pain or because he has to go to the bathroom. R. at 106. She testified that he goes to the bathroom 4 to 6 times a day and spends about 15 to 20 minutes in the bathroom sometimes. R. at 106. She testified that she assumes these issues stem from his surgery because he didn't go that often before it. R. at 106. Additionally, Ms. Schuck testified that she accompanies Mr. Jensen to his doctor appointments, and she confirmed that she has heard Dr. Chu explain to Mr. Jensen that his condition will cause some discomfort and pain, and that he should take Ibuprofen; she confirmed that the doctor has not prescribed him any pain medication and that she had indicated that he will have to deal with pain the rest of his life. R. at 107.

3. Testimony of Dr. Walter Miller, Medical Expert

Next, the ALJ heard from Dr. Walter Miller, who testified as a medical expert ("ME"). Dr. Miller testified that he had reviewed Mr. Jensen's medical records and that, per those records, Mr. Jensen had a torn and "frayed" tendon. R. at 112. The ME further testified that, after the first surgery, because Mr. Jensen had complained of severe pain, his treating physician, Dr. Tarbit, thought that perhaps there were other issues within his arm, but that the second surgery revealed no real issues; he testified that the suture they found would not have caused severe pain. R. at 113-115, 135. The ME testified that he saw nothing in the medical records to explain why Mr. Jensen would have permanent pain in his shoulder. R. at 139.

The ME further testified that Mr. Jensen was diagnosed with colon cancer, which was staged at IIA, meaning it had moved a little outside the colon but had not spread to the lymph nodes or the liver. R. at 115. He testified that, according to the medical records, the surgery was successful and Mr. Jensen did not require chemotherapy or radiation; his post-surgery CT scans appeared normal. R. at 115. The ME noted that Mr. Jensen did have some post-surgery tissue inflammation, but, according to the x-rays, that was resolved by May of 2008. R. at 116.

The ME testified that the symptoms Mr. Jensen claimed to experience -- discomfort in the bowels, as well as frequent bowel movements -- are normal post-surgery symptoms; he testified, however, that he would have expected the symptoms to gradually dissipate after surgery. R. at 116. The ME testified that it typically takes about a year for the colon to readjust to the fluid intake and that most patients recover from this kind of colon surgery within a year. R. at 122, 145.

The ME further testified that, if Mr. Jensen were experiencing pain to the degree claimed, he would expect to see records documenting tests done to explore the cause of this pain (bowel obstruction tests, e.g.); he saw no such records. R. at 117. Additionally, although Mr. Jensen testified that he receives CT scans every few months, the ME noted that records from such scans did not appear in the record. In short, the ME testified, there was no objective explanation for Mr. Jensen's complaints of permanent pain. R. at 118.

Dr. Miller also testified that there were no postoperative adhesions, and the records do not show that Oak Forest Hospital did any obstructive tests. R. at 118. The record is also silent as to why Mr. Jensen had his first surgery performed at La Grange Hospital under Dr. Friemark's care, but was later being treated by Dr. Tarbit. R. at 118-119. Dr. Miller testified that when a patient has post surgery complications, it is customary that the patient return to the doctor who performed the surgery in order to do more tests, particularly if the patient is experiencing pain. R. at 119. He also testified that switching doctors would not be explained by a lack of insurance because such postoperative care would be included under the same claim as the surgery.

The ME testified that, if he were trying to assign a closed period of disability for Mr. Jensen, he would go through April 30, 2008, one year after the colon surgery. R. at 121. He testified that the record does not contain evidence from which one could conclude that the disability continued after that date -- there were no obstruction tests done and the only tests in the record showed that everything was normal, there were no loops or obstructions in the bowel, no thickness. R. at 123.

Dr. Miller testified that, from December 2006 to April 30, 2008, Mr. Jensen would have been unable to sustain employment because he would have needed too many bathroom breaks throughout the day. R. at 123. He testified that, thereafter, he would still limit Mr. Jensen to light work, with limited (occasional) overhead work on the right side and limited lifting on the right side (limited to 10 lbs. frequently and 20 lbs. occasionally); he testified that, in his view, Mr. Jensen could sit for 6 hours in an 8-hour workday, but could never climb ladders, ropes or scaffolds. R. at 125-126.

When questioned by Mr. Jensen's attorney, the ME acknowledged that Mr. Jensen's should injury was very serious -- rated as a grade 3 out of 4. R. at 128. He acknowledged that the tendon ruptured and that there was also significant fraying of the bicep tendon, and he acknowledged that physical therapy had been largely unsuccessful. R. at 127. The ME testified that status-post shoulder surgery could be an objective basis for pain, and that complaints of disabling pain 3 to 6 months post-surgery would be reasonable, but testified that ...

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