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Heard v. Astrue

United States District Court, Seventh Circuit

August 30, 2013

JOSHUA L. HEARD, Plaintiff,



Plaintiff Joshua L. Heard claims that he is disabled by an ankle impairment and lower back pain. Heard seeks review of the final decision of the Commissioner of Social Security that Heard is not disabled for the purposes of disability insurance benefits under Title II of the Social Security Act. 42 U.S.C. §§ 416(I), 423(d). Because Heard's last insured date was March 31, 2004, he must establish that he was disabled in the 30 days after the alleged onset of his disability, March 1, 2004. Heard provided little evidence from that relevant period, and the Administration adopted the determination of its Administrative Law Judge ("ALJ") that the record did not support a finding that Heard was disabled during that brief time. For the reasons explained below, the court agrees and denies Heard's motion for summary judgment [18]. The Commissioner's cross-motion for summary judgment [23] is granted.


I. Procedural History

In 1996, Heard suffered a severe ankle injury and underwent surgery to repair it. Except for a two-day stint at UPS (the record does not include the date), he has not been gainfully employed since then. He applied for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). (R. at 94, 96.) In earlier proceedings, the Social Security Administration determined that Heard's disability ceased in 2003.

At issue in this case is a claim for SSI and DIB that Plaintiff filed in March 2007. On that claim, the Social Security Administration awarded SSI benefits, but not DIB, concluding that the evidence did not establish a disabling impairment before March 2004. Heard appealed that determination and ALJ Regina M. Kossek conducted two hearings-one in November 2009 and a second one in April 2010. On May 6, 2010, ALJ Kossek issued her ruling. She determined that Heard was not disabled at any time from the alleged onset date (March 1, 2004) through his last insured date (March 31, 2004). Specifically, ALJ Kossek concluded that Heard can only occasionally climb, kneel, stoop, crouch, or crawl, and is dependent on a cane; and that he is unable to perform any past relevant work. ALJ Kossek determined that Heard is, however, capable of performing unskilled sedentary work as defined by 20 C.F.R. § 404.1567(a). (R. at 16-21.) Heard appealed ALJ Kossek's decision, and the Appeals Council denied review, making ALJ Kossek's decision the Commissioner's final decision pursuant to 20 C.F.R. § 404. 981. (R. at 1.) Heard now seeks review of the Commissioner's decision.

II. Medical History

Medical records relating to the relevant time period (March 2004) are meager. Those records document visits to Dr. Leonard R. Jubert, Heard's treating physician, and to Chicago Consulting Physicians. As described below, Heard was also examined by Dr. Villanueva of Chicago Consulting Physicians for the Bureau of Disability Determination Services on June 18, 2007. (R. at 318-22.) Heard's other medical records fall outside the pertinent time period or are irrelevant to this determination.[1]

A. Records from Dr. Jubert

Heard injured his ankle in 1996 and received treatment at Roseland Community Hospital, including the placement of screws in his ankle. (R. at 100.) Records show that Heard's podiatrist, Dr. Jubert, began treating Heard on November 15, 2003 for ankle pain caused by the accident and subsequent surgery. (R. at 370.) Although large portions of the handwritten notes in Dr. Jubert's records are illegible, the notes and associated medical billing codes from that first visit reveal that Dr. Jubert diagnosed Heard with arthritis in his right ankle, edema, pain, and varicose veins in his lower extremities.[2] ( Id. ) Dr. Jubert also ordered an x-ray and an arthrocentesis procedure on Heard's right ankle.[3] ( Id. ) There is no record that such a procedure actually took place, however.

Heard next visited Dr. Jubert on January 8, 2004, after re-injuring his ankle in a car accident. (R. at 18.) Dr. Jubert observed pain and palpitation in Heard's right ankle and diagnosed Heard with neuritis.[4] (R. at 369.) Dr. Jubert also ordered another x-ray and prescribed Prudoxin cream.[5] ( Id. ) At an appointment on February 3 in 2004 or 2005-the year cannot be determined from the record-Dr. Jubert diagnosed Heard with bursitis, planned a drainage procedure for Heard's right ankle, and prescribed Foltx, which is a combination of vitamins.[6] (R. at 368.) On January 31, 2006, Heard complained to Dr. Jubert of swelling in his ankle after twisting it three days earlier. Dr. Jubert again diagnosed Heard with arthritis in his right ankle, edema, and pain, and noted that Heard suffered a decreased range of motion and palpitations. (R. at 367.) Approximately five weeks later, in March 2006, Dr. Jubert saw Heard again, diagnosed bursitis, and planned a drainage procedure. (R. at 366.) There are no other legible records of treatment from Dr. Jubert within two years of the date lastinsured, March 31, 2004.[7] Dr. Jubert did later diagnose Heard with degenerative joint disease ("DJD", also known as osteoarthritis) in 2007.[8] (R. at 365.)

Dr. Jubert also completed arthritic and neurological reports dated April 23, 2007 for the Bureau of Disability Determination Services to evaluate Heard's eligibility for benefits. The arthritic report stated that Heard had degenerative joint disease and a restricted range of motion. Dr. Jubert reported that Heard used a cane at all times for walking, standing, and balancing, and that he is unable to stand for more than one hour. (R. at 308-09.) The neurological report noted that Heard used a cane or crutches, was unable to ambulate more than fifty feet without assistance, and that his right leg had atrophied. (R. at 311-12.) In the April 2007 reports, Dr. Jubert declared his then-current diagnosis for Heard was degenerative joint disease and complex regional pain syndrome.[9] (R. at 311.)

Along with his reports, Dr. Jubert provided a letter dated April 27, 2007 to the Bureau of Disability Determination Services. The letter summarizes the results from the x-rays conducted on November 15, 2003, and January 8, 2004, which revealed that a plate and several screws had been installed in Heard's right ankle to repair fractures at the tibia and fibula bones, and that two of the screws did not appear to be flush with the plate. (R. at 315.) Dr. Jubert observed that Heard's tibia, fibula, and talus bones appeared porous and brittle-"osteoporotic"-and there was "[s]evere narrowing of the talocrural joint space" on both x-rays.[10] ( Id. ) Dr. Jubert concluded that the x-rays from 2003 and 2004 showed "signs of Degenerative Joint Disease secondary to previously fractured surgically repaired tibia and fibula bones of the right ankle." ( Id. )

B. Records from Chicago Consulting Physicians

At the request of the Bureau of Disability Determination Services, Dr. Norma Villanueva-whose specialty is not noted-conducted an Internal Medicine Consultative Examination on June 18, 2007. (R. at 318-22). Heard's chief complaints at that time were a "[c]rushed right ankle and stomach ulcer." (R. at 318.) After a 40 minute examination, Dr. Villanueva reported that Heard had a history of right ankle fractures; possible secondary degenerative arthritis; lower back pain; possible arthritis; and a gastric ulcer. (R. at 318-20). Dr. Villanueva observed that Heard's gait was slow and that he could only walk or limp for ten feet without his cane, but his mental capacity was normal and he could manage his own financial affairs. Radiologist Dr. Joel Leland of the Chicago Consulting Physicians also conducted an x-ray of the lumbar region of Heard's spine on June 18, 2007. That x-ray showed that Heard had a normal lumbosacral spine: the alignment and the spacing between the vertebrae of Heard's spine was normal. (R. at 316-17.)

C. Physical Residual Functional Capacity Assessments

Also at the request of the Bureau of Disability Determination Services, state agency consultants conducted two physical residual functional capacity ("RFC") assessments on Heard. First, on June 27, 2007, Dr. Young-Ja Kim concluded based on Dr. Jubert's x-rays that Heard had suffered from degenerative joint disease in his right ankle since November 2003. (R. at 330.) Dr. Kim concluded that Heard should avoid "concentrated exposure to dangerous heights, " but he could occasionally lift 20 pounds and frequently lift ten pounds; could stand or walk for approximately six hours in an eight-hour work day; and could sit for about six hours, though he was limited in his lower extremities because of his ankle fracture. (R. at 324, 327.) Dr. Kim believed that his findings were consistent with Dr. Jubert's conclusions. (R. at 329.)

In a second RFC assessment conducted on November 6, 2007, Dr. Frank Jimenez concluded that Heard could occasionally lift ten pounds and could frequently lift less than ten pounds, but could stand or walk for significantly less than two hours in an eight-hour workday. (R. at 335.) Dr. Jimenez also noted that Heard complained of back pain, but that the x-ray of Heard's spine was negative for abnormalities. (R. at 341.) Dr. Jimenez observed that Heard had not alleged any significant worsening of pain since the onset of his ankle impairment, though his gait was "slow and limping." ( Id. ) Dr. Jimenez concluded there was insufficient evidence of a disabling impairment on or before Heard's last insured date. (R. at 333.)

III. Hearings before ALJ Kossek

A. Heard's Testimony

Born on December 25, 1959, Heard was 44 years old on his last insured date. (R. at 20.) Heard lives alone in a basement apartment and has no more than an eighth grade education. (R. at 18, 113-14, 117.) He never received any other formal training, and his reading and writing skills are limited, though he can read "a simple list" for shopping. (R. at 117-18.) At the first hearing before ALJ Kossek on November 4, 2009, Heard testified that he had injured his ankle in 1996 while painting a house. Before his ...

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