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Werner v. Astrue

United States District Court, Seventh Circuit

October 23, 2013

THOMAS G. WERNER, Plaintiff,
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.


P. MICHAEL MAHONEY, Magistrate Judge.

I. Introduction

Thomas G. Werner ("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

Claimant alleges that he was disabled as of September 27, 2008 after sustaining several injuries in an automobile accident. On November 13, 2008, Claimant applied for DIB. (Tr. 124-130.) This DIB application was denied initially and again upon reconsideration. (Tr. 74, 80.) Claimant then filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). (Tr. 43-71.) His request was granted and the hearing took place before ALJ Daniel Dadabo via video teleconference between Evanston and Rockford, Illinois on August 31, 2010. (Tr. 43.) Claimant appeared and testified in Rockford for the hearing with his attorney present. (Tr. 43, 47.) Vocational expert ("VE"), Susan Entenberg, also testified before the ALJ. (Tr. 43, 62.)

After the hearing, the ALJ found that Claimant was not disabled and therefore denied his claims for DIB. (Tr. 12-29.) In response, Claimant filed a request for review with the Social Security Administration. (Tr. 1-3.) The Appeals Council denied Claimant's request. (Tr. 1-3.) As a result of this denial, the ALJ's decision is considered the final determination of the Commissioner. See 20 C.F.R. §§ 404.981, 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), 1383(c)(3).

III. Background and Hearing Evidence

Claimant believes that he is disabled due to physical injuries sustained in a DUI-related automobile accident in 2008. (Tr. 255, 271-272, 275.) Claimant was not wearing a safety belt, fell asleep while driving, and was ejected from the car. (Tr. 271-272, 275.) As a result, Claimant suffered cervical, thoracic spine, rib, sternum, nose, and facial fractures. (Tr. 268-269, 272, 276-277.) In addition, he claims that he suffers chronic depression, dizziness, and memory deficiencies stemming from the accident, alleging that those symptoms are disabling as well. (Tr. 46.)

Claimant was fifty-five years old at the time of the hearing. (Tr. 47.) He was educated and completed high school, attended a few semesters of college, but dropped out and never earned a degree. (Tr. 47.) Claimant stands five feet and eight inches tall; he weighed approximately two-hundred and fifteen pounds at the time of the hearing. (Tr. 152, 1123.) Claimant's work history consists of construction work, boat sales, restaurant and bar management, and ownership and sales management of a printing and publishing company. (Tr. 174.) He has not been gainfully employed since his injuries. (Tr. 174.)

At the hearing, the ALJ first questioned Claimant's ability to drive. (Tr. 47.) Claimant admitted that he often drives approximately twenty-five miles "most every day." (Tr. 47.) Although he said that sometimes his narcotic medication, hydrocodone, or his back pain can limit his driving, in February 2010 Claimant drove from Illinois to Florida in order to visit his daughter. (Tr. 47, 49.) The trip took him two and a half days to complete, but that timeframe includes the day Claimant visited his sister in Alabama. (Tr. 48.) Claimant was also able to tolerate a five-hour flight to Mexico for vacation in January 2010. (Tr. 49.)

When asked to describe his pain, Claimant stated that his back pain is localized in his mid-to-upper back. (Tr. 49.) It mostly affects him in the morning when he first wakes up. (Tr. 49.) The pain will lessen as the Claimant gets moving around. (Tr. 49.) Yet, sometimes it will flare up after certain activities: standing, lifting, and mowing. (Tr. 50.) "[D]uring the day it'll go from excruciating pain to tolerable pain and then back to excruciating pain towards the evening, " he testified. (Tr. 50.) The ALJ asked Claimant to assign a number rating from one to ten - ten being the most extreme - to describe his daily pain, (Tr. 50.) Claimant said his pain is a "four" when he wakes up in the morning. (Tr. 50.) "If I don't... take it easy, it might go up to a five or six, " he said. (Tr. 51.) "[I]f I do the wrong thing, then it shoots up to a seven or eight." (Tr. 51.) When his pain increases to these higher levels, Claimant will take hydrocodone, a narcotic pain medication. (Tr. 51.) On average, he takes one hydrocodone per day, "otherwise [he] can tolerate [the pain] with... Advil" or Aleve, taking up to eight of these over-the-counter pills every day. (Tr. 51, 56.)

As far as his physical limitations are concerned, Claimant asserted that he is able to stand in one position for fifteen minutes at a time and sit for an hour without needing to get up and walk around. (Tr. 51.) "Standing is worse than sitting, " he said. (Tr. 51.) "[I]f I get sore from standing, then I have to sit in a chair and put my feet up to [feel] normal." (Tr. 51-52.) He testified that he will often recline with his legs elevated for about two-to-three hours on an average day. (Tr. 58.) Also, Claimant acknowledged that he "can lift quite a bit" if he lifts objects to his side: "I can handle like [twenty-five], [thirty] pounds pretty easy. However[, ] if I've got anything out in front of me, [it] just kills me." (Tr. 52.)

At the time of the hearing, Claimant still attended physical therapy every Friday. (Tr. 53.) Claimant said that he had been going to therapy for approximately one year. (Tr. 53.) Although Claimant thought the sessions were helpful, he still experienced pain. (Tr. 53, 57.)

The ALJ asked Claimant if he could perform "a sitting job" to "take advantage of [the] past work [that he has] done." (Tr. 54.) Claimant answered that the biggest obstacle to his performance would be his dizziness and general lack of concentration due to his pain: "[W]hen I get a dizzy spell, I just can't concentrate and... I don't remember well. So I don't think I [could perform] a sitting job that requires that type of thing, " he said. (Tr. 54.) Claimant later admitted that he did not have any problems concentrating on "simple things" like television programs, but he elaborated that he sometimes finds himself not paying attention while in conversation. (Tr. 60.)

Later, during his attorney's examination, Claimant stated that his daily dose of hydrocodone made him feel dizzy and groggy. (Tr. 57.) However, he thought the effect was in addition to, rather than the cause of, his underlying confusion and dizziness. (Tr. 57.) Claimant testified that the dizziness, fatigue, and pain causes him to cease all activity once every two weeks on average. (Tr. 61-62.) He also gets sore and tired, and reported trouble sleeping at night. (Tr. 57.)

Just as Claimants examination was coming to a close, his attorney brought up the topic of depression, seemingly as an afterthought. (Tr. 62.) Claimant stated that he experienced "a lot of depression" four years prior to the hearing, after his divorce. (Tr. 62.) Since then, he had been taking Lexapro but ceased the medication because he felt that he was already taking too many pills for his pain. (Tr. 62.) "I think I still have some depression[, ] but not like...after the divorce, " Claimant explained. (Tr. 62.) He thought the depression was under better control at present; "[a] little bit of depression, but it's better [now], " he affirmed. (Tr. 62.)

After Claimant's examination concluded, the VE was called to testify. (Tr. 60.) Initially, she had a question regarding the nature of Claimant's past work as a sales manager at a printing plant. (Tr. 60-64.) The ALJ gave Claimant an opportunity to describe his duties required for that position. (Tr. 64.) He explained that he would usually sit down for about six hours while on the job, but that he needed to drive to other printing facilities about once a week. (Tr. 64.) After considering Claimant's explanation, the VE classified the managing position as "sedentary" and "skilled." (Tr. 66.)

Next, the ALJ asked the VE to consider the transferability of an individual of Claimant's age, with his level of education and work experience, who could perform sedentary work. (Tr. 66-67.) The VE testified that such a person could perform Claimant's past relevant work as a salesman and his skills of "sales and management of people" were transferable to 50, 000 other skilled and semi-skilled positions in the Chicago metropolitan area alone. (Tr. 67.)

IV. Medical History

The first medical record available is from the early morning of September 27, 2008, when Claimant was involved in an automobile accident. (Tr. 244.) Claimant was taken to the Mercy Medical Center ("MMC") in Dubuque, Iowa after he was driving a convertible and "supposedly fell asleep." (Tr. 244.) He was not wearing a safety belt during the accident and he was ejected from the car as the vehicle rolled over. (Tr. 244, 271-275.) Claimant "laid in the field for [an] unknown amount of time" before paramedics found him and brought him to MMC's trauma center. (Tr. 244.) At the time of his arrival, he was awake, alert, and oriented, but doctors reported his blood alcohol level as 0.13. (Tr. 244.) The initial diagnosis included "head injury, fractures of the [cervical] spine, chest, [and] abdominal trauma." (Tr. 244.) Dr. Joseph Fuller, M.D., reviewed Claimant's computed tomography ("CT") scan and reported no obvious intracranial injury, but a large hematoma outside the skull, bilaterally collapsed lungs, and an unstable C-6 fracture. (Tr. 246, 255.) Dr. Michael Riley, M.D., subsequently found an unstable T-8 burst fracture, a T-5 compression fracture, a T-9 transverse process fracture, sternal fracture, along with multiple rib and facial fractures. (Tr. 256.)

By 7:47 AM that morning, Claimant was transferred to the University of Wisconsin Hospital ("UWH") in Madison, Wisconsin for additional treatment. (Tr. 267.) Upon his arrival, doctors there recommended "conservative management" of ice packs and "pain control" for the time being. (Tr. 278.) That afternoon, it was reported that Claimant would "likely need operative intervention in the next week to repair his nasal bone fracture, and possible control of his left [jaw]." (Tr. 278.) Similarly, on the following day, doctors determined that they would indeed attempt "nonoperative treatment" for Claimant's injuries, with the exception of surgery to repair his nasal fracture and the insertion of chest tubes. (Tr. 285, 294, 297.) Claimant was closely monitored for any changes in his condition for several weeks.

On October 9, 2008, Claimant's cognitive, memory, and linguistic skills were assessed while he was still under the care of UWH. (Tr. 431.) His results were found to be in the low-average range and a "deficit was measured in the area of delayed memory." (Tr. 431.) However, Claimant did not have access to his reading glasses and the assessor noted that this "may have negatively impacted the score." (Tr. 431.)

Later that day, Dr. Michael J. Ward, M.D., summarized that "[t]he patient underwent [surgery]... for his posterior septum fracture" and that "[t]he [additional] fractures were otherwise treated conservatively and nonoperatively using a [cervicothoracolumbar spine orthotic (CTLSO')] brace." (Tr. 443.) Further, he opined that Claimant's cognition was unaffected by his accident. (Tr. 444.) In the meantime, Claimant continued to progress with the addition of physical therapy during his stay. (Tr. 433.) Claimant was not discharged from UWH until October 13, 2008. (Tr. 269.)

On the day of his discharge, Claimant checked in to the Finley Hospital Acute Rehabilitation Unit ("Finley") in Dubuque, Iowa to begin inpatient physical therapy. (Tr. 1045.) Dr. Mark W. Fortson, M.D., noted that the "goal of therapy will [be] re-establishment of adequate strength and coordination to be independent in [Claimant's] activities of daily living while allowing his fractures to heal to the point of restoration of spinal column stability." (Tr. 1046.) "Physical therapy and occupational therapy will be the key in the patient's recovery efforts, " he added. (Tr. 1046.) Claimant's history of hypertension, depression, and alcohol dependence was reviewed. (Tr. 1046.) Dr. Fortson anticipated that Claimant would continue to be hospitalized for inpatient rehabilitation until the end of November. He remained in physical therapy after his release and throughout the rest of the fall of 2008. (Tr. 1043-1090.)

On December 18, 2008, just a few months after his accident, Claimant was evaluated by Dr. Clifford Tribus, M.D., at the University of Wisconsin Department of Orthopedics and Rehabilitation Medicine. (Tr. 1099.) Dr. Tribus discussed Claimant's prior MRI results, noting "retropulsion and some slightly increased edema at [T-8]; however, since his clinical exam he had improved somewhat, we [will] continue treating him nonoperatively." (Tr. 1098.) Claimant believed that his gait and balance had improved and that he had no problems with fine motor skills at the time. (Tr. 1098.) Dr. Tribus instructed that Claimant could "wean himself out of his cervical collar" and, within two weeks, he could begin to discontinue use of his CTLSO brace as well. (Tr. 1098.) Claimant was also advised to cut back on his pain medications. (Tr. 1098.)

Just under a month later, DDS physician, Dr. Ernst Bone, M.D., completed a Residual Functional Capacity Assessment form on January 9, 2009. (Tr. 1101.) Upon review of Claimant's medical records, Dr. Bone found that Claimant could

• occasionally lift or carry twenty pounds;
• frequently lift or carry ten pounds;
• stand and walk for about six hours in an eight-hour workday;
• sit for about six hours in an eight-hour workday;
• push and pull without restriction other than his abilities ...

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