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Giebudowski v. Colvin

United States District Court, N.D. Illinois, Western Division

November 6, 2013

EDWARD GIEBUDOWSKI, Plaintiff-Claimant,
CAROLYN W. COLVIN, Acting Director, Commissioner of Social Security, Defendant-Respondent

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[Copyrighted Material Omitted]

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For Edward Giebudowski, Plaintiff: Barry Alan Schultz, Law Offices of Barry Schultz, Evanston, IL.

For Michael J. Astrue, Commissioner of Social Security, Defendant: Monica V Mallory, LEAD ATTORNEY, United States Attorney's Office, Rockford, IL.


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Iain D. Johnston, U.S. Magistrate Judge.

Edward Giebudowski (hereinafter, " Claimant" ) brings this action under 42 U.S.C. § 405(g), seeking reversal or remand of the decision by Respondent, Carolyn W. Colvin, [1] Acting Commissioner of Social Security (" Commissioner" ), denying his application for disability insurance benefits under Title II of the Social Security Act (" SSA" ). This matter is before the Court on cross-motions for summary judgment.

The Claimant argues that the Commissioner's decision denying his application for benefits should be reversed or remanded for further proceedings because the Administrative Law Judge's (" ALJ" ) decision is not supported by substantial evidence and is contrary to law. The Commissioner argues that the ALJ's decision should be affirmed because it is supported by substantial evidence. For the reasons set forth more fully below, the Claimant's motion for summary judgment is granted in part and denied in part, and the Commissioner's motion is denied. The matter is remanded.


A. Procedural History

The Claimant filed an application for disability on January 17, 2006, alleging a

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disability onset date of August 13, 1999, due to a back injury, degenerative disc disease, buttock and leg pain, numbness, and high blood pressure. R. 147, 157. The application was denied on May 1, 2006. R.100. The Claimant filed a request for a hearing on December 19, 2006. R. 112. Although the ALJ concluded that the request was untimely, she found good cause for allowing the untimely filing and conducted a hearing on September 19, 2008, in Orland Park, Illinois. R. 14. The Claimant, his wife, and Vocational Expert Thomas Grzesik testified at the hearing. R. 28.

On March 25, 2009, the ALJ issued a decision denying the claim for benefits. Id. The Claimant filed a timely request to review the ALJ's decision, but it was denied making the ALJ's decision the final decision of the Commissioner. R. 1-4. Thereafter, the Claimant filed this appeal pursuant to 42 U.S.C. § 405(g).

B. Hearing Testimony

1. Claimant

The Claimant proceeded pro se at his hearing on September 19, 2008. R. 31-32. He testified that he had worked as an outdoor laborer until August 13, 1999, when an accident at work aggravated previous back injuries. R. 41-42. Although he had two surgeries to repair his earlier back injuries, doctors did not want to risk a third surgery because of scar tissue that had developed near his sciatic nerve. R. 42. Instead, the Claimant participated in a work hardening program to rebuild his strength. R. 43. However, he had difficulty climbing ladders and stairs, lifting more than 10 or 15 pounds, or walking any more than short distances, and so he " flunked out" of the program after 6 weeks. R. 43.

The Claimant testified that in addition to continuing back pain, he also suffers from (1) hammertoe on his right foot that prevents him from taking a full stride, affects his balance, and causes pain, R. 51, (2) a noncancerous lymphoma on his neck that rarely causes headaches, R.52, (3) a problem with his left hip point that causes pain, R. 53, and (4) a problem with his rotator cuff that also causes pain, R. 54. He testified that after the 1999 injury he received injections that alleviated the pain for a couple of months, but the pain always returned. R. 55-56. At the time of the hearing, he used Vicodin, Lyrica, and oxycodone to control his pain. R. 60-61.

The Claimant testified that in 2004, he would help around the house with housecleaning such as vacuuming and laundry, light shopping and yard work, and would help care for his newborn grandson. R. 63-64. His hobbies included playing guitar and building model airplanes. R. 64-65. However, he needed to alternate sitting and standing while building the airplanes, and would eventually have difficulty maintaining his concentration and need to lie down. R. 71-72. He also had difficulty finishing a song on his guitar. R. 71. He testified that he must alternate between sitting, standing, and walking about every 30 minutes or else his legs go numb. R. 67. The Claimant also described an incident in 2003 when he used an ax to chop a pallet for firewood, but overshot the pallet and injured his elbow. R. 77-78.

2. Claimant's Wife

The Claimant's wife also testified at the hearing. She testified that her husband would sometimes cut wood using a 16-pound electric chainsaw. R. 78. She also testified that he spent about 80 percent of the past 10 years lying down. R. 83.

3. Vocational Expert

Vocational expert Thomas Gressick also testified at the hearing. The ALJ presented Gressick with the following hypothetical:

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an individual the Claimant's age, education level, and work experience, who could perform light work with a sit/stand option that allowed him to change positions once an hour who could do occasional overhead reaching, frequent forward reaching, and simple routine tasks that involved simple instructions. R. 91. According to Gressick, this hypothetical person could perform 4,000 jobs as a production assembler, 3,000 jobs as a small products assembly, and 500 jobs as an electronics worker in the region. R. 92. Gressick testified that the jobs available would not change even if lifting were limited to a maximum of 15 pounds, and standing was limited to a total of 4 hours per day, alternating positions once every hour. R. 93. However, Gressick testified those jobs would not be available if the hypothetical person could stand for a total of only 2 hours or could reach forward only occasionally. R. 93-94.

C. Medical Evidence

The Claimant injured his back while working as a mechanic in 1986, underwent a laminectomy at L4-5 performed by Dr. Robert Kazan, and after rehabilitation returned to work 6 months later. R. 424. In 1993, he re-injured his back at work, Dr. Kazan again performed surgery, and after rehabilitation returned to work about 6 months later. R. 424. In 1999, the Claimant again injured his back at work while cleaning a sewer. R. 424. An MRI of the lumbar spine dated September 8, 1999, revealed mild disc herniation at the L3-4 level that was minimally larger than noted in 1991 and produced mild spinal stenosis. R. 385. The MRI also revealed recurrent disc herniation at L5-S1 probable with foraminal narrowing. R. 385. On November 10, 1999, a lumbar myelogram revealed mild bulging at L3-4 and moderate degenerative disc disease at L5-S1. R. 424.

On July 14, 2000, Claimant sought treatment for back pain from Dr. Gary Koehn. Dr. Koehn noted that an EMG revealed right L5-S1 spinous denervation without radiculopathy. R. 209. According to Dr. Koehn's notes, Claimant reported back and lower extremity pain with radiation to the foot. R. 209. An exam revealed positive straight leg raising accentuated by ankle dorsielexion, but motor, sensory, and touch exams were symmetric. R. 209. Two neurosurgeons deemed him not to be a candidate for surgery. R. 209. The Claimant received a series of right L5-S1 selective nerve root blocks, and while they provided relief, he was unable to complete a work hardening program. R. 209.

On September 7, 2001, Claimant sought treatment for back pain from Dr. Scott Robertson. R. 252. Dr. Robertson reported that Claimant's back pain was now only intermittent, and that his heel and toe walking, ankle and knee reflexes, and sensation in his feet were all normal. R. 252. He also reported that Claimant could squat and rise from a squat, but that straight leg raising was painful on his right side. R. 232. On September 13, 2001, Dr. Robinson noted that Claimant's back pain was 80 percent better, that his activity tolerance was essentially normal, and that he could resume normal activities. R. 250-51.

On March 13, 2002, Claimant returned to Dr. Koehn complaining of an exacerbation of his right-sided problems. R. 216. On March 22, 2002, Claimant underwent an MRI, which found severe degenerative disc disease at L5-S1 with mild to moderate degenerative change in the L3-4, T11-12, and T12-L1 intervetebral disc which indented the ventral aspect of the thecal sac with no sign of neural impingement at that level, a ...

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