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Marino v. Colvin

United States District Court, Seventh Circuit

December 30, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


SHEILA FINNEGAN, Magistrate Judge.

Plaintiff Gregory D. Marino brings this action under 42 U.S.C. § 405(g), seeking to overturn the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Plaintiff subsequently filed a summary judgment motion seeking reversal of the Administrative Law Judge's decision, and the Commissioner filed a cross-motion for summary judgment seeking affirmance of the decision. After careful review of the parties' briefs and the record, the Court now denies Plaintiff's motion, grants Defendant's motion, and affirms the decision to deny benefits.


Plaintiff applied for DIB on March 27, 2009, alleging that he became disabled beginning on March 18, 2008 due to pain and limited mobility caused by a knee injury and subsequent surgeries. (R. 20, 173-75). The Social Security Administration denied the application initially on August 6, 2009, and again on reconsideration on December 8, 2009. (R. 20, 88-91). Pursuant to Plaintiff's timely request, Administrative Law Judge ("ALJ") Kim Soo Nagle held a hearing on March 23, 2011, where she heard testimony from Plaintiff, represented by counsel, and a vocational expert. (R. 37-87). On April 14, 2011, the ALJ found that Plaintiff is not disabled and is capable of performing jobs that exist in significant numbers in the regional and national economy. (R. 30-31). The Appeals Council denied Plaintiff's request for review on May 22, 2012. (R. 1-5).

Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. In his brief, Plaintiff argues that the ALJ erred in four respects: (1) failing to consider certain severe impairments at Step 2 of the analysis; (2) mischaracterizing and failing to give controlling weight to the opinion of treating physician Dr. Branovacki; (3) finding Plaintiff only partially credible; and (4) not finding Plaintiff's RFC to be more restricted as to his physical limitations concerning lifting, repetitive motions, and standing, as well as his non-exertional and mental limitations.


Plaintiff was born on June 18, 1965 and was 42 years old on his alleged disability onset date. (R. 30). He completed two years of college. (R. 30, 197). Plaintiff worked as a tractor-trailer truck driver from the time he completed truck driving school in 1994 until he was injured on the job in March 2008. (R. 30, 190, 197). His job consisted of driving and unloading trucks; breaking down, separating, and picking up loads; heavy lifting and placing of loads onto docks or pallets; and breaking down boxes. (R. 190).

A. Plaintiff's Medical History

1. Right Knee Injury

Plaintiff states in his application for benefits that he was injured at work on March 18, 2008. (R. 189). The earliest documentation in the case record is an MRI of Plaintiff's right knee, taken on April 1, 2008, which revealed a low to mid-grade injury of the medial collateral ligament, mild irregularity of the medial meniscus, a bone contusion, joint effusion, bursitis, subluxation of the patella, mild chondromalacia of the patellofemoral joint, and mild thinning of the medial patellar retinaculum. (R. 283-84).

Three weeks later, on April 21, 2008, Plaintiff was evaluated by Dr. Ram Aribindi, MD of Southland Bone & Joint Institute, who noted that Plaintiff complained of left elbow and right knee pain after tripping over a pallet at work. (R. 460). Dr. Aribindi's physical examination of the right knee showed some tenderness over the medial joint line and over the MCL origin over the medial epicondyle region, no medial joint line opening with valgus stress to the knee, no tenderness laterally, good flexion and extension of the knee, and a negative Lachman's test. ( Id. ). Dr. Aribindi noted that the MRI revealed a sprain of the medial collateral ligament (MCL) and chondromalacia of the patella (inflammation of the kneecap). (R. 461). The doctor recommended Naproxen, home exercise, physical therapy, and modified work duties, including refraining from squatting or kneeling on the right knee. (R. 461, 472).

At a follow-up visit on May 12, 2008, Plaintiff continued to complain of pain over the anterior aspect of his right knee with prolonged sitting as well as some pain with stairs. Dr. Aribindi's examination showed no effusion, no pain with varus or valgus stress to the knee, good flexion and extension, and a negative Lachman's test. (R. 459). Dr. Aribindi's treatment plan for the knee consisted of losing weight and keeping fit, including home exercise, and taking Naproxen intermittently as needed. ( Id. ). He cleared Plaintiff to return to work the next day. ( Id. ).

Plaintiff attended four physical therapy sessions at Southland Bone & Joint Institute in late April and early May 2008, and he was discharged from physical therapy on June 2, 2008 "as [he] did not represent to therapy." (R. 482-91). At his last session on May 8, 2008, Plaintiff reported "doing better overall" with "mild knee discomfort." (R. 484).

On May 18, 2008, Plaintiff was examined by Dr. George Branovacki, MD of Midwest Orthopaedic Consultants. (R. 527). Dr. Branovacki's exam found a normal left elbow, while the right knee showed mild effusion with pinpoint tenderness over the tibial plateau by the MCL insertion, pain with valgus stressing on the medial side of the knee, no instability of the knee, full range of motion, and ability to straight leg raise. ( Id. ). The doctor concluded that the elbow had recovered but that the right knee has an MCL sprain, for which he recommended rehabilitation and a knee brace. (R. 528). At a follow-up visit on June 9, 2008, Plaintiff continued to complain of knee tenderness, although he reported that "his pain is getting better." ( Id. ). He began physical therapy with Midwest Orthopaedic on June 11, 2008 and continued until August 18, 2008. (R. 378-82). On July 7, 2008, Plaintiff was still experiencing some pain and discomfort, for which Dr. Branovacki recommended a larger brace and continued physical therapy. (R. 525).

However, on August 18, 2008, Dr. Branovacki recommended knee arthroscopy after six months of "failed conservative management" and an MRI that "does confirm some small meniscus tears and some inflammation that is from an effusion and chondral injury." (R. 526). Plaintiff preferred to continue non-operative management for another month, but on September 22, 2008 he complained of knee pain such that "he can barely walk." ( Id. ). Dr. Branovacki referred Plaintiff for a left knee MRI and right knee arthroscopy, but also stated, "We can set up knee arthroscopy for both knees as well." ( Id. ).

An MRI of the right knee on September 9, 2008 showed a small bone contusion at the lateral tibia with improvement since April 2008, small joint effusion, mild degenerative changes, and abnormal signal intensity of the medial meniscus unchanged since prior examination and most likely representing degenerative fibrillation. (R. 363). An MRI of the left knee on September 28, 2008 showed small joint effusion with a small cyst, vertical tear of the junction of the posterior horn and mid body of the medial meniscus, marrow edema consistent with contusion, and a nonspecific edema. (R. 361).

At a follow-up visit on October 9, 2008, Dr. Branovacki noted that both of Plaintiff's knees "are acting up significantly, " and the MRIs "confirm meniscus tears medially in both knees as well as a significant amount of knee effusion." (R. 523). Plaintiff agreed to bilateral knee arthroscopic surgery. ( Id. ).

2. Bilateral Knee Surgery and Post-Operative Infection

On November 14, 2008, Dr. Branovacki performed a bilateral knee arthroscopy, with bilateral chondroplasty, right medial meniscus partial medial meniscectomy, and bilateral injection of steroid to the knees. (R. 288-90). There were no complications and Plaintiff was stable post-surgery. ( Id. ).

On December 19, 2009, Plaintiff's therapist sent him to Dr. Branovacki's office due to some fluid drainage in the right knee, which was bandaged until his previously scheduled appointment with the doctor a few days later. On December 23, 2008, Plaintiff complained of pain and swelling, and Dr. Branovacki aspirated the knee and gave Plaintiff a prescription for antibiotic Keflex, which Plaintiff did not fill. (R. 294).

On December 26, 2008, Plaintiff presented to Christ Hospital Emergency Room with severe right knee pain, ongoing for several days, which prevented him from standing. (R. 292). Dr. Sampath Kumar diagnosed Plaintiff with septic (infectious) arthritis and gave him IV antibiotics and pain medication. (R. 291, 294). A culture showed Proteus, Staph Aureus, and MRSA infections. (R. 291). Arthroscopic irrigation and debridement was performed by Dr. Daniel Troy on December 27 and by Dr. Richard Lim on December 29. (R., 294, 303-07). Plaintiff was discharged on December 31, 2008 with six weeks of IV antibiotics. (R. 291, 294, 812-13).

Plaintiff continued to see Dr. Branovacki for follow-up treatment in January and February 2009 and was prescribed Flexeril and Norco during this time period. (R. 400-14, 1219-23). On February 27, 2009, Plaintiff underwent a venous Doppler ultrasound of his right arm which revealed a thrombosis of the right axillary vein caused by the placement of the PICC line which was used to deliver the IV antibiotics. (R. 429, 431). A Doppler of his right lower leg revealed no evidence of thrombosis. (R. 442). Plaintiff was admitted to Ingalls Hospital where his arm thrombosis was treated with Coumadin and Arixtra. (R. 431, 438). While at Ingalls, Plaintiff was evaluated for other ailments, including right knee pain. (R. 438-39).

3. Ongoing Knee Pain

Plaintiff continued to complain of right knee pain throughout 2009, and underwent physical therapy in early 2009. On April 3, 2009, a physical therapy progress report stated that Plaintiff experiences soreness in his left knee at a level of 4.5 out of 10 in the morning and none otherwise, and in his right knee at a level of 6.5 out of 10 in the morning and otherwise 4 or 5 out of 10. (R. 370-72). The report also noted that Plaintiff has continued swelling, poor balance, good strength, and can walk short distances. (R. 372). Over the course of June 2009, Plaintiff received five Supartz injections to his right knee, and by the second injection he had no tenderness or swelling and no change in his range of motion. (R. 511-14).

On June 5, 2009, Plaintiff met with pain specialist Faris Abusharif, MD for an initial consultation. (R. 645-47). Dr. Abusharif discontinued Plaintiff's use of Norco, and started him on Ultram, Neurontin, and Voltaren gel for his knee pain. (R. 647). On June 9, 2009, Plaintiff met jointly with Dr. Abusharif and pain psychologist Peter Brown, Psy.D. (R. 506-07). Dr. Brown noted that Plaintiff "is demonstrating a high degree of discouragement or identification with the disabled role" and "believes that treatment is something that is done to him, rather than something he participate in." (R. 506). He further noted that Plaintiff's "coping style is difficult to treat" and recommended a two-month treatment strategy of meeting jointly with the pain physician and pain psychologist, followed by meeting with the pain psychologist only to convert the physician's instructions "into protocols with emphasis on [the] patient's role and responsibilities." (R. 506-07). At Plaintiff's next visit on July 22, 2009, he met with Dr. Brown and Dr. Abusharif who reviewed an increased activity protocol with Plaintiff focused on walking. (R. 503-04).

When he saw Dr. Branovacki on July 27, 2009, Plaintiff had ceased using narcotic pain medication and complained of right knee and back pain and left knee discomfort. (R. 509). Dr. Branovacki examined the right knee and noted "a normal exam with no effusion and no warmth, " "good range of motion, " and "tender to palpation." ( Id. ). He "offered [Plaintiff] a Medrol Dosepak to see if this helps him and [noted] he will be on maintenance steroids for a short time." ( Id. ). He also cleared Plaintiff to return to work for a trial of sedentary administrative duty. ( Id. ).

4. Consulting Assessments for Benefits Application

Upon referral from Dr. Branovacki, physical therapist Amy Beckman performed a Functional Capacity Evaluation (FCE) of Plaintiff on April 22, 2009. (R. 367-69). Ms. Beckman concluded that Plaintiff "provided sub-maximal physical effort during testing, " meaning that he "may be able to do more physically at times than was demonstrated during this testing day." (R. 367-68). Along similar lines, Ms. Beckman concluded that "[o]verall test findings, in combination with clinical observations, suggest considerable question be drawn as to the reliability/accuracy of [Plaintiff's] subjective reports of pain/limitation." (R. 368, 369). She noted that Plaintiff is not capable of resuming work as a truck driver at this time, but heart rate analysis with fitness testing indicates he can perform work at the medium physical demand level, although currently restricted to lifting no more than 5 pounds with his right arm due to his thrombosis. (R. 368). She further noted that the right arm restriction prevents her from determining Plaintiff's lifting tolerance at this time. ( Id. ). Ms. Beckman recommended a trial of work conditioning and referral to a pain program. (R. 369).

On July 31, 2009, Dr. Vidya Madala completed a Physical Residual Functional Capacity Assessment for the Illinois Bureau of Disability Determination Services ("DDS") based on a diagnosis of bilateral arthroscopies of the knees. (R. 492). She concluded that Plaintiff can occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, stand and/or walk (with normal breaks) at least 2 hours in an 8-hour work day, sit (with normal breaks) about 6 hours in an 8-hour work day, and is limited in his ability to push and/or pull in his lower extremities. (R. 493). Dr. Madala noted that Plaintiff had bilateral arthroscopy in November 2008 and right knee arthroscopy and debridement in December 2008; began physical therapy in January 2009; requires assistance with walking due to knee weakness; and "appears" to have "reached maximal benefit" as of April 30, 2009. ( Id. ). Due to his knee problems, she found that Plaintiff is frequently limited in balancing and stooping; occasionally limited in climbing ramps or stairs, kneeling, crouching, and crawling; and is never able to climb ladders, ropes or scaffolds. (R. 494). Finally, she found that Plaintiff has no manipulative, visual, communicative, or environmental limitations, except that he should avoid concentrated exposure to hazards such as machinery and heights due to his knee problems. (R. 495-96). Dr. Madala noted Plaintiff's complaints of pain and fatigue, including that he has severe pain in both knees that prevents him from ...

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