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Cichon v. Colvin

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

March 7, 2014

DAVID CICHON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.

MEMORANDUM OPINION AND ORDER

MARIA VALDEZ, Magistrate Judge.

This action was brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security denying plaintiff David Cichon's ("Cichon" or "Claimant") claim for Social Security Disability benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Cichon's motion for summary judgment [Doc. No. 23] is granted in part and denied in part. The Government's motion for summary judgment [Doc. No. 25] is denied. The Court finds that this matter should be remanded to the Commissioner for further proceedings.

BACKGROUND

I. PROCEDURAL HISTORY

Claimant originally filed a Title II application for Disability Insurance Benefits and a Title XVI application for Supplemental Security Income on January 5, 2009 based on pain resulting from multiple fractures of his left leg. (R. 159-69) In both applications, Claimant alleged disability beginning August 1, 2007. (R. 159, 162.) Claimants's claims were initially denied on July 14, 2009. (R. 64-65.) The claims were again denied upon reconsideration on December 16, 2009. (R. 66-67.) Claimant filed a timely request for a hearing by an Administrative Law Judge ("ALJ"), which was held on February 25, 2011. (R. 38.) Plaintiff personally appeared and testified and was represented by counsel. (R. 38.) A vocational expert ("VE"), Dr. Richard Hamersma, also testified at the hearing. (R. 38.)

On March 8, 2011, the ALJ denied Claimant's claim for benefits and found him not disabled under the Social Security Act. (R. 31.) The Social Security Administration Appeals Council denied Claimant's request for review on September 28, 2011, (R. 5-7, ) leaving the ALJ's decision as the final decision of the Commissioner and therefore reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).

II. FACTUAL BACKGROUND

A. Cichon's Background

Cichon was born on April 25, 1962. (R. 162.) At the time of the hearing, he was forty-eight years old, living with his mother, and was not employed. (R. 42-43.) Cichon has no minor children. (R. 42.) He is a high school graduate and has no special training. (R. 43.) Cichon fractured bones in his left leg multiple times between 2007 and 2009. (R. 40.) He has not worked since he originally fractured his ankle in 2007. (R. 43.) Plaintiff previously worked as a laborer in underground construction, a delivery person for a wholesale meats company, an installer for a home security company and a maintenance engineer, in addition to performing various hourly jobs. (R. 194.) Plaintiff's labor history ends in 2006, roughly a year before he sustained his injury. ( Id. )

B. Testimony and Medical Evidence

1. Cichon's testimony

Cichon testified that he is able to do light housework, albeit more slowly than before he fractured his ankle due to his need for frequent breaks. (R. 44-45.) Sitting for more than 45 minutes causes Cichon discomfort. (R.46.) It is painful for him to stand for over 30 minutes. ( Id. ) He cannot walk more than a block and a half. ( Id. ) He can lift around twenty pounds on his right side, but avoids lifting anything on his left side to prevent placing stress on his left leg. (R. 47.) He occasionally visits a friend who lives nearby. (R. 46.)

To manage his pain, Cichon takes Aleve every morning and rubs Aspercreme on affected areas three or four times a day to help limit the pain in his leg. (R. 46.) He also does stretching exercises to help with pain. (R. 45.) The exercises typically last around 30 minutes. (R. 47.) He has not been to the doctor since 2009 because he lacks insurance. (R. 45.)

2. Medical evidence

On August 27, 2007, Dr. Oscar Schiappa issued an operative report detailing his pre- and post-operative of assessment of Cichon's leg. (R. 285.) Schiappa's report indicates that Cichon had a three to four week-old fracture of his lateral malleolus. ( Id. ) Schiappa performed an operation on Cichon, manipulating his malleolus, performing a closed reduction of the bone, and applying a short-leg cast. ( Id. ) Cichon was directed to keep the cast elevated and to bear partial weight as his leg would tolerate; the cast was scheduled to be removed three weeks from the date of surgery. ( Id. )

Cichon presented to Oak Forest Hospital on September 17, 2007. (R. 283.) He was walking on crutches and reported 5/10 pain in his leg. ( Id. ) The notes observe that Cichon was suffering from osteoarthritis and he was instructed to return in two weeks to have the cast removed. ( Id. ) Cichon's cast was removed on October 1, 2007. ( Id. ) At a follow up exam on October 21, 2007, Cichon was ambulating (walking) well and denied swelling, although he complained of 5/10 pain "on and off." (R. 282.) Cichon returned for another follow up visit on February 15, 2008. (R. 280.) He continued to complain of pain as 5/10, including during extended periods of standing or when he was at rest. ( Id. )

On October 11, 2008, Cichon was seen at the emergency room claiming that he had fallen down the stairs ten days earlier and that pain in his left ankle and left knee had not improved during that time. (R. 249.) Cichon was prescribed Naproxin and x-rays were taken. ( Id. ) X-rays of Cichon's left ankle showed a complete oblique fracture of the distal fibula with relatively undisplaced fracture fragments. (R. 256.) X-rays of his left knee revealed a lateral tibial plateau fracture of the proximal tibia. (R. 257.) X-rays taken during a November 14, 2008 visit to the podiatry clinic displayed comminuted fractures of the lateral malleolus with soft tissue swelling. (R. 255.) Cichon reported 0/10 pain in his ...


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