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Gehrke v. Colvin

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

September 22, 2014

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


SIDNEY I. SCHENKIER, Magistrate Judge.

Plaintiff Carl Gehrke has filed a motion for summary judgment seeking reversal and remand of the final determination of the Commissioner of Social Security ("Commissioner") to the extent it denied him Disability Insurance Benefits ("DIB") beyond a closed period of approximately eighteen months (doc. #25). The Commissioner has responded with its own motion for summary judgment seeking affirmance of the Administrative Law Judge's decision (doc. #33). For the following reasons, the Court grants Mr. Gehrke's motion and denies the Commissioner's motion.


Mr. Gehrke filed for DIB on November 5, 2009, alleging that he became unable to work on March 7, 2007 due to depression and a knee injury (R. 109). His application was denied initially on April 7, 2010, and again upon reconsideration on August 4, 2010 (R. 75, 81). Mr. Gehrke then requested, and was granted, a hearing before an Administrative Law Judge ("ALJ"), which took place on May 31, 2011 (R. 29-72). The ALJ issued an opinion granting partial benefits on July 18, 2011 (R. 13-22). The Appeals Council then denied Mr. Gehrke's request for review, making the ALJ's ruling the final decision of the Commissioner (R. 1-3). See Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).


We begin with a summary of the administrative record. Part A briefly sets forth Mr. Gehrke's background, followed by his medical record in Part B. Part C discusses the hearing testimony, and Part D sets forth the ALJ's written opinion.


Mr. Gehrke was born on November 15, 1963, and was 47 years old at the time of the hearing (R. 33, 73). He is married and has two children (R. 34). He has a tenth grade education and spent much of his early career training race harness horses (R. 50). He then worked as a truck driver, bus driver and document shredder (R. 51-52). Mr. Gehrke's last job was with Walker Processing, for whom he did a bit of "everything, " including working a drill press, sandblasting and driving a fork lift (R. 52-53). In March 2007, Mr. Gehrke injured his right knee on the job (R. 231).


The medical record commences on March 12, 2007 with a report from Howard Freedberg, M.D., an orthopedic surgeon (R. 231-32). Dr. Freedberg indicated in his medical notes that Mr. Gehrke claimed to have suffered a job site injury to his knee on March 1, 2007, and that an x-ray performed at a medical clinic revealed a chip fracture of the right patella (R. 231). Dr. Freedberg ordered additional x-rays and noted the possibility of a patellar fracture and subluxation (improper tracking of the kneecap) (R. 232). Mr. Gehrke had follow-up appointments with Dr. Freedberg every few weeks during the Spring of 2007, including one on May 14, 2007 in which Mr. Gehrke reported that his knee pain was almost gone (R. 236). Dr. Freedberg released him from his care on that date and cleared him to return to work (R. 237).

Mr. Gehrke's knee pain returned in short order upon his return to work, so he followed-up again with Dr. Freedberg, who concluded by July 2007 that Mr. Gehrke had "failed conservative measures" and that arthroscopic surgery was indicated (R. 240). Dr. Freedberg performed an arthroscopic procedure in August 2007 that resulted in a diagnosis of "right knee status post patellar subluxation in conjunction with medial femoral condylar damage" (R. 242). Mr. Gehrke continued to have significant pain in both his knee and his back, leading Dr. Freedberg to note that he was "extremely surprised [with]... the very poor motion Patient has today. I am not sure if this is his inability to tolerate pain, or any developing CRPS [Complex Regional Pain Syndrome]. He understands the gravity of his predicament" (R. 243).[3] X-ray studies at that point in time indicated normal alignment and no evidence of a fracture, dislocation, or any other bony or soft tissue lesion ( Id. ). Mr. Gehrke had a follow-up appointment on October 17, 2010, at which time Dr. Freedberg expressed frustration over Mr. Gehrke's failure to comply with his exercise program and opined that rehabilitation of the knee would be "a long uphill climb" (R. 245).

Dr. Freedberg performed a second surgery in October 2007 to straighten out Mr. Gehrke's knee under anesthesia. At this point, his diagnosis was right knee arthrofibrosis (R. 247).[4] At an examination on November 1, 2007, Dr. Freedberg wrote into his notes that Mr. Gehrke had "put himself behind the eight ball" and that he would have to work "a hundred times harder than anybody else" to improve ( Id. ). Dr. Freedberg attributed Mr. Gehrke's lack of progress to his unwillingness to work hard in physical therapy, resulting in arthrofibrosis (R. 249).

In December 2007, Mr. Gehrke reported that he took a wrong step and exacerbated his knee condition (R. 362). Dr. Freedberg evaluated the knee and stated that surgery was indicated if the knee failed to improve ( Id. ).

In January 2008, Mr. Gehrke sought a second opinion from Dr. Gregory Markarian (R. 607). Dr. Markarian performed a third surgery on Mr. Gehrke's right knee on March 5, 2008 (R. 399). The surgery, a debridement of the right patellar tendon and augmentation, was intended to improve blood flow and repair tissue (R. 421).

On July 8, 2008, Dr. Markarian completed a Notice of Work Status on Mr. Gehrke's behalf that found him unable to work and in need of additional physical therapy three times a week for six weeks (R. 575). Dr. Markarian extended the work restriction once again on August 18, 2008 (R. 570). Both notices included the same diagnoses of medial hamstring tendonitis and kneecap pain.

On September 16, 2008, Dr. Markarian completed a third Notice of Work Status indicating that Mr. Gehrke was able to return to a "light-duty desk job" that involved no heavy squatting or kneeling and no lifting or carrying in excess of 20 pounds (R. 564). He indicated in his notes that Mr. Gehrke had "maxed out in terms of his physical therapy and... [that] permanent restrictions are in order" (R. 565).

On September 22, 2008, Physical Therapist Mike Olson attempted to complete a Functional Capacity Evaluation on Mr. Gehrke following a referral from Dr. Markarian (R. 527-29). Mr. Olson spent 3.5 hours with Mr. Gehrke but ultimately concluded - without inferring intent - that he could not make any recommendations because Mr. Gehrke could not tolerate many of the necessary examinations on account of reported pain (R. 529). Mr. Olson suggested that greater weight be placed on objective rather than ...

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