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Kolaites v. Colvin

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

January 4, 2017

SAM KOLAITES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          Michael T. Mason United States 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 Sam Kolaites's claim for Disability Insurance Benefits and Supplemental Security Income. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Kolaites has moved for summary judgment. (Doc. No. 10.) For the reasons that follow, Kolaites's motion for summary judgment is GRANTED.



         Kolaites applied for benefits on May 17, 2012, alleging disability since February 14, 2011 due to a torn meniscus in his right knee, two knee surgeries, and a temporomandibular joint (“TMJ”) derangement and tear. (R. 180, 232.) Kolaites's claim was denied initially and upon reconsideration, after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). (R. 122.) At a hearing held on February 24, 2014, Kolaites personally appeared and testified before the ALJ. (R. 32-55.) On August 20, 2014, the ALJ issued a decision denying Kolaites's claim for benefits. (R. 9- 21.) When the Appeals Council denied his request for review, the ALJ's decision became the final decision of the Commissioner, reviewable by the district court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).


         A. Treatment Records

         Kolaites, who was 61 years old at the time of his ALJ hearing, had surgery on his right knee in 2007. (R. 426.) In October 2010, Kolaites was involved in a workplace accident at the Aldi store when a 30-pound carton of frozen food fell from an unstable pallet and struck him in the right side of his jaw. (R. 178; 370.) The blow injured his jaw and caused him to fall and twist his right knee, reinjuring it. (R. 178, 390.) The next day he saw Dr. John E. Christofersen at Dreyer Medical Clinic, the medical clinic preferred by his employer for workplace injuries. (R. 77, 390-91.) Kolaites reported that his knee pain was even greater than it had been prior to his 2007 surgery. (Id.) The doctor diagnosed a probable strain of the medial collateral ligament and a contusion (bruise) of the jaw, prescribed naproxen, and released him to work on modified duty. (R. 391.) At a follow up appointment on November 3, Kolaites indicated that his knee and jaw both continued to cause significant pain. (R. 398-99.) Dr. Christofersen prescribed prednisone and referred him to physical therapy. (R. 399.) He completed four sessions of physical therapy for his knee in November 2011. (R. 298-99, 393-97, 401-10.) At his next appointment with Dr. Christofersen on November 10, he reported that he had gradual improvement in his knee with physical therapy, but still experienced continued pain and grinding in his jaw. (R. 412.) He was referred to ear, nose, and throat doctor Richard L. Kersch, who in turn referred him for an oral surgery evaluation. (R. 414, 633.)

         An MRI taken of Kolaites's knee on December 8, 2010 resulted in a diagnosis of a knee sprain with small effusion and possible medial meniscal tear, but overall no significant change from a February 2007 examination. (R. 602-03.) An orthopedist who reviewed the MRI agreed with the radiologist and diagnosed a meniscal tear. At that point, Kolaites was given an expedited referral to one of the Dreyer Clinic's orthopedic surgeons to discuss surgical options. (R. 424.) At a consultation with orthopedic surgeon Dr. Neena Szuch on January 12, 2011, Kolaites elected to proceed with arthroscopy with partial medial meniscectomy, despite some increased risks posed by his history of previous surgery to the same knee. (R. 426-27.) Dr. Szuch performed arthroscopic surgery on February 14, 2011. (R. 429-30.)

         Kolaites resumed physical therapy for his knee February 22, 2011 and attended 29 sessions between then and July 2011, with only one break from therapy pursuant to the advice of his jaw surgeon. (R. 431, 486, 563.) At a follow-up appointment on March 23, 2011, Dr. Szuch indicated that he could go back to work beginning April 4 provided that he not stand for more than four hours at a time and that he avoid bending, kneeling, twisting, or lifting greater than twenty pounds. (R. 681.) As discussed below, his intervening jaw surgery delayed his return to work until May 2, 2011. (R. 484, 486.)

         In any event, despite his doctor's recommendations that he not stand for more than four hours at a time, Kolaites returned to full-time work of up to ten hours a day, which caused continued pain with his knee. (R. 486.) On May 18, 2011, Dr. Szuch noted that Kolaites was reporting pain, had a reduced range of motion, and walked with a slight limp. (R. 487.) She again recommended that he work no more than four hours per day, with no bending, kneeling, twisting and no lifting greater than twenty pounds. (R. 487.) Kolaites reduced his hours to 20 per week, but was uncertain whether he would be able to return to full-time work when modified duty was no longer available. (R. 489, 497, 501-02, 513.) Kolaites reported to his doctor on June 8, 2011 that when he was working part-time he would get sore after about three hours of work. (R. 517.) Dr. Szuch advised that he continue with only part-time work if that was available to him. (Id.) His physical therapist also agreed that he could not tolerate his previous full-time work schedule. (R. 516.) On June 23, Kolaites reported to his physical therapist that he had sat for one and a half hours the day before, the longest he had remained sitting since the surgery, and was still feeling stiff a day later. (R. 536.) On July 5, the therapist noted that “overall” Kolaites did “not feel much better, pain level is down since he is not working but the same things still cause pain, ” such as sitting then trying to get up, bending the knee to put on pants, and using stairs. (R. 556.)

         Notes dated July 6, 2011 from Dr. Szuch reflect that Kolaites's right knee was still sore and stiff with activity, generated throbbing pain after periods of standing, and felt best at rest. (R. 560.) Nonetheless, his doctor noted that he “wishe[d] to resume his regular work schedule in the near future.” (Id.) He ended his course of physical therapy on July 7 with plans to return to regular work the following week. (R. 563.) On July 27, 2011, Dr. Szuch continued to recommend restriction to a four-hour workday because a full work schedule had caused his knee to swell. (R. 568.) She also referred him for a Functional Capacity Evaluation (FCE). (Id.) The FCE, which was performed on August 25, revealed that Kolaites was found capable of lifting up to 45 pounds occasionally and 35 pounds frequently, which left him unable to meet some of the lifting, carrying, kneeling, and crouching demands of his job as a manager at the Aldi grocery store where he worked. (R. 571-72.) The examiner stated that Kolaites gave full effort and that his reports of limitations and pain were consistent with his actual limitations and observed behaviors. (R. 572.) His heart rate and rapid-exchange grip test also demonstrated a full level of physical effort. (R. 575.) The examiner also observed that Kolaites “had increased pain and difficulty with daily activities after 2 hours of testing, ” and suggested than any return to full-time duties should be discussed with his physician. (R. 572.)

         At an appointment with Dr. Szuch on August 31, 2011, Dr. Szuch released Kolaites to work with 45- and 35-pound lifting restrictions, with no right side kneeling and only short periods of crouching. (R. 583, 687.) She opined that he was unable to work if modified duty was not available. (R. 583, 687.) On September 30, 2011, Dr. Szuch further clarified those work restrictions, writing, “all physical work can only be done for up to 4-hour shifts per day. If he is given sedentary work, that could be performed without restriction in regard to work hours.” (R. 585.)

         Despite Dr. Szuch's recommended restrictions, Kolaites was sent to an independent medical examiner who opined that he required no restrictions. (R. 597.) Because he had used up the six weeks of modified duty available to him through his employer, he returned to full-duty work. (R. 55, 597.) On February 23, 2012, during his third day back at work full-time, Kolaites's right knee gave out while he was unloading a 40-pound item from a pallet. (R. 588, 591, 597.) A visit to the Dreyer Medical Clinic confirmed “obvious swelling” and some tenderness in the right knee, and Kolaites could bear weight on that knee only with “significant discomfort.” (R. 588-89.) An X-ray taken that same day revealed no change from the degeneration already visible on his October 2010 image. (R. 601.) He was prescribed naproxen and released to work with “sitting mainly, ” with “no prolonged standing or walking” and no climbing, bending, stooping, and kneeling, no floor-level lifting and no lifting in excess of ten pounds. (R. 589.) By March 1, 2012, his pain had not improved, but there was no obvious swelling. (R. 591- 92.) His work restrictions were loosened to “alternate sitting/standing” with no climbing, bending, stooping, kneeling, or lifting more than twenty pounds. (R. 592.) On March 8, 2012, Kolaites was unable to fully flex his knee and could extend it straight only with pain. (R. 495.) He was referred back to orthopedist Dr. Szuch, who on March 14, 2012 attributed his re-injury to work activity that exceeded his tolerance. (R. 598.) In her treatment plan, she wrote, “we once again recommend the same formal restrictions that were put in place before, ” limiting “physical work” to “up to a four hour shift per day, ” otherwise “on restricted sedentary work.” (R. 598.)

         While addressing his knee pain through arthroscopic surgery and physical therapy, Kolaites also endured three surgeries and two courses of physical therapy for the ongoing pain in his jaw. Dr. Herbert D. Stith, an oral and maxillofacial surgeon, examined Kolaites's jaw on December 1, 2010 and noticed an audible grinding in the right TMJ, together with popping and clicking. (R. 370.) He referred Kolaites to physical therapy for the jaw, but after four visits Kolaites stopped because of lack of improvement. (R. 370, 729.) In December 2010, an MRI provided strong evidence for a central perforation or tear in the anterior and posterior aspects of the meniscus, which were separated. (R. 371, 618.) Dr. Stith recommended arthroscopy, but explained that further surgery might still be required in the future to repair or remove the disc. (R. 371.) On February 1, 2011, Dr. Stith again examined Kolaites and found that he could not move his jaw to the right or open it more than 25 millimeters. (R. 372.) Kolaites agreed to arthroscopic surgery, which Dr. Stith performed on February 3, 2011. (R. 372-374.) However, treatment notes from Dr. Stith dated April 12, 2011 acknowledge that, even after arthroscopy and additional physical therapy, Kolaites's jaw pain persisted, especially with eating. (R. 376.) In May 2011, his dentist reported that the trauma to his jaw and subsequent surgeries had changed Kolaites's bite so as to loosen one crown and damage other dental work. (R. 721.)

         After discussing his options with the oral surgeon, Kolaites elected to have a second surgery, an open-joint disc plication, which was performed by Dr. Stith on June 25, 2011. (379-381.) A September 2012 MRI of his TMJ displayed numerous degenerative changes to the right TMJ. (R. 653.) After he achieved no pain relief from the second jaw surgery, Kolaites again met with Dr. Stith on January 14, 2013 to discuss his remaining option: total removal of the TMJ disc and reconstruction of the jaw using a partial prosthetic joint. (R. 655, 657.) Because of his continued pain and difficulty eating, Kolaites wished to go through with the surgery, which was performed by Dr. Stith on January 23, 2013 and required an overnight hospital stay. (R. 657-660, 697-709.) This surgery necessitated further corrective dental work later in 2013. (R. 722.) Kolaites also attended additional physical therapy for his jaw. (R. 730.) After sixteen post-surgical sessions of physical therapy for his jaw, his physical therapist reported on June 4, 2013 that his jaw opening had actually decreased, and he had difficulty with chewing. She concluded that Kolaites was “not making much progress” despite the treatments. (R. 730.)

         B. Consultants' Reports

         Dr. Greg Papiez, a consultative examiner, reviewed portions of Kolaites's file and examined him on October 6, 2012. (R. 638.) Dr. Papiez found that Kolaites had right knee pain with moderately reduced flexion and jaw pain with a painful range of motion. (R. 642.) Kolaites also demonstrated moderate difficulty walking on his toes, heel-toe ...

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