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Gasko v. Berryhill

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

May 8, 2017

GARALD GASKO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, [1]Defendant.



         Garald Gasko seeks Disability Insurance Benefits (“DIB”) based on his claim that the combination of his cataracts, asthma, and back, knee, and vision problems renders him unable to perform full-time work. After the Commissioner of the Social Security Administration (“SSA”) denied his application, Gasko filed this suit seeking judicial review. See 42 U.S.C. § 405(g). Before the court are the parties' cross-motions for summary judgment. For the following reasons, Gasko's motion is denied and the government's is granted:

         Procedural History

         Gasko filed his DIB application on September 11, 2012, claiming a disability onset date of July 30, 2008. (Administrative Record (“A.R.”) at 212-17.) After his claim was denied initially and upon reconsideration, (id. at 100-10), Gasko sought and was granted a hearing before an Administrative Law Judge (“ALJ”), which took place over two days on February 11, 2014, and February 18, 2015, (id. at 25-99). On April 27, 2015, the ALJ issued a decision concluding that Gasko is not disabled and therefore not entitled to DIB. (Id. at 9-24.) When the Appeals Council denied Gasko's request for review, (id. 1-6), the ALJ's decision became the final decision of the Commissioner, see Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015). Gasko filed this lawsuit seeking judicial review of the Commissioner's final decision, see 42 U.S.C. § 405(g), and the parties have consented to this court's jurisdiction, see 28 U.S.C. § 636(c); (R. 8).


         Because Gasko seeks DIB, he must show that he was disabled prior to his date last insured, September 30, 2008. See 20 C.F.R. § 404.131(a); Liskowitz v. Astrue, 559 F.3d 736, 740 (7th Cir. 2009). Gasko claims that he became disabled exactly two months before his insured status expired, but at his hearings before the ALJ he was unable to provide any medical records that pre-date 2011. Despite the dearth of any medical evidence from the relevant time period, the ALJ took testimony from Gasko and a medical expert at the first hearing and from two additional medical experts at the second hearing.

         A. The February 2014 Hearing

         At his first hearing before the ALJ, Gasko appeared with a representative who informed the ALJ that he had been unable to obtain any medical records from the time period prior to Gasko's date last insured. (A.R. 52-54.) The ALJ nonetheless took documentary evidence from 2011 through 2013 and heard testimony from Gasko and a medical expert before continuing the hearing to allow Gasko more time to secure his medical records from before 2011.

         1. Medical Records

         The medical records Gasko provided at his first hearing show that between 2011 and 2013 Gasko sought treatment for back, knee, finger, and ankle pain on several occasions, and his weight hovered around 345 pounds. (A.R. 319-20, 324-25.) He was treated with pain medication, and on at least one occasion, a muscle relaxant. (Id. at 317, 320, 385.) One doctor classified his knee pain as a product of osteoarthritis and another noted that it was accompanied with effusion. (Id. at 317, 324.) It was later revealed that Gasko had a history of chronic obstructive pulmonary disorder (“COPD”). (Id. at 325.) In 2013, another doctor diagnosed Gasko as having diabetes mellitus. (Id. at 381.)

         The records also reflect hearing and vision complications. In December 2011 Gasko complained of bilateral hearing loss which had persisted for a year. (Id. at 318.) After his ears were cleaned he reported that his hearing returned. (Id.) In May 2013 Gasko complained of foggy vision to an optometrist, who noted that Gasko had possible cataracts. (Id. at 340.) Gasko followed up with another specialist, who examined Gasko and found that he had significant cataracts as well as floaters in the eye.[2] (Id. at 341.) Gasko's vision was recorded as 20/200 in his right eye and 20/30 in his left eye. (Id. at 346.) In August 2013 Gasko underwent cataract surgery. (Id. at 369.)

         In February 2013, at the behest of the Bureau of Disability Determination Services (“DDS”), Dr. Richard Bilinsky reviewed Gasko's records to help determine his residual functional capacity (“RFC”). (Id. at 105-09.) Dr. Bilinsky determined that Gasko's file did not contain sufficient medical records from before the date last insured to allow him to assess Gasko's disability status or his RFC during the relevant time period. (Id. at 108.)

         2. Gasko's Hearing Testimony

         Gasko described his work history and his symptoms. Gasko testified that he graduated from high school in 1969 and then completed two years of courses at a community college before dropping out. (Id. at 55-56, 80.) Gasko reported in his Disability Report that he enrolled in a post-secondary education program at a tool and dye trade school, which he completed in 1971. (Id. at 240.) Gasko stated that he started work as a laborer in 1971, constructing high-rise buildings, which required him to lift objects weighing up to 125 pounds. (Id. at 56-57.) He worked as a construction laborer until 1979, when he switched to plumbing work, which he performed until 1992. (R. 57-58.) Gasko testified that he was laid off in 1992, but worked intermittently as a laborer until 2008. (Id. at 60-61.) Gasko reported that he had no earnings in 1993 through 1995, 2002, 2003, 2007, and 2009 through 2013. (Id. at 59-62, 226.)

         Gasko testified that since 2008 his pain has prevented him from working. (Id. at 63.) In describing his pain, Gasko said that he experiences numbness in his hands which travels up his arms through his shoulders and down his back and tailbone, causing pain and a “pins and needles” sensation. (Id. at 63-65.) Gasko stated that he experiences additional pain in his left hip and ankle and in both of his knees. (Id. at 71.) Gasko ...

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