Thorps v. Astrue, 10 C 5947.

873 F.Supp.2d 995

David THORPS, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 10 C 5947.

United States District Court,

N.D. Illinois,

Eastern Division.

July 9, 2012.

Barry Alan Schultz, Law Offices of Barry Schultz, Evanston, IL, for Plaintiff.

Ernest Yi Ling, United States Attorney's Office, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge.

The plaintiff, David Thorps, seeks review of the final decision of the Commissioner (“Commissioner”) of the Social Security Administration denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Title II of the Social Security Act (“Act”). 42 U.S.C. §§ 423(d)(2); 1314(a)(3)(A), 216(I) and 223(d)(2). Mr. Thorps asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I.PROCEDURAL HISTORY

Mr. Thorps applied for SSI and DIB on July 2, 2007, alleging that he had been disabled since May 11, 2007. (Administrative Record (“R.”) 19). His claims were denied initially on August 16, 2007, and upon reconsideration on November 1, 2007. Mr. Thorps filed a timely request for rehearing on December 14, 2007. (R. 95). An administrative law judge (“ALJ”) convened a hearing on August 14, 2009, at which Mr. Thorps, represented by counsel, appeared and testified. (R. 19). Leanne L. Kehr testified as an impartial vocational expert. On November 24, 2009, the ALJ issued a decision finding that Mr. Thorps was not disabled because he did not have a severe impairment—an impairment that would significantly limit his ability to perform basic work activity—that satisfied the 12–month durational requirement prior to the ALJ's decision. (R. 27). This became the final decision of the Commissioner when the Appeals Council denied Mr. Thorps's request for review of the decision on August 10, 2010. (R. 1–3). See20 C.F.R. §§ 404.955; 404.981. Mr. Thorps has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

II.THE EVIDENCE OF RECORD

A.The Vocational Evidence

Mr. Thorps was born on May 2, 1955, making him fifty four years old at the time of the ALJ's decision. (R. 133). He has four years of college education. (R. 33). He last worked as a health care provider, a job that involved taking care of elderly people and performing various chores, such as washing, cleaning, and cooking. (R. 44). The job ended after only a few months, when Mr. Thorps elected to stop working after the onset of his alleged disability due to a left foot injury on May 11, 2007. (R. 44). Before that, he worked as shuttle driver and a dry cleaner. (R. 70–71). His longest held position was as a janitor and ticket agent with the Chicago Transit Authority. (R. 71, 73).

B.The Medical Evidence

Emergency room records of South Shore Hospital, dated May 13, 2007, and Stroger Hospital, dated May 14, 2007, show the plaintiff sustained a left foot injury on May 12, 2007. (R. 232, 255). On examination, he had tenderness of tissue and bone as well as swelling. (R. 234, 255). X-rays of the left foot showed fracture of the distal left 2nd metatarsal. (R. 236). The attending physician diagnosed fracture of the 2nd metatarsal. (R. 233). File evidence indicates the plaintiff had one follow-up visit at Woodlawn Health Care on June 19, 2007 for left foot fracture. Clinical notation references left foot with 3rd and 4th metatarsal fracture. (R. 244). The attending physician diagnosed left metatarsal fracture and told plaintiff to return in three weeks. (R. 245).

The plaintiff also had follow-up care at the Stroger Hospital on June 6, 2007. (R. 252). He had another follow-up visit on June 20, 2007, in which x-rays were ordered for follow-up 2nd left metatarsal neck fracture. X-rays of the left foot showed progression of healing. (R. 250). Clinical notes reference an ankle fracture, but the addenda indicate x-ray results for only 2nd left metatarsal fracture. (R. 253). On July 3, 2007, plaintiff complained of pain, but admitted that he was not taking medication as prescribed. Physical examination showed intact nerves and no open lesions or edema. (R. 251). Although not confirmed by x-ray, the plaintiff's doctor diagnosed fracture of 1st and 2nd metatarsals. (R. 251). Of particular significance, his doctor planned to remove the cast and to return plaintiff to work as of July 5, 2007, without restrictions. (R. 251).

On July 19, 2007, the plaintiff complained of minimal pain with ambulation in the cast. (R. 271). He said he had been taking Tylenol with codeine for pain. (R. 271). A physical examination was essentially normal, with no pain or numbness and bilaterally intact sensation. (R. 271). The doctor assessed status post fracture of left 1st and 2nd metatarsals. (R. 271). The doctor removed plaintiff's cast, and noted that plaintiff reported no pain with palpation or range of motion. (R. 271). He was given a CAM walker to be used with ambulation, and told to return in two weeks. (R. 271). Per treatment note dated August 2, 2007, the plaintiff reported some pain and swelling in the lateral aspect of his left foot. (R. 295). He had moderate edema on examination. (R. 295).

His doctor assessed left 2nd metatarsal head fracture healing, and told plaintiff to wrap his foot with an Ace bandage, continue with the CAM walker, ambulating with weight-bearing as tolerated, and to return in two weeks. (R. 295). On August 30, 2007, plaintiff returned for follow-up of status post 2nd metatarsal head. (R. 294). He complained of pain and swelling in the left foot. (R. 294). He admitted that he had stopped using the CAM walker on August 16, 2007, though it did help with the pain, and presented to the exam with a cane. (R. 294). Plaintiff stated he felt better after his doctor gave him an AirCastankle brace. (R. 294). His doctor also told him to return in one month. (R. 294). Following this visit, the administrative record contains no evidence of follow up or further treatment.

The State agency expert consultant, Dr. Calixto Aquino, M.D., found on August 15, 2007, that the plaintiff's diagnosis of fractured distal left second metatarsal was not expected to last 12 months and was expected to be non-severe at the end of this period. (R. 274). Dr. Frank Norbury, M.D., State agency expert consultant, affirmed the August 2007 decision on October 30, 2007. (R. 276).

The plaintiff underwent an internal medicine consultative examination with Dr. Hilton Gordon, M.D. (“Dr. Gordon”), on August 4, 2009, shortly before the administrative hearing. At the examination, the plaintiff reported that he tripped and fractured the 2nd and 3rd toes on his left foot in 2007. (R. 278). He told the doctor that the toes had healed but that he still experiences pain and swelling on and off on the toes of the left foot. (R. 278). He also complained of pain and swelling in the right foot, speculating that it was due to his protecting the left foot. (R. 278). He reported that he could walk 3 to 4 blocks, go up two flights of stairs, and stand for 20 minutes without difficulty. (R. 278). He uses a cane for support but can walk without it. (R. 278). The plaintiff presented to the examination with a non-prescribed cane. (R. 280).

The physical examination by Dr. Gordon revealed that plaintiff had slight tenderness in the proximal 2nd and 3rd toes of his left foot. (R. 279). His toes were able to curl at least 90% on the left foot compared to 100%. (R. 279). There was no redness, warmth, or swelling in the right foot. (R. 279). Plaintiff had intact strength and sensation. (R. 279). He had a slight limp, but could walk more than 5 feet without a cane. (R. 280). Dr. Gordon diagnosed status post fracture of 2nd and 3rd toes of the left foot, with possible arthritis and slight tenderness on palpation of the proximal 2nd and 3rd toes but no swelling. (R. 280). Dr. Gordon opined that plaintiff would have the following residual functional capacity: stand for 8 hours, but only 4–5 hours at a time; stand for 20–30 minutes at a time; walk for 3–4 hours but only 3 hours at a time; lift/carry 20 pounds frequently; and occasionally climb, balance, kneel, crouch or crawl. (R. 286–89). Dr. Gordon noted that this assessment was based on the plaintiff's complaints of pain and swelling feet. (R. 288–89).

C.The Administrative Hearing Testimony

1.Mr. Thorps's Testimony

Mr. Thorps asserts that he has been disabled since May 11, 2007, due to a broken left foot. (R. 38). He reported that he cannot walk further than a mile, and uses a cane to walk. (R.50–51). The plaintiff testified he resides with and cares for his dementia-impaired mother, assisting her with her daily activities without being compensated. (R. 61). He shares this duty with his siblings. (R. 61). He testified that he was most recently a health care provider, washing and cleaning the elderly, but had not returned to work after his injury in May 2007. (R. 44). He testified that he filled out an application in 2009 for a County of Cook deputy sheriff position, but was not called. Although he acknowledged he filled out an application for the position, he said, quite inconsistently, that he was not physically able to do the job. He has not applied for any other work. (R. 46–49).

The plaintiff testified that he currently carries a cane secondary to pain his foot (R. 50), but can walk eight blocks or a mile. (R. 50). He said the cane makes it easier. (R. 50). He uses the cane alternating in both hands. (R. 51). He testified that the cane was not prescribed, but that crutches had been prescribed in connection with his initial treatment, and he had used them until April 2008. (R. 42). He did not develop complications or swelling. He testified that he has not had physical therapy in relation to the foot injury. (R. 51). Also, the...