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Canzano v. Astrue

September 30, 2009

ROBERT V. CANZANO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff, Robert V. Canzano ("Canzano" or "plaintiff"), brings this action pursuant to 42 U.S.C. § 405(g) seeking review of the final determination of the Commissioner of Social Security ("Commissioner" or "defendant") denying plaintiff's application for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"), as amended, 42 U.S.C. §§ 401-433.

II. PROCEDURAL HISTORY

Canzano filed an application for DIB benefits on July 27, 2006, alleging disability since May 25, 2006, due to total right knee replacement and high blood pressure. (R. 116, 120). Canzano's claim was initially denied.*fn1 (R. 81-85). A hearing was held on May 30, 2007, in Johnstown, Pennsylvania, before Administrative Law Judge Douglas W. Abruzzo ("ALJ"). (R. 38-76). Canzano was represented by counsel, Barbara J. Artuso, Esquire, and appeared and testified. Id. An impartial vocational expert ("VE"), was also present and gave testimony. Id. The ALJ issued an unfavorable decision on June 27, 2007, finding that Canzano was "not disabled" within the meaning of the Social Security Act.*fn2 (R. 9-16). The ALJ's decision became the Commissioner's final decision when, on February 15, 2008, the Appeals Council denied Canzano's request for review. (R. 2-4). Administrative remedies thus being exhausted, plaintiff brings the instant matter before this court, seeking judicial review of the Commissioner's decision. The parties have filed cross motions for summary judgment together with supporting briefs under Rule 56 of the Federal Rules of Civil Procedure, and the record has been developed at the administrative level. The matter is now poised for disposition.

III. STATEMENT OF THE CASE

Canzano was born on September 19, 1954, making him fifty-one (51) years old at the onset of the alleged disability and fifty-two (52) years old on the date of the administrative hearing. (R. 107; 120; 43). Under the Commissioner's regulations, applicants age 50-54 are considered persons "closely approaching advanced age" and their age is considered together with severe impairments in determining the applicant's ability to adjust to other work. 20 C.F.R. § 416.963.

Canzano graduated from high school, and earned a certificate in heating, ventilation, and air conditioning ("HVAC"). (R. 44; 125-26). Canzano's employment history consists of work as a concrete form setter from 1996 until the onset of his disability in 2006, HVAC technician from 1995 until 1996, and machine operator from 1989 until 1994. (R. 128).

Canzano suffered from severe arthritis in his right knee, and endured total knee replacement surgery on June 15, 2005, to alleviate the pain. (R. 51; 165). Following the surgery, Canzano attended six physical therapy sessions between June 16 and June 18, 2005, reportedly making progress towards his expected goals. (R. 171).

Bernard Scherer, M.D. ("Dr. Scherer"), Canzano's primary care physician, treated Canzano on June 23 and July 15, 2005, and noted that his right knee was healing well. (R. 236-37). Canzano's orthopaedic surgeon, A. Roger Wigle, M.D. ("Dr. Wigle"), likewise noted Canzano's overall post-surgery condition as fairly well on July 19, 2005. (R. 212).

Canzano completed 19 of 30 scheduled physical therapy appointments between July 15, 2005, and September 23, 2005. (R. 196-97). During these visits Canzano reported minimal pain.

(R. 196; 201; 203). The physical therapist's assessment indicated that Canzano's progress was slow, which was partially due to his poor compliance with attending his scheduled sessions. (R. 196).

Although Canzano's attendance at physical therapy was less than ideal, Dr. Wigle did note improvement in Canzano's right knee during the course of his physical therapy. (R. 212). Around the same time, Dr. Scherer also observed that Canzano's right knee was healing well and improving. (R. 233-36).

In December 2005, Canzano returned to work as a concrete form setter. (R. 52-53). By April 2006, Dr. Scherer reported Canzano was experiencing some knee swelling and pain, and had a recent minor bump of the knee. (R. 232). Radiology findings of April 5, 2006, showed the right total knee prosthesis in good position, with no fracture or other acute finding seen. (R. 248). Canzano reported that his last day on the job was May 25, 2006. (R. 120). On May 26, 2006, Dr. Scherer expressed his opinion that Canzano's job was too physically demanding for his knee, and that he should get a different job or that he may qualify for partial disability. (R. 229).

Canzano had a follow-up visit with Dr. Scherer on May 31, 2006, after which Dr. Scherer reported a moderate amount of swelling. (R. 228). Dr. Scherer also expressed doubt that Canzano could return to his former job and stated that he is only capable of "light-to-medium duty." (Id.).

Canzano's physical therapist reported on June 1, 2006, that his knee was doing well, but had become worse after returning to work. (R. 219). Canzano rated the pain in his knee as 3-4/10 at worst, and reported that activities routinely performed at his job aggravated his knee. (Id.) Canzano continued to report improvement with his knee in subsequent physical therapy visits.

(R. 220-21).

Canzano was seen by Dr. Wigle on June 22, 2006, at which time Dr. Wigle reported that Canzano's knee was feeling pretty good since he was taken off of work by Dr. Scherer. (R. 211). Dr. Wigle stated that there was no swelling of the knee, and Canzano demonstrated a good range of motion of the knee. (Id.). Dr. Wigle indicated that Canzano performed a job as a janitor that was within his capabilities, and issued a prescription to limit him to that job or an equivalent job. (Id.). Dr. Scherer concurred on June 26, 2006, stating Canzano should be limited to a "very light duty job." (R. 226).

Canzano's physical therapist reported on July 7, 2006, that Canzano's condition had improved, but was being discharged from the program due to his failure to attend scheduled appointments. (R. 216). Attempts to contact Canzano to reschedule the appointments were unsuccessful. (Id.).

Dr. Scherer treated Canzano on July 11, 2006, and reported that although the right knee had moderate swelling, it had improved since the last office visit. (R. 225). Dr. Scherer indicated that Canzano should not return to his prior employment. (Id.).

Canzano's physical therapist reported on January 29, 2007, after Canzano had completed an additional 12 sessions of physical therapy, that Canzano had met his goal of improving knee range of motion and strength to near normal limits, although Canzano stated that his pain remains constant and rated it as a 5 out of 10 at its worst. (R. 267). He described the pain as a burning sensation and mentioned difficulty with stairs, as well as kneeling and squatting. (Id.). Manual muscle ...


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