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Wilson v. Astrue

May 5, 2010


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.


Plaintiff, Lance P. Wilson ("Plaintiff"), commenced the instant action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the final decision of the Commissioner of Social Security, who found that he was not entitled to supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Plaintiff filed an application for SSI on January 27, 2005, alleging disability since August 1, 1995, due to depression and a left leg injury (Administrative Record, hereinafter "AR", at 50-55).*fn1 His application was denied initially, and he requested a hearing before an administrative law judge ("ALJ") (AR 29-34). A hearing was held on July 31, 2008 and following this hearing, the ALJ found that the Plaintiff was not disabled at any time through the date of her decision, and therefore was not eligible for SSI benefits (AR 13-21; 340-378). Plaintiff's request for review by the Appeals Council was denied (AR 5-8), rendering the Commissioner's decision final under 42 U.S.C. § 405(g). The instant action challenges the ALJ's decision. Presently pending before the Court are cross-motions for summary judgment. For the reasons set forth below, the Defendant's motion will be granted and the Plaintiff's motion will be denied.


Plaintiff was 38 years old on the date of the ALJ's decision (AR 57). Plaintiff did not finish high school but earned a General Educational Development ("GED") diploma (AR 54; 347). He previously worked as a truck driver/ground person for his father's electrical construction company until his father retired in October 1991 (AR 51).

Prior to his alleged onset date, Plaintiff had surgery in 1986 for a fractured left ankle following a motorcycle accident (AR 149). In May 2000, Plaintiff was seen by David Johe, M.D. for complaints of ankle pain and x-rays revealed significant osteoarthritis of his tibial talar joint (AR 149). On May 26, 2000, Dr. Johe recommended an orthotic and/or brace for his ankle pain, as well as over-the-counter anti-inflammatory medication (AR 149). Dr. Johe noted that the Plaintiff was "disabled" but was of the opinion that he could work at a sedentary or light duty job that did not involve much walking or standing (AR 148-149). He indicated that he would complete the Plaintiff's "forms" stating that the Plaintiff could work with an accommodation that allowed for sitting, and suggested that he undergo vocational rehabilitation (AR148-149). Dr. Johe completed the Pennsylvania Department of Public Welfare Employability Assessment Form, but rather than stating the Plaintiff could work with the suggested accommodation, Dr. Johe opined that the Plaintiff was permanently disabled due to his left ankle condition (AR 151).

On August 31, 2001, Plaintiff was seen in the emergency room for complaints of back pain (AR 154). It was noted that he wore a left foot brace for a left foot drop condition secondary to an old left leg fracture (AR 154).*fn3 Physical examination revealed no motor or sensory changes and his gait was otherwise unremarkable (AR 154). Multiple views of his lumbar spine were unremarkable and he was assessed with right sciatica, treated with Vicodin and Flexeril and released (AR 153).

On October 22, 2001, Plaintiff was examined by Martin Jacobs, M.D., a consulting examiner (AR 157-161). Plaintiff reported that he was laid off in 1992 after his father retired (AR 157). He claimed that he had searched for other work since then but was unable to find a job (AR 157). He wore a splint on his left calf and ankle which reportedly helped somewhat with the pain (AR 158). Dr. Jacobs observed surgical scars and a deformity of the external malleolus, and on physical examination, there was no flexion, extension or rotation of the Plaintiff's ankle, even without the brace (AR 158). His gait was antalgic and his ankle deep tendon reflexes were absent (AR 158).*fn4 His remaining physical examination was unremarkable, and he was assessed with secondary degenerative joint disease of the left ankle and low back strain due to his abnormal gait from his abnormal left ankle (AR 158). On October 30, 2001, a state agency adjudicator concluded that the Plaintiff could perform light work (AR 162-169).

On December 5, 2001, a state agency reviewing physician, Joyce Goldsmith, M.D., reviewed the medical evidence of record and disagreed with the state agency adjudicator's assessment, finding that the medical evidence and treatment records supported a more limited residual functional capacity assessment (AR 170-172). Dr. Goldsmith found that the Plaintiff could only walk and/or stand at least two hours in an eight-hour day, was precluded from climbing, and could only occasionally balance, stoop, kneel, crouch and crawl (AR 170). Dr. Goldsmith further found that the Plaintiff was limited in his lower extremities, in that he could not stand or walk for extended periods of time (AR 170). It was noted that the Plaintiff golfed weekly (AR 172).

In June 2004, while undergoing treatment for depression, Plaintiff reported to Widad Bazzoui, M.D. that he attended a vocational rehabilitation program and they were searching for a job he could perform while sitting (AR 182). In September 2004, he stated that he helped care for his mother, and in December 2004, he reported to Dr. Bazzoui that he spent a lot of time taking care of his father, performing odd jobs for him in his shop and home (AR 178-179).

Plaintiff returned to Dr. Jacobs for a second disability evaluation on May 14, 2005 (AR 210-217). Plaintiff again stated that he stopped working in 1992 after his father retired and that he had been unable to find work (AR 210). Plaintiff reported chronic low back pain, but claimed that his frozen left ankle, as well as left ankle and heel pain, were the only symptoms that prevented him from working (AR 211). Dr. Jacobs reported that the Plaintiff's gait was antalgic while wearing his ankle splint and shoes, and "very antalgic" without the splint and shoes (AR 211). Plaintiff's left ankle was swollen and Dr. Jacobs found virtually no active or passive range of motion (AR 211). His remaining physical examination was normal (AR 211). Dr. Jacobs diagnosed the Plaintiff with a frozen left ankle and secondary degenerative joint disease of the left ankle and heel, noting that these conditions caused a gait disturbance necessitating an ankle splint (AR 212).

On June 15, 2005, a state agency reviewing physician reviewed the medical evidence of record and concluded that the Plaintiff could perform light work, but was limited in his ability to push/pull with his legs due to his left ankle impairment; could never climb or crawl; could occasionally balance, stoop, kneel and crouch; and needed to avoid wet surfaces, machinery and heights (AR 219-222).

On October 4, 2005, Plaintiff was seen by Bradley Giannotti, M.D., for his complaints of left ankle pain (AR 284-285). Plaintiff reported that he was only able to stand for approximately one hour before needing to sit for twenty to thirty minutes before resuming activity (AR 284). Plaintiff stated that six years prior he golfed "a couple of times a week" but at the time of the evaluation only golfed once a month (AR 284). Physical examination revealed tenderness throughout the tibiotalar joint line but there was no significant swelling observed (AR 284). His range of motion was significantly restricted, but he was otherwise neurovascularly intact (AR 284). X-rays showed severe post-traumatic tibiotalar and subtalar arthrosis and Dr. Giannotti noted there was some fragmentation of the Plaintiff's talus (AR 284; 287). Dr. Giannotti informed the Plaintiff he could undergo talar fusion surgery or continue using the ankle brace (AR 285). Dr. Giannotti opined that the Plaintiff could perform sedentary work that did not require more than twenty to thirty minutes of walking or standing at a time (AR 285).

Beginning in 2006, the Plaintiff was treated by Peter Vaccaro, M.D. for his complaints of low back pain (AR 254-272). X-rays dated September 22, 2006 revealed mild progressive inferior spondylotic changes in the Plaintiff's lumbar spine with minimal developing hip osteoarthritis (AR 262). An MRI of the Plaintiff's lumbar spine dated September 28, 2006 showed a small protrusion at L5-S1, disc bulges at L3-4 and L4-5 and degenerative joint disease (AR 261).

Plaintiff was referred to a pain clinic for his low back pain and was evaluated by William McCain, M.D. on September 29, 2006 (AR 281). Physical examination of the Plaintiff's back revealed some tenderness on palpation, but was otherwise normal (AR 281). Dr. McCain reported that Plaintiff walked with only a slight gait and could not plantar flex while wearing his splint (AR 281). Dr. McCain recommended that the Plaintiff undergo a series of lumbar epidural injections, but the Plaintiff declined this treatment until he could consult with family members (AR 281).

Plaintiff returned to Dr. Giannotti on July 3, 2007, who noted it had been approximately one and one half years since his last visit (AR 285). Plaintiff reported increased weightbearing difficulties and that he had "good days and bad days" (AR 285). X-rays revealed no substantial change from his last visit (AR 286). Dr. Giannotti again presented the option of talar fusion, but pointed out the risk that surgery would diminish ankle motion and potentially lead to future arthrosis ...

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