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Kutzer v. Berryhill

United States District Court, W.D. Pennsylvania

March 28, 2017

SCOTT KUTZER, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration, Defendant.

          MEMORANDUM OPINION

          LISA PUPO LENIHAN U.S. Magistrate Judge.

         I. Introduction

         Plaintiff Scott Kutzer brings this action pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial review of the final decision of Nancy A. Berryhill, Acting Commissioner of Social Security, which denied his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-433. The matter is before this Court on cross-motions for summary judgment (ECF Nos. 17, 19). The record has been developed at the administrative level.[2] For the reasons set forth below, Plaintiff's motion will be denied, the Acting Commissioner's motion will be granted, and final judgment will be entered in favor of the Acting Commissioner and against Plaintiff.

         II. Statement of the Case

         A. Procedural History

         Plaintiff filed an application for DIB benefits on May 22, 2013, alleging disability as of August 3, 2011, due to pain in his right and left knees and his right ankle (R. at 134-35, 155). The agency initially denied his application on August 8, 2013, so he filed a request for an administrative hearing, which was held on November 12, 2014, before Administrative Law Judge (“ALJ”) David J. Kozma (R. at 34-57, 70-74, 95). Plaintiff appeared with counsel and testified at the hearing, as did an impartial vocational expert (R. at 34-57).

         In a decision dated January 29, 2015, the ALJ held that Plaintiff was not “disabled” within the meaning of the Act and therefore denied his application for DIB. (R. at 29-30). After the Appeals Council denied Plaintiff's request for review, he commenced this action on July 7, 2016 (ECF Nos. 1, 3). Plaintiff filed a motion for summary judgment, with a brief in support, on February 10, 2017 (ECF Nos. 17, 18). The Commissioner filed a motion for summary judgment, with a brief in support, on March 9, 2017 (ECF No. 19, 20). The cross-motions are ripe for disposition.

         B. General Background

         Plaintiff was born on December 13, 1966, making him 44 years old as of his alleged onset date and 47 years old as of the date of the hearing (R. at 38, 134). He graduated from high school, attended some community college, and has past relevant work experience as a hospital housekeeper (R. at 52, 156, 157).

         Plaintiff was involved in a head-on collision on August 3, 2011 (R. at 37-38). He severely injured his right knee and right ankle in the accident and had to undergo surgery on his ankle, after which he spent approximately two months in a nursing rehabilitation facility (R. at 38, 42). He has not worked since (R. at 40).

         In the wake of the accident, Plaintiff's “right ankle hurts all the time.” (Id.). The pain is typically steady, aching, and accompanied by swelling, some days more than others (Id.). He spends “a good part of the day” - at least a “couple” of hours - sitting in a recliner with his leg elevated (R. at 41). He also ices his ankle every day (R. at 40-42). He does not use a cane, but he does wear a brace on his right knee (R. at 51). In addition to the pain in his right ankle and knee, he more recently started to experience pain in his left knee because he favors his left side when walking (R. at 45).

         Plaintiff testified that he cannot bend, kneel, stop, or engage in other postural maneuvers. As a result, he cannot help with household chores such as sweeping and the like (R. at 41-42). He also testified that he cannot do outdoor activities with his children as he once could (R. at 39). However, he can drive “short distances” of approximately 45 minutes to an hour (R. at 41).

         C. Medical Evidence

         Following the aforementioned accident, Plaintiff was taken to the emergency room with an open fracture of his right ankle (R. at 393). He also had a broken right patella (R. at 395). An external fixator was implanted to repair his broken ankle, and he was fitted with an external brace for his right knee, which was deemed non-operative (Id.). His orthopedic surgeon, Gary Gruen, M.D., noted at Plaintiff's first follow-up appointment that he would not be able to return to work for approximately one year due to his injuries (R. at 242). A week after the surgery, Plaintiff was admitted to a skilled nursing facility, where he spent approximately two months (R. at 241). While there, he started to undergo physical therapy and showed modest improvement in his ability to ambulate (R. at 206-12).

         On October 6, 2011, Plaintiff had his two-month follow-up with Dr. Gruen (R. at 237). At that time, he had still not been allowed to bear any weight on his right side (Id.). His range of motion in his knee was 0 to 75 degrees, while his ankle range of motion was limited (Id.). Dr. Gruen ordered Plaintiff to undergo an MRI to determine weight-bearing status and advised him of the risks of non-union, malunion, chronic pain, stiffness, avascular necrosis, and the possible need for a future operation (Id.).

         On November 14, 2011, Plaintiff began to undergo outpatient physical therapy (R. at 347). Around that same time, he saw Dr. Gruen for another follow-up, and Dr. Gruen noted that Plaintiff was “doing well” (R. at 236). Plaintiff had “[n]o complaints of pain” and asked Dr. Gruen whether he could return to work (Id.). Upon examination, Plaintiff displayed active knee range of motion from 0 to 95 degrees, but limited ankle range of motion (Id.). Dr. Gruen instructed Plaintiff that he could remove his knee brace and “continue 50 % weightbearing in his CAM boot” (Id.). He also noted that Plaintiff could return to work on November 28, but he would have to be limited to “part-time sedentary duties only” (Id.).

         In the ensuing months, Plaintiff continued to see his physical therapist three days per week. On November 22, 2011, Plaintiff's physical therapist noted that Plaintiff had just seen his bone specialist, who approved him for full weight-bearing status without a boot and without an assistive device as tolerated (R. at 342). On December 5, 2011, the therapist noted that Plaintiff “continue[d] to make improvements” and was “[w]alking over the weekend with less pain” (R. at 337). The following week, Plaintiff reported pain at “2/10” and “was able to ambulate without [a] walker and boot [for the] entire 60 minutes' worth of exercise” (R. at 333). It was further noted that Plaintiff's endurance was “improving each session.” (Id.). The next day, Plaintiff reported less pain but continued to have problems with “endurance and distance with weightbearing” (R. at 331). The next week, Plaintiff's therapist instructed him “to try to walk outside of home for short trips with [a] walker.” (R. at 329). On January 3, 2012, Plaintiff reported that “[h]ad some extra pain after walking [a] long period of time in the mall” (R. at 313). Two days later, he reported that his “signs and symptoms ha[d] decreased since [his] last treatment session, ” while he “continue[d] to see endurance gains” (R. at 311). His therapist noted that he was “progressing toward goals approximately . . . . [He] continue[d] to perform exercises that mimic walking on uneven surfaces with distractions” (Id.).

         Around this time, there was a question as to whether Plaintiff's insurance would continue to cover his physical therapy. In a progress noted dated January 10, 2012, Plaintiff's physical therapist noted that Plaintiff “ha[d] made excellent progress” (R. at 269). “His strength [was] 5/5 for all motions and he no longer experienced the buckling of the right knee” (Id.). Furthermore, “[h]e [was] walking with minimal pain[, ]” though he “continue[d] to have an antalgic gait with increased stance time on the right foot that [was] related to pain in the heel with weight shifts” (Id.). And while his range of motion had improved, he continued to have “limitations in dorsiflexion to about 5 degrees and eversion to about 8 degrees.” (Id.). The therapist noted that she had recently begun working with Plaintiff on “work specific activities and ADL advancement such as walking on uneven surfaces, squatting, curbs, [and] carrying objects over [an] obstacle course” (Id.). She recommended that Plaintiff undergo six more weeks of therapy, after which point she saw “no physical reason” why he “would be unable to return to work” (Id.).

         On January 19, 2012, Plaintiff followed up with Dr. Gruen, who noted that Plaintiff was “ambulating in normal shoes” and did not “have any pain with ambulation in his ankle.” (R. at 235). “On examination, ” Dr. Gruen observed, Plaintiff “ambulate[d] into the clinic without antalgia[, ]” though his range of motion in his ankle was limited (Id.). Dr. Gruen advised Plaintiff that he might be developing signs of avascular necrosis and recommended that he undergo an MRI (Id.).

         On January 20, 2012, Plaintiff was seen for what was supposed to be his last therapy session, as his insurance company had denied continued coverage (R. 299). It was noted that he had recently stubbed his toe “going up steps . . . too quickly” (Id.).

         In a progress note from Plaintiff's physical therapist dated February 6, 2012, it was again noted that Plaintiff had “made excellent progress” since his surgery (R. at 270). The therapist recommended that Plaintiff receive four more weeks of therapy, with two therapy sessions a week, after which time he would likely be able to return to work (Id.).

         Plaintiff's insurance company allowed him to continue physical therapy in April 2012 (R. at 297). On May 7, 2012, Plaintiff reported “pain at 3/10 with edema as he ha[d] been on his feet for an extended period of time” (R. at 289). On May 17, 2012, Plaintiff “complained of an increase of stiffness and pain . . . after mowing grass and working in his shed” (R. at 283). The next week, he reported mild improvement in ambulation, but he continued to have limited range of motion in his ankle and “[l]imits in activity over [an] 8 hour period” (R. at 279). On June 5, 2012, he reported that he was “doing more things around the house ...


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