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Man v. Commissioner of Social Security

March 26, 2010


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 14) and defendant's cross-motion for summary judgment (Doc. 17).


Plaintiff initially applied for social security benefits on August 20, 2004. That application was denied and plaintiff re-applied for benefits. Plaintiff claims that disability began on April 16, 2004, and is caused by a combination of: knee, back, and neck pain; an injury to the right shoulder; a head injury; and depression. On re-application, plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on October 23, 2007, before Administrative Law Judge ("ALJ") Daniel G. Heely. In a December 27, 2007, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. Plaintiff has the following severe impairments: degenerative disc disease and osteoarthritis;

2. Plaintiff's impairments do not meet or medically equal an impairment set forth in the regulations;

3. Plaintiff has the residual functional capacity to perform light work except that he can only occasionally perform work requiring postural activities of climbing, balancing, stooping, bending, kneeling, crouching, and crawling;

4. Plaintiff cannot perform any of his past relevant work; and

5. Considering plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that he can perform.

After the Appeals Council declined review on October 14, 2008, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

October 24, 1996 -- Progress notes prepared by Dr. Howe indicate that plaintiff's ligaments were intact and that he had a full range of motion, though there was some tenderness over the infra-patellar tendon. (CAR 173).

October 25, 1996 -- X-rays of plaintiff's left knee revealed no significant bony, soft tissue, or articular abnormality. (CAR 183).

December 5, 1996 -- Dr. Caton prepared a report following an orthopedic examination of plaintiff's left knee. (CAR 174). Plaintiff complained of "difficulty with the knee with giving way and buckling." Dr. Caton reported that plaintiff's knee had not responded to continued conservative care. On physical examination, the doctor noted pain and tenderness over the medial joint line. McMurray's sign was positive. Neurovascular status was otherwise intact and anteroposterior drawer sign was negative. The doctor reported that x-rays were negative. Dr. Caton believed that an MRI scan was necessary for further evaluation and opined that, if the MRI is positive, plaintiff "is going to require operative arthroscopy."

December 26, 1996 -- Dr. Goldberg reported on plaintiff's MRI study. (CAR 184). The doctor provided the following impression:

Probable partial patellar tendon tear versus extensive patellar tendinitis markedly abnormal patellar tendon. Clinical correction with symptoms suggested.

January 9, 1997 -- Plaintiff was seen by Dr. Caton in a follow-up evaluation. (CAR 174). The doctor reported that the MRI was "grossly abnormal showing significant problems with the knee with a very abnormal thickened patella." Dr. Caton opined that plaintiff was "obviously unable to work" and concluded that plaintiff required surgical intervention.

January 27, 2997 -- Dr. Caton reported in a progress note that plaintiff had been scheduled for surgery that week, on Friday. (CAR 175).

February 10, 1997 -- Plaintiff was seen by Dr. Caton for postoperative consultation. (CAR 175). The doctor reported that he is doing "reasonably well" and that the "wounds look good." Dr. Caton noted that "at the time of the surgical procedure, the patient had Grade III chondromalacia of the patella with synovitis and a plica."

July 31, 1998 -- Plaintiff reported to Dr. Howe complaining of depression. (CAR 182). According to the doctor's note, plaintiff's wife had left him two weeks earlier. Plaintiff reported no suicidal ideation. The doctor assessed depression and fatigue and prescribed Paxil and ordered lab tests.

June 16, 2004 -- X-ray studies of plaintiff's lumbar spine, which were obtained incident to plaintiff's complaints of low back pain, revealed osteoarthritis and spondylolysis at L5, but no significant spondylolisthesis. (CAR 168).

X-rays of plaintiff's left knee obtained this same date revealed no effusion, slightly prominent tibial spines, and an otherwise normal study. (CAR 169).

February 9, 2006 -- Plaintiff's niece, Kayla Inthavong, submitted a third-party statement. (CAR 118-25). She stated that plaintiff takes care of his two-year-old son, though she adds "My mom and I help him [plaintiff] with everything." Ms. Inthavong also stated that plaintiff can do his "regular daily routine" without any assistance. She also stated: "He can walk w/ any type of asst. or cane." It is unclear whether this means that plaintiff requires an assistive device to walk or does not require use of such a device. She did indicate later in the statement that plaintiff uses either a cane or wheelchair every day. At one point she stated that plaintiff can bathe, care for his hair, shave, feed himself, and use the toilet without any assistant, though these things take him a long time and he cannot stand for long period of time. However, elsewhere in her statement, she stated that plaintiff "needs help with his grooming, such as brushing his teeth, change cloches, and shower." Ms. Inthavong stated that plaintiff cannot cook any meals for himself and does no house work or yard work. She also stated that plaintiff can pay his own bills, count change, handle a savings account, and use a checkbook, though he requires assistance to do these things. She added that plaintiff is unable to engage in any hobbies or activities, stating: "He can't do anything anymore." Ms. Inthavong stated that plaintiff ...

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