Malta v. Astrue
| Decision Date | 17 December 2010 |
| Docket Number | Civil Action No. 3:10-CV-1320-BH |
| Parties | JOSE MALTA, Plaintiff v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Pursuant to the consent of the parties and the District Court's order of transfer, dated September 8, 2010, this case has been transferred for all further proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c). Before the Court are Plaintiff's Motion for Summary Judgment, filed October 1, 2010, and Defendant's Motion for Summary Judgment, filed October 22, 2010. Based on the relevant filings, evidence, and applicable law, Plaintiff's motion is DENIED, Defendants's motion is GRANTED, and the decision of the Commissioner is wholly AFFIRMED.
Plaintiff Jose Malta ("Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying his claim for disability benefits under Title II of the Social Security Act. On November 7, 2007, Plaintiff applied for disability insurance benefits, alleging disability since March 27, 2007, due to total left and right hip replacements, history of kidney problems, high blood pressure, and cervical disc problems. (R. at 145-47, 162.) His application was denied initially and upon reconsideration. (R. at 80, 85.) He timely requested a hearing before an Administrative Law Judge ("ALJ"), and personally appeared and testified at a hearing held on April 13, 2009. (R. at 88, 35-37.) On October 2, 2009, the ALJ issued a decision finding Plaintiff not disabled. (R. at 25-33.) Plaintiff then requested the Appeals Council to review the ALJ's decision in light of newly submitted evidence. (R. at 7.) On May 28, 2010, the Appeals Council denied his request for review, and the ALJ's decision became the final decision of the Commissioner. (R. at 1-4.) Plaintiff timely appealed the Commissioner's decision to the United States District Court pursuant to 42 U.S.C. § 405(g).
Plaintiff was born on July 11, 1964, was forty-two years old on his alleged onset date, and was forty-five years old at the time of the hearing before the ALJ. (R. at 32, 145.) He has a high school education and past relevant work as a meter reader, warehouse worker, material blocker, sales clerk, and shipping receiving clerk. (R. at 32.)
Plaintiff's relevant medical begins in March 2007, when Plaintiff started complaining of hip and knee pain accompanied by weakness in his legs. (R. at 325-26.) An evaluation by Jeffrey B. Siegel, M.D., demonstrated bilateral degenerative changes with marginal sclerosis and loss of articular cartilage, but no fracture, dislocation, or bony destruction. (R. at 370.) The following month, Kurt J. Kitziger, M.D., reported that the pain in Plaintiff's left hip was getting worse and thathe had to walk with crutches. (R. at 408.) According to Dr. Kitziger, Plaintiff had a little pain in the right hip but it was not nearly as bad as on the left. (Id.) Diagnosing Plaintiff with osteonecrosis of both femoral heads, he recommended left total hip arthroplasty ("THA") and noted a potential need for right THA if Plaintiff developed increasing pain on that side. (Id.) Plaintiff agreed to have the left hip replacement surgery in mid-May. (R. at 289.) In the weeks following surgery, Dr. Kitziger reported that Plaintiff had very little pain, was undergoing physical therapy at home, and was able to get up and walk although he relied on crutches for support. (R. at 332, 403, 406.)
In July 2007, Plaintiff complained that his right hip had started to hurt like his left one had before the replacement surgery (R. at 290), but he reported that he was driving his car (R. at 402). Upon physical examination, Dr. Kitziger noted that Plaintiff had a left-sided limp and tenderness in his left hip with a pain-free range of motion. (R. at 402.) He also noted that Plaintiff's right hip had pain on any attempt at rotation and had mottling throughout with cyst formation. (Id.) Plaintiff initially decided to delay right THA due to financial concerns (id.), but by early October, he had scheduled the surgery for December (R. at 387).
In October, Plaintiff reported to Dr. Kitziger that his left hip was doing well with only occasional tenderness but his right groin had been increasingly painful. (R. at 401.) The pain in his right groin reportedly got worse with weight-bearing, radiated into his buttock and thigh, and was as bad as his left hip before surgery. (Id.) Upon physical examination, Plaintiff was noted to have a significant limp on the right side, zero degree of flexion, and twenty degrees of external and zero degrees of internal rotation with pain throughout. (Id.) Dr. Kitziger informed Plaintiff that after his right THA, he would be able to perform sedentary work. (Id.)
In early December, Plaintiff returned to Dr. Kitziger for an evaluation and informed him that he was considering putting off the right hip replacement surgery. (R. at 436.) He reported that thepain in his right hip was not as bad as his left hip was before the surgery, his good days still outnumbered the bad, and he could walk up to a mile on a good day. (Id.) His right hip pain was typically a five on a ten point scale. (Id.) Upon physical examination, Dr. Kitziger noted that Plaintiff's right hip was non-tender with zero out of eighty degrees of flexion and twenty degrees of rotation without any pain. (Id.) The X-ray images appeared to show a worsening of the right hip osteonecrosis. (Id.) Dr. Kitziger recommended putting off the surgery, however. (Id.)
In February of 2008, Plaintiff reported that his right hip pain had worsened (R. at 446), and he was noted to be walking with a limp (R. at 449). In May of 2008, Plaintiff told Dr. Kitziger that he was ready for surgery on his right hip; he reportedly had no pain in his left hip but the pain in his right hip had progressed to an eight on a ten point scale, and he could only walk a block or two at most. (R. at 455.) On physical examination, he arose unassisted but had a very bad limp on the right side and marked pain when attempting rotation at the right hip. (Id.)
In May, Dr. Kitziger filled out a detailed physical capacities evaluation, in which he opined that Plaintiff's pain was disabling to the extent that it would prevent him from working full-time at even a sedentary position. (R. at 456-59.) He also opined that the mental effects of his pain constituted a significant handicap to sustained attention and concentration, which would eliminate skilled work tasks. (R. at 459.)
On June 25, 2008, Plaintiff underwent right THA. (R. at 460.) Three weeks after the surgery, Dr. Kitziger, noted that Plaintiff was "getting along well, " was "taking the occasional pain pill at night, " was bearing full weight in his walker, and had ninety degree of flexion without pain. (R. at 496.) Three months after the surgery, in September 2008, Dr. Kitziger noted that Plaintiff was getting along well, was no longer taking any pain medication, and had ninety degree of pain-free flexion, but he complained of some clicking and pain in his low back region. (R. at 497.) Dr. Kitziger supplied him with some back and hip stretching exercises. (Id.)
In March of 2009, Plaintiff was seen at Parkland Hospital for pain in his hips and low back. (R. at 528.) Plaintiff reported that he had been experiencing pain since his surgery, but he had not followed up because he had lost his insurance coverage. (Id.) The assessment upon physical examination was status post bilateral hip replacement with continued pain. (Id.) He was noted to have a mildly antalgic gait, intact sensation and normal motor strength; physical therapy was recommended for strengthening. (R. at 528-29.) The following month, Plaintiff reportedly fell out of a chair, causing pain in his hip area. (R. at 582.) Plaintiff had normal flexion and extension of the left hip with pain on internal rotation, and he reported that Tylenol helped his pain. (Id.) X-rays showed that the left hip was grossly stable in appearance with no acute fractures and that the right hip had no post-surgery complications. (R. at 594, 596.)
In February of 2010, Plaintiff returned to Parkland where he was assessed as having chronic pain in his neck and low back. (R. at 557-58.) The following month, Plaintiff reported that he had experienced neck pain before the surgeries but his low back pain had begun after the surgeries. (R. at 536.) He rated the pain as a six out of ten and reported that he was taking Hydrocodone to control it. (Id.) The physician's impression was that Plaintiff's neck pain was "related to cervical degenerative disk disease worse at C6-7, with broad-based disk protrusion seen throughout C3-7 with central canal and bilateral foraminal stenosis at C6-7." (R. at 537.) He noted that the low back pain was "related to bilateral facet hypertrophy at L5-S1 with a left lateral disk protrusion, and superior migration contracting the left L5 nerve root." (Id.) Two views of the lumbar spine revealed osteoarthritis involving the facet joints of the last two lumbar segments with no subluxation. (Id.)
On April 13, 2009, Plaintiff and a vocational expert ("VE") testified at a hearing before the ALJ. (R. at 35-36.) Plaintiff was represented by an attorney. (R. at 35.)
Plaintiff testified that prior to his disability onset date, he had worked full-time as a warehouse associate in shipping and receiving and picking and packing, and he was accustomed to lifting between seventy and ninety pounds. (R. at 41-42.) Prior to that, he had worked as a meter reader, material blocker, clerk, and welder. (R. at 42-43.)
Plaintiff testified that he stopped working due to deterioration of his hips. (R. at...
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