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Ligon v. Astrue

December 23, 2008


The opinion of the court was delivered by: John Gleeson, United States District Judge


Wendell M. Ligon sues Commissioner of Social Security Michael Astrue under 42 U.S.C. § 405(g), seeking review of Astrue's decision that he is not entitled to a period of Supplemental Security Insurance ("SSI") benefits under Title XVI of the Social Security Act ("the Act"). The parties cross-move for judgment on the pleadings, the Commissioner seeking affirmation of his final decision that Ligon is not disabled and therefore, not eligible for SSI benefits, and Wendell seeking a reversal. For the reasons that follow, Ligon's motion is granted to the extent that the case is remanded for further proceedings, and the Commissioner's motion is denied.


A. Ligon's Claim of Disability*fn1

Wendell Mark Ligon was born in Tuskegee, Alabama on February 2, 1959, and is now nearly 50 years old. He went to woodworking vocational school after completing the ninth grade and worked for more than 20 consecutive years as a maintenance worker, parking coordinator and car transporter. While employed as a maintenance worker on October 28, 2003,*fn2

Ligon was struck by a moving vehicle as he was removing garbage. He fell to the ground, landed on his left side and sustained injuries to his back and left knee.

Ligon lives with his parents and brother. He does not take care of anyone else or any pets. Prior to his injuries he could exercise, work and engage in activities such as fishing and shooting pool. He is unable to participate in any of his former hobbies as a result of his injuries. His injuries prevent him from sleeping at night. He sometimes relies on the assistance of his father to get dressed or to shave his head and he usually relies on his mother to prepare his meals, although he prepares simple meals twice a week. He is unable to perform household chores or to drive. He uses public transportation to go to physical therapy. He is able to pay bills and manage his finances. His brother does the laundry and the grocery shopping, but Ligon sometimes accompanies him. Ligon speaks briefly to people on the phone approximately once a day but no longer visits with friends. The only places he regularly visits are the physical therapist's and doctors' offices.

At the time of his application, Ligon stated that he could lift less than five pounds, stand and walk up to 10 minutes, climb stairs with difficulty and walk only one block before needing to stop to rest for five minutes. He must alternate between sitting and standing, cannot kneel or squat and feels pain when reaching. His hands tremble when he uses them and he uses a cane and brace when walking outside. Ligon has a "stabbing" pain in his back on a daily basis that radiates to his left knee. He testified that he takes Tylenol with codeine three times a day to control the pain, but the relief lasts only about two hours and often causes him to fall asleep. He has trouble paying attention but can complete a task once he starts it. He has anxiety around cars and sometimes has difficulty remembering things.

At the hearing on November 26, 2007, Ligon was experiencing the lower back pain. At the conclusion of the hearing he said that if he were home he would have had to get up and shift around to try to alleviate the pain. He testified that despite having had surgery on his left knee, he continues to experience pain in the knee that prevents him from sitting for too long. Ligon testified that he has difficulty sleeping at night due to pain, lies on his back on the floor for at least two to three hours each day to alleviate his lower back pain and often sleeps on the floor. He wakes up from pain at night and takes medication to fall back asleep. He is able to sit for up to one and one-half hours at a time for a total of three hours a day but he begins to feel pain after ten minutes. He can stand for about 45 minutes to one hour at a time for a total of one and one-half hours a day. He uses a cane prescribed by his doctor for support of his left knee as well as a back and knee brace. He stated that he is able to walk about four blocks before needing to stop and hold a pole because of pain in his lower back. He can climb and descend stairs, but only very slowly and with his cane, because sometimes he loses all feeling in his left leg. He said he can lift 10-15 pounds but when asked about taking out the trash, he said that his back pain prevents him from lifting it.

Ligon's physical therapy and treatment with Dr. Gideon Hedrych ceased several months prior to the hearing, after he received a lump sum Workers' Compensation settlement and consequently had to pay for his own treatment. As of the hearing, he did not have a new treating physician. Despite testifying that he could not sit more than three hours a day, Ligon acknowledged after questioning by the ALJ that his symptoms should not prevent him from performing a security surveillance-type job that would allow him to alternate sitting and standing. However, Ligon also stated that he would not be able to take public transportation on a daily basis because of the pain in his lower back and knee.

B. Medical Evidence

1. Dr. Neil Morgenstern and Dr. Dov Berkowitz

Dr. Neil Morgenstern, a physiatrist, began treating Ligon on November 6, 2003, for complaints of lower back pain with radiation and numbness down his left lower extremity and left knee pain. R. 132. After an examination, he reported that Ligon's lumbar spine was remarkable for tenderness, reduced range of movement and/or positive straight leg raising. Id. Review of the left knee revealed positive joint line tenderness and motor strength remained constant at a grade 5/5, except for the left quadriceps and hamstrings, which were slightly lower (-5/5). R. 133. Sensory examination revealed hypoesthesia*fn3 on the left in the L5-S1 dermatomal region. Deep tendon reflexes were 2 and symmetrical. Id. Morgenstern's impression was that Ligon suffered from lumbar spine myofascitis,*fn4 a possible lumbar herniation and a knee sprain. Id.

Morgenstern recommended a plan of physical therapy three times per week in conjunction with additional testing and expert consultations. Id. He also stated that Ligon was currently disabled from performing his job duties. Ligon saw Morgenstern approximately a dozen times between his initial consultation and February 24, 2005. R. 125-47. Throughout the course of treatment, Morgenstern reported that Ligon's pain was improving with therapy. R. 127, 129, 134, 136, 138, 140, 142, 144. A November 10, 2003 x-ray of the left knee revealed no abnormalities. R. 148.

Morgenstern referred Ligon to Dr. Dov Berkowitz, an orthopedic surgeon. Berkowitz performed an initial evaluation of Ligon on December 30, 2003, noting among other things that Ligon had a decreased range of motion with positive paraspinal spasm and tenderness, as well as decreased flexion and extension in his back. R. 110. Berkowitz prescribed Vioxx and recommended a magnetic resonance imaging ("MRI") of Ligon's lumbar spine and left knee. Id.

A January 20, 2004 MRI of Ligon's spine showed scoliosis, straightening of the lumbar lordosis, L2-3 and L5-S1 posterior disc bulges, and L3-4 and L4-5 posterior disc herniations with flattening of the ventral thecal sac. R. 149.

Berkowitz evaluated Ligon again after the MRI on April 22, 2004. R. 109. At that time Ligon reported that his back pain was improving with treatment but he continued to have left knee pain. Id. On examination, Ligon could extend his lower back within two degrees of full extension and flex past 100 degrees, although it was painful. Ligon had no significant anteromedial or anterolateral tenderness, but he did have some posteromedial tenderness. Berkowitz requested authorization for an MRI of the left knee. Id.

2. Dr. Jonathan Glassman

On April 28, 2004, Dr. Jonathan Glassman performed an independent medical evaluation in connection with Ligon's Workers' Compensation claim. R. 339-41. Ligon reported that his ongoing physical therapy sessions were helpful for his lumbar spine condition. Glassman's examination of the lumbar spine and the left knee led him to diagnose Ligon with internal derangement of the left knee, revolved contusion of the left leg and resolving sprain of the lumbar spine with left sided radicular complaint. He also noted that Ligon walked with a cane, had an abnormal gait and could not walk toe-heel without difficulty. He found that arthroscopy of the left knee was reasonable and stated that Ligon had a mild disability and could return to light clerical or sedentary work. Id.

Glassman re-evaluated Ligon on June 30, 2004. R. 333-36. Ligon again reported that physical therapy was helping his lumbar spine. R. 333. Although Glassman noted that Ligon was using a cane, he indicated that Ligon did not need it when distracted. R. 333-34. After conducting his physical examination, including a panoply of tests, Glassman diagnosed Ligon with (1) resolved sprain of his lumbar spine without any radicular complaints or objective clinical findings on exam; (2) resolved contusion of his left leg; and (3) left knee posttraumatic patellofemoral syndrome with suspicion of internal derangement. R. 335. Glassman recommended orthopedic follow-up for the left knee and indicated that neither further physical therapy nor surgery was necessary. Similar to the first evaluation, Glassman also expressed his opinion that Ligon had a mild disability and could return to work with limitations of not lifting or carrying greater than 30 pounds. Id. He also noted that "the injuries sustained and the accident reported [we]re causally related." R. 336.

A physical therapist performed range of motion testing on November 11, 2003 and June 25, 2004, which revealed a total spine range of motion impairment of 8-11% and a whole person impairment of 15-16%. R. 113-22.

3. Ligon's Knee Surgery

On August 20, 2004, Berkowitz performed arthroscopic surgery on Ligon's left knee for internal knee derangement. R. 152. The post-operative diagnosis was hypertrophic synovitis*fn5 and debris of the patellofermoral joint. Id. An August 26, 2004 letter from Berkowitz reporting Ligon's post-operative condition to Morgenstern indicated that Ligon's wounds showed no signs of infection but that he had reduced range of motion in all planes with swelling. Berkowitz advised physical rehabilitation as soon as possible. R. 107. A second letter from Berkowitz to Morgenstern followed on December 9, 2004, in which Berkowitz reported that examination of Ligon showed that he could extend his knee nearly fully and flex to about 90 degrees, and that there was no effusion or joint line tenderness. R. 106. Berkowitz recommended a brace for Ligon because he reported difficulty going up and down stairs and used a cane to do so because he felt that his knee might give out. Id.

On February 24, 2005, Ligon met with Morgenstern, complaining of left knee pain accompanied by buckling of the knee as well as low back pain radiating to his left leg. R. 125. Morgenstern advised him to use a cane and the brace and to follow up with his orthopedist, Berkowitz, for his knee pain. Id. Morgenstern also discontinued ...

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