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Wayne Edward Chandler v. Commissioner of Social Security

May 29, 2012


The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge


Plaintiff Wayne Edward Chandler ("Chandler") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security ("Commissioner") denying his application for benefits under the Social Security Act. Chandler moves for a finding of disability and the Commissioner cross-moves for a judgment on the pleadings. Dkt. Nos. 10, 11. For the reasons which follow, Chandler's motion is granted and the Commissioner's decision be remanded for further proceedings.

I. Background

A. Facts

Born on November 13, 1967, Chandler was forty years old when he applied for disability benefits. T. 14.*fn2 Chandler completed ninth grade in a regular, matriculated program, but did not later receive his General Education Degree ("GED"). T. 24. Chandler can read and write. T. 24. Chandler has two children but lives alone, receiving daily visits from the children's mother who assists him with his daily needs by shopping for groceries and doing his laundry. T. 23, 38-40. Chandler previously worked in physically laborious jobs, including as a meatpacker, night time cleaner, baggage handler, and dishwasher. T. 26. Chandler alleges an inability to work due to hypertension and chronic arthritis, which affected his feet and ankles and, just recently at the time of his testimony, began also affecting his back. T. 26-29.

1. Notes with Treating Orthopaedist Dr. Lisella

a. Ankle

On February 21, 2008, Chandler went to Albany Medical Center because he was in a lot of pain and could barely walk. T. 188. Chandler had previously had surgery on his right ankle in the early 1990s and was experiencing extreme pain in his ankle, though he was "feeling well and [did] not have any other areas of discomfort." T. 188. Radiology results showed "severe degenerative joint disease with very little joint space."

T. 188. The doctors concluded that Chandler had "[m]arked post-traumatic arthritis . . . ." in his ankle. T. 187. The condition was "chronic . . . and unlikely to change . . . ." T. 189.

On February 25, 2008, Chandler met with Dr. Lisella at Capital Region Orthopaedics. T. 200-201. Dr. Lisella's examination showed significant swelling and loss of range of motion in Chandler's right ankle. T. 200. However, there was no pain in his foot and "[t]he rest of his neurovascular and musculoskeletal examination [wa]s noncontributory [and his u]pper extremity joints all show[ed] good pain free range of motion, pulses, sensation, and reflexes." T. 200. On April 4, 2008, Dr. Lisella performed an ankle fusion to correct the problem. T. 192-93, 200-201.

On April 22, 2008, Chandler was noted to be "doing very well" with "excellent position of the bone and hardware" seen on x-rays. T. 197. Chandler returned on May 14 with similar reports, "doing very well . . . minimal [swelling] . . . hardware . . . in excellent position [and] . . . almost complete fusion of the ankle." T. 196. Dr. Lisella recommended progressive weightbearing and prescribed Chandler a walking boot. T. 196. When Chandler returned in June, he was still doing well with "no pain with [his] range of motion." T. 195. Chandler was cleared for regular activity with the exception of work and heavy lifting. T. 195. It was anticipated that Chandler could return to work after the next check up.

Chandler was last seen August 18, 2008. T. 194. He continued to progress with a "well-healed incision, no motion at the ankle joint, [and] no significant pain." T. 194.

The fusion was "in [a] good position", as was the bone, so Chandler was allowed to continue with his regular activities, including returning to work. T. 194. Chandler stated that he was still limited at work due to occasional pain and stiffness, but overall he had experienced a good result. T. 194. On November 3, 2008, Dr. Lisella noted that Chandler was "doing very well" still from the ankle fusion that had been completed seven months earlier. T. 248.

b. Great Toe

On September 23, 2008, Chandler returned to Dr. Lisella with complaints of left great toe pain and swelling. T. 204. While the problem had persisted for years, it had flared up in the past few days. T. 204. Physical examination showed pain and tenderness over portions of the bones of the left, great toe, but none with its range of motion. T. 204. Further examination found "[n]o other areas of tenderness, good range of motion of his foot and ankle, good strength in his tendons[, and t]he rest of his nuerovascular [and] musculoskeletal exam [wa]s noncontributory." T. 204. X-rays were taken which showed a probable, prior, healed fracture. T. 204. Dr. Lisella recommended "anti-inflammatories, activity modification, and postop shoe[s]." T. 204.

On January 14, 2009, after conservative treatments had failed, Chandler underwent another operation with Dr. Lisella to remove the sesamoid bone in his great toe. T. 246-48. On February 2, 2009, examination showed that he was doing well and radiology results indicated that there were no bony fragments in his toe. T. 245. Chandler returned again, two weeks later, with "minimal swelling, but . . . still . . . some pain and stiffness in the joint." T. 244. Chandler was recommended to continue wearing his postop shoe and to follow up again in a month. T. 244.

c. Employability Assessments

On November 3, 2008, Dr. Lisella completed his first assessment. T. 219-20. He indicated that Chandler was moderately limited in his abilities to (1) walk, (2) stand, (3) lift and carry, (4) push, pull or bend, and (5) climb or use stairs. T. 219. Dr. Lisella found no other physical or mental limitations. T. 219-20. Dr. Lisella concluded that Chander was "temporarily, totally disabled," but that the restrictions would not last longer then ninety days. T. 220. On March 16, 2009, Dr. Lisella completed his second report which stated that Chandler was unable to work. T. 242. Dr. Lisella found the same moderate impairments which were previously noted in November 2008. T. 242-43. Dr. Lisella also concluded that Chandler required a job with limited walking, namely a "sedentary job[]." T. 243. On June 17, 2009, Dr. Lisella completed his final report which stated that Chandler was very limited in his abilities to (1) walk, (2) stand, (3) lift and carry, and (4) climb. T. 240. No other limitations were noted. T. 240-41. Dr. Lisella indicated that Chandler's limitation with walking, carrying objects, and standing for extended amounts of time resulted in a situation where Chandler required "a sedentary type job." T. 241.

2. Treating Physician Dr. Scher

Chandler was seen by Dr. Scher in 2004 and 2005. T. 256-62. On February 4, 2008, Chandler returned to the office stating that he had stopped all blood pressure medications and had a resulting blood pressure of 212/220. T. 210-11, 254. Chandler was urged to restart his medication and counseled to stop smoking. T. 254. In a report dictated October 20, 2008, Dr. Scher reported that Chandler had a history of hypertension, he was not currently taking any blood pressure medications, and his last visit was in February. T. 210. As Chandler had not returned to Dr. Scher's office, "[n]o other comments c[ould] be made on the disability . . . . " T. 211.

Chandler again returned on March 20, 2009, again stating that he was not on any blood pressure medication and had not been for the past year. T. 253. Chandler was counseled on the importance of maintaining appointments and medication, as his blood pressure was again high at 220/140. T. 253. A physical examination and an EKG were scheduled. T. 253. On March 26, Chandler underwent a physical examination whereupon his previous non-compliance with his medication was noted, but so was his present adherence to his medication regimen. T. 251. Upon examination, Chandler reported no issues with his musculoskeletal system and denied "any gait abnormality, myalgia, muscular weakness, [or] night cramps." T. 251. Chandler's back demonstrated a normal curvature, full range of motion, and no points of tenderness. T. 252. His blood pressure was markedly improved at 138/86. T. 251.

Chandler was seen again on July 9, 2009, with a blood pressure reading of 130/82. T. 250. Dr. Scher counseled him on diet and exercise and referred him to a cardiologist for his abnormal EKG. T. 250. However, in October, Chandler returned again disclosing his non-compliance with his medication. T. 273. Chandler stated that because of a "poor financial situation," he was unable to take his medication and his blood pressure consequently increased to 180/118. T. 273. Dr. Scher's office offered assistance with securing insurance and counseled him on the importance of finding generics and continuing to follow up with the office. T. 273.

3. Physical Therapy

Chandler underwent physical therapy from March 27 through April 23, 2009, for nine treatment sessions. T. 237-38. By the end of his therapy, Chandler was (1) no longer complaining of pain when standing and weight bearing; (2) able to toe raise, heel raise, and heel walk, had improved in flexibility and ability to toe walk; and (3) within normal limits regarding his gait. T. 233-35. The ultimate conclusion was that Chandler had "reached [his] maximum therapeutic benefit." T. 235. As all ...

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