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Vandevelde v. Astrue

August 4, 2010

FRANK VANDEVELDE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

A. Introduction

Pursuant to 42 U.S.C. § 405(g), Frank Vandevelde petitions this Court to review the final decision of the Commissioner of Social Security denying Vandevelde's application for disability insurance benefits (DIB) under the Social Security Act, 42 U.S.C. § 423(a), et seq. As is discussed further below, in conducting judicial review under § 405(g), a district court is limited to determining whether the Commissioner's decision is "supported by substantial evidence and based on the proper legal criteria." Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005), citing Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004).

The court should consider the evidence that supports and the evidence that detracts from the Commissioner's decision, and "the decision cannot stand if it lacks evidentiary support or an adequate discussion of the issues." Briscoe, 425 F.3d at 351, citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).

The parties have submitted the administrative record (Doc. 10, "R.") and fully briefed their positions (Docs. 17, 23). For the reasons stated below, the Court affirms the Commissioner's decision.

B. Procedural Overview and Issues Presented

Alleging that he was disabled due to arthritis and degenerative disc disease beginning September 30, 1999, Vandevelde applied for a period of disability and DIB on September 13, 2005. The Social Security Administration initially denied the claim November 8, 2005 and denied it again via reconsideration on February 15, 2006. Vandevelde timely requested a hearing in April 2006, which was held before Administrative Law Judge (ALJ) Lawrence D. Wheeler in September 2008. At the hearing, Vandevelde amended his disability onset date to June 20, 2003.

On October 27, 2008, ALJ Wheeler found Vandevelde not entitled to DIB. Vandevelde sought review from the Appeals Council of the Social Security Administration. The Appeals Council denied that request on March 20, 2009, rendering the ALJ's decision the final decision of the Commissioner. 20 C.F.R. § 416.1481; Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008). That final decision comes now before this Court for review.

The issues are whether the ALJ properly evaluated the medical opinions in the record, adequately explained his reasoning, and was required to obtain medical expert testimony before reaching his decision.

C. Summary of Medical History and Evidence Frank

Vandevelde was born February 13, 1952. He completed tenth grade, completed a trade school course in diesel truck mechanics, and had past relevant work as a mechanic. He was 51 years old as of his amended alleged disability onset date -- June 20, 2003. He was 54 years old as of his date last insured -- September 30, 2006. He claimed disability resulting from rheumatoid arthritis and degenerative disc disease of the spine.

Vandevelde had worked as a diesel truck mechanic. He performed mechanical work on containers and trucks, used tools and equipment involving technical knowledge and skills, and wrote reports (Tr. 98). He performed his job from approximately January 1972 until September 1999 (Tr. 98). Vandevelde estimated that a typical day in that position required him to walk for two hours, stand for four hours, sit for one hour, climb for three hours, stoop for three hours, kneel for three hours, crouch for three hours, crawl for three hours, handle or grasp objects for six hours, reach for four hours, and write, type or handle small objects for two hours (Tr. 98). The job required lifting and carrying parts, brake drums, brake shoes and steel beams of 50 pounds or more frequently, and 100 pounds or more occasionally (Tr. 99).

Vandevelde testified at his September 2008 hearing as follows. After September 1999 and up through 2006, he continued to work part-time out of his basement, rebuilding antique motorcycle generators (Tr. 27-28). He could no longer work his full-time mechanic job, because he could not stand on his feet for any period of time, walking caused him difficulty, and he had pain in his back and ankles. He had been in two automobile accidents, had a whiplash injury to his neck, had a work-related back injury, and had been living with back problems since he was a teenager. He stayed home most of the time, rarely went shopping, had trouble ascending and descending stairs, and drove only when necessary.

Dr. Brian M. Ralston saw Vandevelde on January 5, 1998, for pain from an ankle injury caused by a motorcycle "kick-back." After the injury, Vandevelde reported to the emergency room. Ankle x-rays were negative. Dr. Ralston noted that Vandevelde had no history of ankle or foot injury. Upon examination, Vandevelde's right ankle revealed mild ecchymosis*fn1 with moderate tenderness over the posteromedial tendons extending a short distance up the medial leg. Vandevelde's Achilles tendon was intact, and he had no tenderness of the proximal fibula, malleoli,*fn2 navicular or fifth metatarsal, deltoid, or lateral ligaments; nor did he have any lacerations or abrasions. Dr. Ralston suspected a hyper-dorsiflexion/eversion injury. He recommended Vandevelde continue to use an air cast and attempt to maintain a normal gait. He prescribed treatment with ice and ibuprofen. Dr. Ralston restricted Vandevelde's work, recommending standing and walking only 10 percent of the time with no climbing, working at heights, or driving industrial vehicles (Tr. 146).

Dr. Ralston saw Vandevelde on January 12, 1998, as a follow up on the ankle injury. Dr. Ralston again noted that medical findings were consistent with an eversion and dorsiflexion mechanism, causing strain to the posteromedial tendons. Dr. Ralston noted that Vandevelde had been using an air cast and claimed 25-50 percent improvement. Dr. Ralston continued work restrictions, limiting Vandevelde's standing/walking to only 50 percent of the time and sitting 50 percent of the time, with no driving industrial vehicles or lifting more than 30 pounds (Tr. 145).

On January 20, 1998, Vandevelde reported 50 percent improvement in his ankle. Vandevelde was not working at that time, because light duty work was not available. Dr. Ralston noted that Vandevelde had a mildly antalgic gait, had difficulty squatting due to discomfort, but was able to squat and get back up while holding on to the exam table.

Vandevelde had 75 percent range of motion in the ankle with only mild tenderness on the posterolateral ankle and lower leg. Dr. Ralston referred Vandevelde to physical therapy for three weeks. He continued the work restrictions of 50 percent standing/walking and 50 percent sitting, but he allowed occasional stooping, squatting and driving of industrial vehicles (Tr. 144).

At a February 3, 1998 examination, Dr. Ralston noted that Vandevelde continued to improve but experienced soreness when he stooped or depressed the brake pedal while driving. Dr. Ralston further noted that Vandevelde felt he could return to work on a trial basis. At that time Vandevelde had attended four sessions of physical therapy. Vandevelde exhibited a slow but non-antalgic gait, he transferred easily, and he had full range of motion in the right ankle. Vandevelde had mild ankle tenderness. Vandevelde was encouraged to try regular work duty but to contact Dr. Ralston if he felt unsafe with any activities. He ordered Vandevelde to continue physical therapy and to use over-the-counter orthotics to prevent pronation (Tr. 143).

On March 20, 1998, Dr. Ralston noted that Vandevelde was working full duty with discomfort. He also noted a mildly antalgic gait, mild tenderness over the posteromedial ligaments and mild bilateral pronation. He referred Vandevelde to a podiatrist for further evaluation/recommendations (Tr. 142).

On October 29, 1998, Vandevelde visited Berwyn Magnetic Resonance Center for an examination of his right ankle and foot. Dr. M. Bresler, a radiologist, reported that the exam revealed intact alignment at the ankle joint with preserved ankle mortise and talar dome. There were no abnormal fluid collections, and there was no evidence of tearing (Tr. 147).

On July 13, 1998, Vandevelde saw Dr. Bruce Rachum, a chiropractor, for an initial exam of his lumbar spine. Dr. Rachum noted that Vandevelde had experienced lower back pain for one to two days. Vandevelde told Dr. Rachum that the pain began after he lifted and carried a table. Dr. Rachum also noted Vandevelde's previous right ankle injury, a history of motorcycle accidents, and history of periodic back pain, the most recent episode of which had occurred a few years prior. Vandevelde had taken Ibuprofen in the past for pain relief but was not suffering from any other conditions at the time or taking any medication (Tr. 176-77). On a scale from zero to ten, Vandevelde rated his neck pain as a four and his back pain as an eight (Tr. 175). Vandevelde reported improvement on July 15 and 20, 1998 (Tr. 174).

On December 15, 1998, Vandevelde saw Dr. Slobodan Vucicevic, an orthopedist, for right ankle pain. Vandevelde reported taking ibuprofen for pain. Dr. Vucicevic reviewed Vandevelde's MRI results, which showed normal tendon structures, and ruled out a suspected tear of the tibialis tendon. Dr. Vucicevic noted that Vandevelde was 46 years old at the time of visit, stood 6'4", and weighed 210 pounds. He was able to get off the stool he was sitting on when he came into the exam room and was able to walk through the office, although he slightly favored his right leg. He was able to push on toes and heels and had "vague" discomfort. Dr. Vucicevic noted no excessive swelling or trigger points, an uncompromised range of motion, and intact neurovascular status.

Dr. Vucicevic's impression of Vandevelde's condition was tendonitis/sprain. He recommended conservative treatment and determined that Vandevelde could perform regular-duty work at that time (Tr. 191). Dr. Vucicevic prescribed Vandevelde Indocin*fn3 and Medrol (a steroid) (Tr. 192). He ordered physical therapy, which was to include whirlpool treatment, phonophoresis, exercises and strengthening (Tr. 192). When Vandevelde returned for a second visit on December 28, 1998, Dr. Vucicevic noted Vandevelde had taken all of his medication regularly and did well until the steroids (Medrol) ran out. Vandevelde had been crawling around on the floor setting up Christmas decorations and may have "tweaked" his ankle (Tr. 192).

On January 19, 1999, Dr. Vucicevic noted that Vandevelde's ankle was still a problem. On February 9, 1999, Dr. Vucicevic noted that Vandevelde did not experience problems with his ankle if he took it easy, but if he put too much stress on the ankle it became painful. On that visit, Dr. Vucicevic recommended Vandevelde wear an ankle brace and gave Vandevelde a cortisol injection (Tr. 188). The notes from Vandevelde's March 9, 1999, visit are barely legible, but it appears that Vandevelde was improving, and Dr. Vucicevic noted that he was able to work (Tr. 188).

On November 3, 1999, Vandevelde reported to Dr. Rachum that his low back pain had increased due to the cold weather (Tr. 173). On November 4, 1999, Dr. Rachum noted that Vandevelde's condition was unchanged and, despite the use of a heat pack the previous night, he was unable to work that day (Tr. 173). On November 8, 1999, Dr. Rachum noted Vandevelde should "continue on disability until Wednesday." On November 10, 1999, Dr. Rachum noted Vandevelde's condition was unchanged, and he should "continue on disability through Monday" (Tr. 172).

On November 15, 1999, Dr Rachum noted that Vandevelde's condition was improving, but that he should "continue disability through this week" (Tr. 171). On November 19, 1999, Dr. Rachum noted that Vandevelde's "symptoms seem to be leveling off" (Tr. 170). On November 28, 1999, Dr. Rachum once again continued Vandevelde's disability, and on November 29, 1999, Rachum noted that Vandevelde "had a bad night Saturday -- trouble sleeping -- felt better with use of support belt" (Tr. 169).

X-rays of Vandevelde's lumbar spine taken on December 3, 1999 revealed moderate scoliosis at L3, osteoarthritis and narrowed disc spaces between L3-4, and "lumbar characteristics" on six other lumbar vertebrae (Tr. 167). On December 8, 1999, Dr. Rachum noted that Vandevelde's low back pain increased after he lifted a 50-pound case of motorcycle parts (Tr. 168). On December 20, 1999, Dr. Rachum noted that Vandevelde's condition was worse and that he was experiencing low back pain and stiffness while working on a model train set in his garage (Tr. 165). On December 29, 1999, Dr. Rachum noted that Vandevelde "woke up stiff, felt good throughout day until he used the vacuum cleaner" (Tr. 164).

On January 7, 2000, Dr. Rachum noted that Vandevelde's condition was improving and that he had been "taking it very easy at home" (Tr. 163). On January 12, 2000, Dr. Rachum provided Vandevelde with some exercises to do with a Theraband to help his low back pain (Tr. 162). On January 14, 2000, Dr. Rachum made note of decreased low back pain but some neck and upper back pain (Tr. 162). On January 19, 2000, Dr. Rachum noted that Vandevelde "had some pain yesterday doing some tiling work on bathroom wall" (Tr. 161). On January 26, 2000, Dr. Rachum noted Vandevelde's condition had worsened and he experienced pain while lifting a 5-6 pound model train (Tr. 160). Dr. Rachum recommended Vandevelde see Dr. Vucicevic as a specialist (Tr. 160).

On a referral from a Dr. Mazanec (who had treated Vandevelde's back), on February 8, 2000, Vandevelde returned to Dr. Vucicevic with complaints of low back and right ankle pain. Vandevelde was not taking any medication at the time of visit. He was 48 years old, 6'4", and approximately 220 pounds. Dr. Vucicevic noted that Vandevelde did not appear to be in acute distress. He was able to walk fairly steadily with no antalgic gait, to walk on toes and heels, and to squat and get up without the support of a table or chair. He had nearly full flexion in a standing position and only minimal tightness in the paraspinal muscles. There were no signs of radiculopathy. Straight leg and stretch tests were negative. Sensation was not altered, nor was vascularity impaired. His ankles revealed signs of arthritic changes.

Dr. Vucicevic's impression was low back pain without radiculopathy, mild myofascial sprain, and mild facet joint arthritis (Tr. 186). Dr. Vucicevic recommended Vandevelde continue with physical therapy to include hot packs, ultrasounds, range of motion exercises, and gentle strengthening to lower back. Dr. Vucicevic also suggested Vandevelde take Indocin and Flexeril*fn4 (Tr. 187).

On February 9, 2000, Dr Rachum noted that Dr. Vucicevic had prescribed Vandevelde unspecified medications and recommended he not work for two weeks (Tr. 158). On February 14, 2000, Dr. Rachum noted that Vandevelde's condition was improving, but he experienced low back pain when he moved his motorcycle in the garage, and the pain interfered with housework (Tr. 157). On February 23, 2000, Dr. Rachum noted that Dr. Vucicevic had recommended Vandevelde retire from work as a mechanic and look into receiving disability benefits (Tr. 156).

Vandevelde returned to Dr. Vucicevic on February 22, 2000, complaining of re-injury. Dr. Vucicevic noted that anything beyond minor exertion caused Vandevelde pain. He opined that Vandevelde's recent injury did "not correlate with facet joint irritation" but likely was caused when he did not balance his weight properly pushing a snow blower (Tr. 185). Dr. Vucicevic advised Vandevelde to bend and lift using his hips and knees to take stress off his lower back. He directed Vandevelde to continue taking Aleve and prescribed Vicodin*fn5 for extreme pain. Dr. Vucicevic opined that symptomatic management was the best way to handle Vandevelde's condition at that time (Tr. 185).

On August 26, 2002, Dr. Rachum saw Vandevelde for a new onset of lower back pain (Tr. 153-55). On September 10, 2002, Dr. Rachum noted that Vandevelde was "feeling pretty good," and his condition was improving (Tr. 152). On September 19, 2002, Dr. Rachum noted that Vandevelde's pain was acute. He was experiencing neck pain, but his lower back pain had improved (Tr. 152). On September 23, 2002, Vandevelde reported persistent neck pain that had worsened over the weekend (Tr. 149).

Vandevelde saw Dr. Vucicevic again on April 22, 2003. He opined that Vandevelde suffered from multiple joint, cervical spine, and lower back pain, and ankle sprain. Dr. Vucicevic prescribed Vioxx, or in the alternative, Aleve. He referred Vandevelde to a rheumatologist for evaluation of systemic ...


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