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Thomas C. Van Meter v. Michael J. Astrue Commissioner of

December 16, 2010

THOMAS C. VAN METER, PLAINTIFF,
v.
MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila Finnegan, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Thomas C. Van Meter seeks to overturn the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. §§ 416, 423(d). The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and filed cross-motions for summary judgment. On April 26, 2010, the case was reassigned to this Court for all further proceedings. After careful review of the record, the Court now denies Plaintiff's motion and grants the Commissioner's motion.

PROCEDURAL HISTORY

Plaintiff applied for DIB on July 6, 2005, alleging that he became disabled on May 13, 2005 from irritable bowel syndrome ("IBS") and a torn left rotator cuff. (R. 69, 90, 93-94.) The Social Security Administration ("SSA") denied the application initially on February 27, 2006, and again on reconsideration on June 29, 2006. (R. 49-55, 57-61.) Pursuant to Plaintiff's timely request, Administrative Law Judge ("ALJ") Janice M. Bruning held an administrative hearing on October 3, 2007. The ALJ heard testimony from Plaintiff, who appeared with counsel, and from vocational expert ("VE") James Breen. A little less than two months later, on November 19, 2007, the ALJ found that Plaintiff is capable of performing his past relevant bricklayer work "as actually performed," as well as a significant number of other medium jobs available in the national economy. (R. 11-17.) The Appeals Council denied Plaintiff's request for review on March 25, 2009, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 1-4.)

In support of his request for reversal and remand, Plaintiff argues that the ALJ (1) erred in weighing the medical opinions of his treating physician, Dr. Sunil Joseph, (2) improperly relied on flawed VE testimony, (3) failed to properly assess his credibility, and

(4) erred in finding that his work for Northwest Masonry in 2006 constituted substantial gainful activity ("SGA"). For reasons discussed below, the Court rejects these arguments.

FACTUAL BACKGROUND*fn1

Plaintiff was born on July 7, 1947, and was 60 years old at the time of the ALJ's decision. (R. 69.) He completed high school and one year of college before serving a full apprenticeship to become a bricklayer. (R. 31.) Plaintiff worked as a brick mason for the State of Illinois from January 1988 to January 1997. He also worked as a bricklayer for his friend Val Thompson of Northwest Masonry, Inc. from 1987 to 1993 or 1994. (R. 94, 147.) In May 1998, Plaintiff was assigned to work as a light duty brick mason at the State of Illinois Elgin Mental Health Center. He continued working there until May 13, 2005, when his position was eliminated. (R. 70, 94, 107.) Despite claiming that he was unable to work as of that date, Plaintiff collected six months of unemployment insurance after the layoff, then spent four weeks working for Illinois Masonry Corporation in 2006. (R. 13, 84, 88.) On June 12, 2006, Plaintiff started a part-time maintenance bricklayer job with Mr. Thompson's company, earning nearly $15,500 for six months of work through December 15, 2006. That job ended due to a lack of work in the housing/construction industry, and Plaintiff collected another six months of unemployment benefits from January to July 2007.

(R. 33.)

A. Medical History

1. 1998 through 2001

Plaintiff was first diagnosed with possible IBS in November 1998 when he saw Dr. Michael J. Colligan at Elgin Gastroenterology due to a six-month history of lower abdominal pain. Plaintiff complained of an intermittent, sharp and cramping sensation associated with some rectal urgency, and reported one isolated episode of bright red rectal bleeding. He described having two or three formed stools every morning, compared with a history of only one bowel movement per day. (R. 189.) At that time, Plaintiff was taking two FiberCon pills and a Zantac each day, and he complained of gastroesophageal reflux. Dr. Colligan noted that a recent CT scan of Plaintiff's abdomen was normal, and diagnosed "[c]hronic lower abdominal pain, change in bowel pattern, and rectal bleeding - etiology undetermined." (Id.) Dr. Colligan scheduled Plaintiff for a colonoscopy and stated that if the results were negative, he would treat Plaintiff for IBS by "intensifying acid suppression and adding antispasmodic to the FiberCon." (R. 190.)

The record does not contain the 1998 colonoscopy report, but Dr. Colligan noted in January 2002 that the test had showed non-specific colitis and diverticulosis, with no evidence of inflammatory bowel disease. (R. 187.) Plaintiff was not placed on any treatment at that time, and he did not see Dr. Colligan again until November 26, 2001, when he returned complaining of chest pain and dysphagia (difficulty swallowing). Dr. Colligan noted a history of gastroesophageal reflux disease ("GERD") and difficulty taking Prevacid due to side effects. (R. 187, 190.) He diagnosed GERD-induced esophageal spasm and prescribed AcipHex. (R. 190.)

2. 2002

On January 7, 2002, Plaintiff saw Dr. Colligan for a follow-up on his GERD symptoms. Both Plaintiff's dysphagia and chest pain had resolved on the AcipHex, and Dr. Colligan referred him for an esophagogastroduodenoscopy ("EGD") to screen for Barrett's esophagus*fn2 and reflux esophagitis. (R. 187.) The record does not contain the EGD report, which according to Dr. Colligan's notes occurred in either February or April 2002. In any event, Dr. Colligan noted that the test revealed a non-obstructing Schatzki's ring,*fn3 hiatal hernia, hyperplastic gastric polyp, and duodenitis (inflammation of the first part of the small intestine). (R. 185, 186.) When Plaintiff saw Dr. Colligan on July 10, 2002, he continued to do well on the AcipHex and FiberCon. Dr. Colligan diagnosed GERD, non-obstructing Schatzki's ring, and non-specific left-sided colitis, and advised Plaintiff to add a trial of Probiotica to his daily medication regimen. Dr. Colligan told Plaintiff to follow-up with him in one year. (R. 186.)

3. 2003 through 2004

At his annual visit with Dr. Colligan on August 27, 2003, Plaintiff's GERD symptoms were under excellent control with AcipHex, and his chronic diarrhea was controlled well with Imodium. He was still having two to three bowel movements per day and occasional nocturnal stools and urgency due to his IBS, but he denied any bleeding. Dr. Colligan refilled Plaintiff's prescriptions and instructed him to follow up again in one year. (R. 185.) At that July 7, 2004 check-up, Plaintiff was still doing well with his medications. (R. 184.) A few months later, however, Plaintiff went to Dr. Colligan complaining of a change in bowel pattern manifested by nightly episodes of being awakened by lower abdominal cramping associated with passage of several stools. Dr. Colligan diagnosed an acute episode of left-sided non-specific colitis and discussed the possibility of another colonoscopy if Plaintiff's symptoms did not improve. (R. 183-84.) He instructed Plaintiff to continue taking AcipHex and Loperamide, and to start taking Librax for his symptoms. (R. 183.)

4. 2005

By December 14, 2004, Plaintiff was not feeling better, so he scheduled a colonoscopy for January 17, 2005. (Id.) The test showed mild diverticulosis and internal hemorrhoids but was otherwise normal. (R. 180-82.) Dr. Colligan stated that the cause of Plaintiff's episodic urgency and diarrhea was "not totally explained," but he assumed, based on the negative screening results, that the symptoms were caused by IBS/diverticulosis, and he continued treating Plaintiff accordingly. (R. 179.)

More than five months later, on July 6, 2005, Plaintiff started seeing Dr. Sunil Joseph at Elgin Gastroenterology for his IBS. Plaintiff told Dr. Joseph that when he had an episode of bilateral lower quadrant pain followed by loose, smaller bowel movements, he needed to be very close to a bathroom to prevent an accident, something his previous job with the State of Illinois had allowed. His new job, however, "caused some difficulty with his symptoms."*fn4 Dr. Joseph noted that Plaintiff's symptoms appeared stable at that time, and instructed him to continue taking Imodium and Librax and return in one year. (R. 178.)

On August 1, 2005, Dr. Joseph sent Plaintiff's attorney a narrative report summarizing Plaintiff's condition and treatment. After describing the contents of the treatment notes, Dr. Joseph stated that Plaintiff's IBS symptoms were stable, with his main complaint being intermittent episodes of lower abdominal cramping and diarrhea. Those symptoms, however, were well-controlled with Imodium and Librax. According to Dr. Joseph, the symptoms "may be limiting in the patient in that he needs close proximity to a bathroom during an acute episode of his symptomatology," but "[t]here are no other physical limitations on a regular basis aside [from] during his acute episodes." (R. 177.)

On September 13, 2005, Plaintiff saw Dr. Gregory T. Winters of the Winters Family Practice for evaluation of an abdominal hernia. Plaintiff denied experiencing any pain, discomfort, nausea, vomiting or diarrhea at that time, but Dr. Winters referred him for a surgical consultation. (R. 221.) Dr. George Bardouniotis examined Plaintiff on September 27, 2005, and reported to Dr. Winters that Plaintiff's rectus diastasis did not require repair and that he did not have a true hernia. Dr. Bardouniotis stated that Plaintiff "may have a small umbilical hernia" and should return for re-examination if it should ever grow or bother him.*fn5 (R. 230.)

Two days later, on September 29, 2005, Dr. Joseph completed a Gastrointestinal Disorders Impairment Questionnaire for Plaintiff's attorney. (R. 152-57.) Dr. Joseph confirmed Plaintiff's diagnosis of IBS with intermittent lower abdominal pain and cramps followed by diarrhea. (R. 152-53.) He opined that Plaintiff's symptoms would seldom be severe enough to interfere with attention and concentration, and that he is capable of moderate stress. In Dr. Joseph's view, Plaintiff can sit for eight hours and stand for two hours in an eight-hour workday, and he can occasionally lift and carry over 50 pounds. (R. 155-56.) Dr. Joseph checked a box estimating that Plaintiff would likely miss work "[a]bout two to three times a month," but he made clear that Plaintiff's "only real impairment is he needs close proximity to [a] bathroom when he has [an] attack of IBS." (R. 156.) Dr. Joseph further explained that Plaintiff would have 5 to 10 minutes advance notice of his need for a restroom break, and he would need to be away from his work space for 15 minutes. (R. 157.)

5. 2006 through 2007

Several months later, on January 20, 2006, Dr. Joseph completed a Gastrointestinal Report on Plaintiff for the Bureau of Disability Determination Services ("DDS"). Dr. Joseph again confirmed Plaintiff's diagnosis of IBS, along with diverticulosis and internal hemorrhoids, and he described symptoms of recurrent abdominal pain relieved by bowel movements. Dr. Joseph reiterated that Plaintiff is limited in working if he has no ready access to a bathroom, but that he otherwise has no true physical limitations. (R. 150-51.)

On January 31, 2006, Dr. Roopa K. Karri conducted an Internal Medicine Consultative Examination of Plaintiff for DDS. (R. 158-61.) Plaintiff told Dr. Karri that he had been able to work despite his eight-year history of IBS, but that he was laid off the previous year and was having difficulty finding a job. He complained of a lot of bloating, gas and diarrhea about eight times in two hours, or one to two times per day. In addition, Plaintiff stated that he has occasional accidents with his bowel movements and needs to be near a bathroom all the time. He reported, however, that his left shoulder rotator cuff was "better now," ...


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