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Kevin Valentine v. Michael J. Astrue

June 23, 2011

KEVIN VALENTINE , PLAINTIFF,
v.
MICHAEL J. ASTRUE , COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Martin Ashman Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Kevin Valentine ("Plaintiff") seeks judicial review of a final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("Commissioner"), denying Plaintiff's application for Supplemental Security Income benefits ("SSI") under Title II of the Social Security Act. Before this Court is Plaintiff's Motion for Summary Judgment. The parties have consented to have this Court conduct any and all proceedings in this case, including entry of final judgment. 28 U.S.C. § 636(e); N.D. Ill. R. 73.1(c). For the reasons discussed below, the Court finds that Plaintiff's motion is denied.

I. Procedural History

Plaintiff filed an application for SSI on April 12, 2004, alleging that he became disabled as of June 14, 2002. (R. 17.) The Social Security Administration ("SSA") denied the claim initially and again on reconsideration, following which an administrative hearing was held on July 6, 2006. The decision was unfavorable, following which the Appeals Council ordered the ALJ to conduct a supplemental hearing on April 21, 2009. The ALJ issued a second unfavorable decision on June 11, 2009. (R. 17-31.) Plaintiff again appealed, but this time the Appeals Council denied his request. The ALJ's order then became the Commissioner's final decision, and Plaintiff filed the instant case seeking judicial review of it on February 24, 2010.

II. Factual Background

A. Medical History

Plaintiff originally injured his back in April, 2002 while lifting and emptying a fifty-five gallon water container. (R. 242.) He initially received some physical therapy in 2003 and then had several local injections to control his pain. Neither form of treatment was helpful, (R. 242-43), and in January, 2004, Plaintiff underwent an MRI on his spine as a result of complaints of low back pain that extended down through his left leg. The report shows that some bilateral spondylosis, a form of spinal arthritis, was found at the L5/S1vertebrae, as well as a posterior disc bulge and moderate bilateral foraminal narrowing. (R. 239.)

After Plaintiff filed for SSI, he was referred to Dr. M.S. Patil for an internal medicine examination on November 18, 2004. Dr. Patil noted that Plaintiff had already undergone abdominal surgery in June, 2004. (R. 240.) However, Plaintiff was not currently complaining of any rectal bleeding or bowel dysfunction. Dr. Patil's examination showed that Plaintiff's motor strength was normal in both upper and lower extremities, and no paravertibral tenderness or spasm was noted. (R. 242.) His range of motion in the spine and back was within the normal range, and no swelling or tenderness was noted in any joints. (Id.) Dr. Patil also found that Plaintiff's cranial nerves were functioning properly, his reflexes were normal, and that he was walking with a cane. (Id.)

As part of his disability application, SSA medical consultant Dr. Kim Chansoo issued a Residual Functional Capacity ("RFC") assessment on December 13, 2004 determining that Plaintiff could lift twenty pounds occasionally and ten pounds frequently, and that he could sit, stand, and walk for six hours in a an eight-hour work day. (R. 244-51.) Dr. Chansoo noted that Plaintiff had only received conservative, non-surgical treatments for his lower back pain. The situation changed on April 28, 2005, when Dr. Hien Dang performed a discectomy surgery on Plaintiff for a bulging lumbar disc at L5/S1. (R. 465-66.) Several radiology tests ensued, and a May 2, 2005 x-ray showed that Plaintiff's lumbar spine was normal and showed no signs of spondylolisthesis.*fn1 (R. 321.) A May 12 CT Scan of the lumbar spine raised other concerns. Radiologist Dr. Krishna Parameswar concluded that Plaintiff had an abnormal narrowing of the intervertebral foramen at L5/S1 that was secondary to hypertrophy of the facet joint, possibly resulting in a compression of the nerve roots. Dr. Parameswar also stated that the study showed a marked narrowing of Plaintiff's iliac artery due to severe atherosclerotic plaque formation.

(R. 317.) Perhaps due to these conditions, a second state agency expert, Dr. Madala Vidya, concluded that Plaintiff could not walk without an assistive device. (R. 265.) Dr. Vidya reached a more restrictive conclusion than had Dr. Chansoo, stating that Plaintiff had no ability to balance or crawl and could stand or walk only two hours during a workday. (R. 258-65.)

Plaintiff was experiencing pain radiating down his legs, and several tests were done around this time to address these symptoms. Plaintiff underwent arterial Doppler studies due to the finding of an iliac artery stenosis, but the results showed a normal triphasic wave pattern in both legs. Blood flow velocities were also normal. (R. 316.) A physical exam by a vascular surgeon on June 3, 2005 showed a normal pulse in the groin, knee, feet, and ankles. (R. 313, 501.) Despite this finding, Plaintiff's treating physician, Dr. Hien Dang, concluded that Plaintiff suffered from severe vascular claudication. (R. 289.) This conclusion was part of a September 30, 2005 Disorders of the Spine Residual Capabilities Questionnaire that forms a major element of Plaintiff's current claims. Dr. Dang noted that he had been treating Plaintiff for a year and that, in addition to the vascular blockage, he also suffered from severe pain stemming from radiculopathy*fn2 and lumbar disc problems. According to Dr. Dang, Plaintiff had serious limitations to the extension and flexion of both his cervical and lumbosacral spine, had a limited ability to concentrate due to pain and fatigue, and also had a limited ability to lift, bend, stoop, and reach throughout the day. (R. 290.) Finding that Plaintiff's allegations of pain were credible, Dr. Dang concluded that Plaintiff did not have the ability to work even in a sedentary position for a full eight-hour day, five days a week. (Id.)

Plaintiff continued to receive treatment for his lower back pain over the course of the next few years, though the medical records present a disjointed picture of events that neither party has addressed. On December 8, 2005, Dr. Robert Richardson, who had assisted Dr. Dang during the discectomy surgery, performed a facet joint block on Plaintiff's L5/S1, which relieved his lower back pain, at least temporarily. Dr. Richardson diagnosed Plaintiff as suffering from lumbar facet arthritis or spondylosis. (R. 377-78.) Plaintiff continued to seek medical help at Oak Forest Hospital through the winter and spring of 2006 although, as the ALJ noted, he failed to show up for several of his appointments in this period. (R. 386.) Unlike Dr. Dang, Dr. Richardson did not fully credit Plaintiff's allegations of pain; a treatment note dated April 28, 2006 states that Plaintiff "appeared normal when not seen but extreme pain behavior when observed." (R. 391.) The note also states that Plaintiff was walking with a cane. (Id.)

In April, 2008, the emergency department of the Oak Forest Hospital referred Plaintiff to the hospital's neurology clinic for a prolapsed lumbar disk, severe back pain, and "back clicks."

(R. 462.) An MRI of the lumbar spine was conducted on June 2, 2008 that showed bilateral L5 spondylolysis without spondylolisthesis. The report notes that a posterior annular tear effaced the ventral thecal sac and abutted the nerve root sleeves. (R. 460.) L5/S1 degenerative disk disease with facet arthropathy was noted. (Id.) A September 3, 2008 CT scan of the head was unremarkable. (R. 453.)

In addition to Plaintiff's back and leg pain, he was also treated at various times for boils on his neck, head, and groin. He appears to have sought treatment on a number of occasions at the emergency room of Oak Forest Hospital in April and November, 2005, March and April, 2006, as well as on other dates that are not clearly indicated on the medical records and that the parties do not identify. (R. 326-34, 339, 410-13, 417, 426, 436, 445, 452.)

B. Hearing Testimony

Plaintiff testified at both the original hearing held on July 6, 2006 and the second hearing that took place on April 21, 2009. He stated that he could sit for fifteen to twenty minutes at a time and could stand for twenty to thirty minutes. (R. 478.) He was able to reach in all directions as well as to crawl. (R. 478-79.) Plaintiff testified that he could lift from ten to fifteen pounds but that he could not do so if required to bend over. His push/pull capacity was limited to ten to fifteen pounds. (R. 480.) His ability to do so, however, was only intermittent, and he stated that it was not possible to do so throughout an eight-hour work day. (R. 485-86.) Pain limited his sleep to two or three hours a night, as did chronic diarrhea, which Plaintiff claimed required him to visit the bathroom up to fourteen times a day. (R. 486, 491.) He was taking Tylenol 3 with codeine at that time to help control his pain; he also took hot baths twice a day and lay down for much of the day as additional measures designed to deal with the pain.

(R. 487-88.)

Medical expert Dr. Arthur Lorber, an orthopedic surgeon, also testified at the first hearing. Dr. Lorber stated that the May, 2005 CT scan showed that Plaintiff had facet joint disease at L5/S1, a disc bulge, and a narrowing of iliac vessels. (R. 497.) However, he disputed Dr. Dang's conclusion that Plaintiff suffered from vascular claudication, noting that tests showed normal circulation to the limbs. (R. 500-02.) Based on his review of the record, Dr. Lorber determined that Plaintiff had the residual capacity ("RFC") to lift ten pounds frequently and twenty occasionally. He could sit and stand for six hours a day on an intermittent basis and walk a total of six hours during an eight-hour work day. (R. 502.) However, Plaintiff could not climb ...


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