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Diane F. Vanderwelle,*Fn1 v. Michael J. Astrue

September 30, 2011


The opinion of the court was delivered by: Magistrate Judge Maria


This action was brought under 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security denying plaintiff Diane Vanderwelle's claim for Supplemental Security Income Benefits. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Vanderwelle's motion for summary judgment [Doc. No. 29] is granted in part and denied in part, and the Commissioner's motion for summary judgment [Doc. No. 35] is denied. The Court finds that this matter should be remanded to the Commissioner for further proceedings.



This case's unusually lengthy procedural history began on January 25, 1994, when Vanderwelle applied for Supplemental Security Income and Disability Insurance Benefits, alleging disability since July 7, 1993. (R. 73-76.) Her application was denied on March 11, 1994, and upon reconsideration on August 5, 1994. (R. 79-86, 111-12.) She filed a timely request for a hearing before an Administrative Law Judge ("ALJ"), and a hearing was held on July 18, 1995. (R. 32-52.) On the ALJ's own motion, a supplemental hearing took place on April 16, 1996. (R. 51, 53-72.) The ALJ's decision denying benefits was issued on September 20, 1996. (R. 11-19.) The Social Security Administration Appeals Council declined jurisdiction nearly a year later, and the decision was appealed to the United States District Court. (R. 3-4.)

Magistrate Judge Nolan then issued a memorandum opinion remanding the case to the Commissioner for further proceedings, finding that the ALJ failed to adequately articulate his grounds for rejecting the report of Vanderwelle's treating neurologist, and he did not properly evaluate her credibility. (R. 248, 250.) Magistrate Judge Nolan also noted potential bias on the ALJ's part and recommended the case be assigned to a different ALJ on remand. (R. 254.) The Appeals Council entered its remand order, assigning the case to a new ALJ per Magistrate Judge Nolan's recommendation. (R. 256-57.)

Claimant's second full hearing before an ALJ was held on April 18, 2001, (R. 422-81), and a negative decision was issued on May 11, 2001, (R. 281-89). Vanderwelle filed numerous exceptions with the Appeals Council, which remanded the case back to the same ALJ on May 31, 2003, noting a number of errors the ALJ made in applying the regulations and the District Court's remand order. (R. 302-06.) Vanderwelle's fourth hearing occurred on July 22, 2004, and the ALJ's decision denying benefits was issued on September 16, 2004. (R. 227-235, 482-546.) Vanderwelle again filed exceptions, and on November 28, 2007, the Appeals Council issued a notice that it was assuming jurisdiction. (R. 419-21.) On March 22, 2008, the Appeals Council issued the final decision of the Commissioner, which adopted the ALJ's findings entirely, but with clarifications. (R. 219-26.) The decision thus became reviewable by the District Court under 42 U.S.C. § 405(g), see Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005), and Vanderwelle filed this timely complaint for judicial review.


A. Background

Vanderwelle was born on August 4, 1955 and was forty-three years old on December 31, 1998, her date last insured. (R. 73, 76, 223, 231.) She is five feet eight inches tall and weighed about 150 pounds. (R. 129.) Her educational background includes a college degree, some post-graduate courses, and certification as a financial planner. (R. 99, 539.) The alleged onset date of disability was July 7, 1993, following a motor vehicle accident. (R. 96). The specific impairments Claimant alleges include: hyperextension injury; cervical neuropathy and compression; lumbar neuritis; cervical thoracic and lumbar subluxation; headaches; shoulder pain; cervical and lumbar myofascial pain syndrome; disc bulge at C4-5 and mild posterior protrusion at C6-7; and intractable fibromyalgia. Before the accident, Claimant had worked since 1975 as a vice president and product manager for a bank, where her duties included coordinating and supervising activities related to ATMs, computer systems, time deposit controls, checking account services, and other bank services. (R. 99, 440, 486-87, 539.)

B. Testimony and Medical Evidence

1. Vanderwelle's Testimony

Vanderwelle's main symptom is pain, which she has described as a seven or eight out of ten. (R. 497.) Her pain is in the neck and shoulders, as well as throughout her spine, and is exacerbated by any activity. (R. 494, 497.) She cannot bend or lift, nor can she sit at a desk and use a computer for more than fifteen minutes at a time. She cannot sit at a table and look down onto a pad of paper. (R. 499-500.) She sits in chairs that support her head and neck. (R. 490-91.) She had to have someone come in to help clean the house, as she cannot vacuum, stand and wash dishes, or carry a laundry basket. (R. 98, 435.) She engages in no physical activities other than walking and certain exercises ordered by her doctor. (R. 98.) She can drive only short distances, and her family has to carry the groceries into the home. (R. 492.) She gets easily fatigued, sits in a recliner four or five hours a day, and naps a couple of times a week. (R. 495-96.)

She has taken Ultram and Relafen for pain, as well as other medications for depression and insomnia, (R. 209-11), and also has utilized daily home traction, (R. 168). Prescription medications, however, sometimes did not work and/or gave Vanderwelle the side effects of headaches and nausea, so she eventually began taking only Aleve or aspirin. (R. 498-99.)

2. Medical Evidence

a. Treating Physicians

The morning after the July 7, 1993 accident, Claimant went to the emergency room, where an x-ray of her cervical spine was taken and found to be within normal limits. (R. 113-14.) Two weeks later, an orthopedic physician diagnosed Vanderwelle with cervical strain and mechanical low back pain and recommended exercises and anti-inflammatories. (R. 116-17.) Then on July 24, 1993, Dr. Robert DiMonda, a chiropractor, diagnosed cervical neuropathy-compression, lumbar radiculopathy, and traumatic arthropathy/inflammation. (R. 128-35, 165-73.)

Vanderwelle was treated by Dr. Henry Echiverri, a neurologist, between September 1993 and April 1996. He diagnosed cervical, dorsal, lumbar strain/sprain with myofascial pain syndrome, concluding that her symptoms were expected to be permanent. (R. 136, 138, 141.) Throughout October, Claimant attended eight physical therapy sessions and at the end of the month attempted to return to work.

(R. 95, 119-26, 137.) However, she stopped working again after two days due to sever pain in the neck and ...

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