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Vandevort v. Colvin

United States District Court, W.D. Missouri, Southern Division

February 26, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


NANETTE K. LAUGHREY, District Judge.

Before the Court is Plaintiff Warren Vandevort's appeal of the Commissioner of Social Security's final decision denying his application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. [Doc. 19]. For the following reasons, the Commissioner's decision is affirmed.

I. Background

Vandevort was born in 1964 and has a high school education. He alleges he became disabled on November 1, 2008. Vandevort first filed an application for disability benefits in February 2009. After a hearing in July 2010, [Tr. 33-57], an administrative law judge (ALJ) determined that Vandevort was not disabled, [Tr. 160-67]. Vandevort appealed that decision to the Appeals Council, and the Appeals Council issued a decision remanding the case for further consideration. [Tr. 171-75]. A second hearing before a different ALJ was held in July 2012, [Tr. 60-83], and that ALJ also determined that Vandevort was not disabled, [Tr. 12-25]. The Appeals Council issued a decision denying Vandevort's request for review, and Vandevort initiated this appeal.

A. Medical History

Vandevort alleges he is disabled from the combined effects of left shoulder impingement syndrome (status post-surgery), degenerative disc disease, low back pain radiating into the shoulder blades, right knee pain (status post-surgery), vision problems, tinnitus in both ears, migraines, difficulty with memory and concentration, mood swings, depression, and methamphetamine use in sustained remission. [Doc. 19, p. 8].

In June 2008, Vandevort underwent a CT after complaining of headaches and ringing in his ears. The CT scan was unremarkable. [Tr. 465-66]. Subsequent vision testing revealed that Vandevort has 20/50 vision in his right eye and 20/60 vision in his left. [Tr. 382-83]. A CT scan in 2009 was also normal, although bilateral ethmoid and left maxillary sinusitis had developed since the previous scan. [Tr. 445-46]. A study in August 2009 suggested that Vandevort had a central nervous system lesion. [Tr. 439]. He underwent a nasal septoplasty and bilateral inferior turbinate turbinoplasty in December 2009 for an obstructing nasal septal deformity. [Tr. 440-41]. In July 2011, he had 20/40 vision in his right eye and 20/50 vision in his left. [Tr. 691]. Vandevort was treated for hearing loss in February 2012. [Tr. 651-59].

Vandevort complained of left shoulder pain in October 2009. In September 2011, Vandevort was unable to lift his left arm above his head. [Tr. 699-701]. Vandevort underwent arthroscopic repair surgery in October 2011to correct an impingement. [Tr. 661-62]. The pain in his shoulder remained after the surgery, but at his hearing in July 2012, Vandevort testified that was some improvement post-surgery. He could not completely raise it over his head and he experienced pain in reaching, but he had no problems reaching away from his body to the front or to the side. [Tr. 64-65].

Vandevort also complained of low back pain. Views of his lumbar spine in May 2010 revealed no acute abnormalities and no significant degenerative disc disease. [Tr. 467]. Vandevort's treating physician also reviewed the x-rays and assessed degenerative disc disease despite also stating that his musculoskeletal system was normal upon examination. [Tr. 471]. At his hearing, Vandevort described the pain as a consistent five out of ten but stated that he had not discussed surgery or pain management options with his doctor. [Tr. 67].

Vandevort also has a history of pain associated with an ACL injury. He had ACL surgery several years prior. At his hearing, Vandevort stated that his knee hurts all the time, pops when he bends it, and swells during the day. [Tr. 65-66]. He rated his pain at a four or five out of ten. He stated that he had not discussed additional treatment for his knee. [Tr. 65]. Vandevort managed his back and knee pain with over-the-counter medication like Tylenol. [Tr. 68]. He testified that Tylenol usually reduces the swelling in his knee and dulls the pain in his back "a little bit." [Tr. 40, 68].

Vandevort also has a history of mental impairments that have been diagnosed as severe, recurrent major depressive disorder, anxiety, bipolar disorder, and aggressive behavioral disorder, with major depressive disorder being the most common diagnosis. Vandevort testified that depression sometimes affects his ability to sleep and eat. When he is depressed, he has no energy, has difficulty concentrating, and is suspicious of others in crowds. He also avoids people because he "can't stand them." [Tr. 74].

In June 2009, a licensed counselor and social worked noted that Vandevort had never been seen for outpatient mental health services, but was experiencing depression following the death of his brother. [Tr. 476, 496]. A non-examining state agency consultant filled out a Psychiatric Review Technique after reviewing the available medical records, talking with Vandevort, and talking with Vandevort's father. The consultant noted that Vandevort reported little motivation, sleeping a lot, and difficulty maintaining concentration, persistence, and pace due to depression, but that these allegations were prior to Vandevort starting medication to stabilize his moods. [Tr. 397]. Vandevort's father reported that he saw Vandevort every two or three days, that Vandevort helped him with household chores, mowed his lawn, and ran errands with him. Vandevort reported to the consultant that he was taking care of himself. [Tr. 397]. After determining that Vandevort significantly improved after starting medication, the consultant opined that Vandevort had no limitations in activities of daily living, social functioning, or concentration, persistence, and pace. [Tr. 395].

In November 2009, Vandevort also underwent a psychiatric evaluation with Dr. David Fontaine, D.O. [Tr. 520-21]. Vandevort reported a depressed mood, excessive sleeping, decreased interest, low appetite, fatigue, and recurrent thoughts of death. [Tr. 520]. He was training a bird dog to occupy his time. Id. Dr. Fontaine stated that Vandevort had a neat and clean appearance, a bland affect, a neutral mood, had no psychomotor agitation or retardation, appeared to have coherent and goal-oriented thought processes, showed no evidence of hallucinations or delusions, was not actively suicidal or homicidal, was oriented, had an intact memory, and had "quite good" insight and judgment. Id. Dr. Fontaine diagnosed Vandevort with severe, recurrent major depression with antisocial traits. [Tr. 521].

In August 2010, a counselor providing an assessment stated that Vandevort had "minimal hygiene, " was cooperative, had normal speech and appropriate behavior, had thought processes within normal limits, was fully oriented and alert, had moderately impaired judgment, intact memory and ...

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