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AITKEN v. BARNHART

April 9, 2004.

JAMES F. AITKEN, Plaintiff,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant



The opinion of the court was delivered by: AMY J. ST. EVE, District Judge

MEMORANDUM OPINION AND ORDER

Pro se plaintiff James F. Aitken has moved for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, to reverse or remand the final decision of the Commissioner of the Social Security Administration (the "Commissioner"). The Commissioner's final decision denied Aitken's claim for Disability Insurance Benefits ("DIB").*fn1 under Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 1381 (a). Defendant has filed a Cross-Motion for summary judgment, requesting that the Court affirm the Commissioner's final decision. For the reasons set forth below, the Court affirms the Commissioner's final decision.

PROCEDURAL BACKGROUND

  On April 13, 1998, Aitken filed an application for DIB, alleging that he became disabled on November 23, 1985 after his foot surgery. The Commissioner denied Aikten's DIB application on May 22, 1998, on the basis that he was not disabled by the quarter last insured.

  On June 27, 2000, Aitken filed another application for DIB, again alleging that he became disabled on November 23, 1985. The Commission determined that certain evidence had not been considered in connection with Aitken's April 12, 1998 application, and accordingly reopened the May 22, 1998 determination. (R. 8-1, Transcript of Record of Proceedings, at 10-11, 66.) On March 15, 2002, Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). (Id. at 72.) On November 1, 2002, Aitken had a hearing before the ALJ. Aitken was represented by counsel at the hearing. Aitken's attorney requested a continuance to secure additional evidence, thus the ALJ held a supplemental hearing on December 11, 2002.

  On April 22, 2003, the ALJ denied Plaintiff's application for DIB, (Id. at 7-14.) On May 14, 2003, Aitken filed a request for review of the ALJ's decision on the basis that the decision was contrary to the evidence. (Id. at 6.) On June 20, 2003, the Appeals Council denied Aitken's request for review of the ALJ's April 22, 2003 decision, and the ALJ's decision became the final decision of the Commissioner. (Id. at 4-5.)

  FACTUAL BACKGROUND

 I. Plaintiff Aitken

  Plaintiff was born on August 24, 1936, and was 66 at the time of his hearing. (Id. at 29-30.) He obtained a masters degree in history in 1969 from the University of Americas. (Id. at 31.) Plaintiff was last gainfully employed in approximately October 1985 when he worked at Consolidated Freightways as a dock worker. (Id. at 23.) At that time, he performed manual labor for Consolidated Freightways. (Id. at 23.) In November 1985, Aitken had foot surgery to correct hammer toes. (Id. at 23.) He could not return to his dock worker position after the surgery. (Id. at 24.)

  Since his foot surgery, Plaintiff has worked approximately five to ten days as a substitute teacher in both high school and grade school. (Id. at 32.) The last time he worked as a substitute teacher was in 1993. (Id. at 32.) He is registered to substitute teach in both LaSalle and Vero Counties, and is listed to substitute through 2006. (Id. at 32-33.) He also has applied for jobs at the Illinois Historical Society, Ace Hardware, Wal-Mart, and Mendards, but has not been hired for numerous reasons. (Id. at 25, 26 & 45.)

  Aitken is the owner, president, vice-president and treasurer of Aitken, Incorporated, a bar and restaurant in Justice, Illinois. (Id. at 34-35 & 132.) During his testimony, Aitken claimed, however, that he did not work for the Aitken, Incorporated. He testified that he washed dishes at Aitken one day, but "got tired of being slapped around" by his partner so he did not go back. (Id. at 36.)

  During his testimony before the ALJ, Plaintiff told the ALJ that he has used a cane since 1985 when he had foot surgery since his feet hurt. He said, however, that he did not use the cane all the time because the pain "comes and goes." (Id. at 41.) He generally uses the cane when he is on the floor because it is difficult for him to get up from the floor without it. (Id. at 41.)

  Aitken testified that he used prescription pain killers in connection with his foot and knee surgeries. Those were the primary two periods when he took such medication. (Id. at 39.) Otherwise, Aitken just took aspirin for his pain. (Id.)

  Aitken lives by himself. (Id. at 44.) He drives, vacuums his home once a week, cooks, mows his law during the summer, takes out his trash, and washes his dishes. (Id. at 44-45.) He also reads a lot. (Id. at 44.)

 II. Medical Evidence Before Plaintiff's Date Last Insured

  On November 4, 1985, Dr. Michael Wessels, a podiatrist, performed surgery on Plaintiff to correct a hammer toe deformity on his third and fourth digits bilaterally. (Id. at ...


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