United States District Court, N.D. Illinois
April 9, 2004.
JAMES F. AITKEN, Plaintiff,
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.
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
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 180.) Plaintiff tolerated the
procedure well. (Id.)
From May 5 through June 20, 1986, Plaintiff underwent a medical
evaluation at the Mayo Clinic. (Id. at 156-59.) Dr. James T.C. Li
conducted the examination and noted the "physical examination was within
normal limits." (Id. at 156.) The Mayo Clinic diagnosed Plaintiff with
paranoid disorder, honeybee sting sensitivity, and back pain. (Id.)
While at the Mayo Clinic, Dr. Peterson of the Orthopedic Department,
evaluated Plaintiff for back pain. Dr. Peterson indicated that Plaintiffs
back pain "was secondary to mild degenerative arthritis." (Id.) Dr. Auger
of the Neurology Department further evaluated Plaintiff for the back pain
and noted only mild limitation of the range of motion of Plaintiff's
cervical spine. "No neurologic disease was noted." (Id.) Dr. R.R. Swatell
of the Physical Medicine and Rehabilitation Department also evaluated
Plaintiff and outlined a comprehensive physical therapy program for
Plaintiff. (Id.) There is no evidence that Plaintiff participated in such
Plaintiff Aitken testified that he had knee surgery approximately three
years before his December 2002 hearing before the ALJ. (Id. at 38.) There
is no record of such surgery. (Id. at 12.)
In addition, Dr. J.W. Richardson of the Psychiatry Department at the
Mayo Clinic saw Mr. Aitken. Dr. Richardson stated that he believed Mr.
Aitken had a paranoid disorder, probably paranoid schizophrenia. (Id. at 156.) Although Dr. Richardson recommended
that Aitken seek psychiatric help, Aitken refused. (Id. at 156.)
On August 20, 1986, Plaintiff sought the care of Dr. Donald W. Piller,
a chiropractor, to treat his back pain. (Id. at 164-66.) Dr. Piller noted
that Aikten's general health was good, but he complained of chronic lower
back pain. (Id. at 164.) Atiken said that he started seeing Dr. Piller in
approximately 1983 because Consolidated Freight sent Aitken to him. (Id.
at 43.) At the time of the hearing, Aitken testified that Dr. Piller
still treats him for his back pain. (Id. at 43.) He further testified
that he sees Dr. Piller for treatment approximately two times a year.
(Id. at 27.) Dr. Piller noted that Aitken was not taking pain medication
at the time, but had taken prescription pain pills for his back pain from
"time to time." (Id.) Dr. Pillner's tests indicated that the range of
motion in Aitken's cervical spine was somewhat limited, but the range of
motion in his dorso-lumbar spine was normal. (Id. at 165.)
III. Medical Evidence After Plaintiff's Date Last Insured
On November 14, 2002, Aitken saw Dr. Michael Wessels of the KSB Medical
Group in Dixon, Illinois. (Id. at 182.) Dr. Wessels noted that Plaintiff
"has full range of motion of all major foot joints without pain. Muscle
strength and tone are normal. There is some slight residual contracture
of the lesser digits, but they appear within normal limits." (Id. at
183.) He further noted that Aitken's deep tendon reflexes were
"diminished bilaterally," and his vibratory sensation was diminished from
the mid tarsus distally. (Id.) Sharp dull discrimination was diminished
from the ankle distally. (Id.) Aitken could not feel the monofilament
wire from the mid tarsus area distally, thus his Sims-Weinstein
monofilament test was abnormal. (Id.).
Dr. Wessels opined that: I don't feel that his foot surgery in the past is
contributing to his symptoms now since he relates
no history of diabetes and/or alcoholism. I think
his peripheral neuropathy is probably related to
previous lower back injury. He probably should be
evaluated by a neurologist.
I do feel, however, that with this peripheral
neuropathy, he certainly should be eligible for
social security benefits. That is in the context
of his other conditions like lower back injury and
previous orthopedic conditions of his knees.
(Id. at 183.)
III. The ALJ's Rulings
On April 22, 2003, the ALJ issued his opinion, concluding that Aitken
was not disabled at any time through his date last insured, March 31,
1991. The ALJ found that Aitken had retained the residual functional
capacity to perform light exertional work through March 31, 1991. He
further found, after evaluating Aitken's credibility, that Aitken's
subjective complaints and allegations concerning the severity of his
impairments were not reasonably consistent with the objective medical and
other evidence of the record. Although Aitken was unable to perform his
past relevant work as a construction laborer or dock worker, the ALJ
concluded that his impairments did not preclude him from performing past
relevant work as a substitute teacher or owner/officer of a bar or
I. Standard of Review
The Court's review of the Commissioner's decision denying Aitken's DIB
is governed by 42 U.S.C. § 405(g). Section 405(g) provides that the
findings of the ALJ are conclusive if supported by substantial evidence.
42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (quotations omitted).
"Substantial evidence may be less than the weight of the evidence . . .
and more than a scintilla." Scheck v. Barnhart, 357 F.3d 697, 699 (7th
Cir. 2004) (citations and quotations omitted). Even if there is adequate
evidence in the record to support the decision, the findings will not be
upheld if "the reasons given by the trier of fact do not build an accurate
and logical bridge between the evidence and the result." Sarchet v.
Chater, 78 F.3d 305, 307 (7th Cir. 1996).
The Court may not decide facts anew, reweigh the evidence, resolve
conflicts in evidence, or decide questions of credibility. Estok v.
Apfel, 152 F.3d 636, 638 (7th Cir. 1998). Instead, the Court's review is
limited to determining whether the ALJ applied the correct legal
standards in reaching a decision and whether there is substantial
evidence in the record to support the findings. Scivally v. Sullivan,
966 F.2d 1070, 1075 (7th Cir. 1992).
II. Disability Standard
A person is disabled for purposes of DIB if there is an "inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
In order to be disabled, an individual must establish that he cannot
perform his prior work given his physical or mental limitations, and he
further cannot participate in any gainful employment that exists in the
national economy considering his age, education, and work experience.
42 U.S.C. § 423(d)(2)(A).
In order to determine if a claimant is disabled pursuant to Section
423(d)(1)(A), the Commissioner has created a five-step, sequential
analysis for evaluating claims. 20 C.F.R. § 404.1520. Under the five step analysis, the claimant must
show that: (1) he is not presently employed in a substantial gainful
activity; (2) his impairment is severe; (3) his impairment meets or is
equal to an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1;
(4) he has insufficient residual functioning capacity ("RFC") to perform
his past relevant work; and (5) given his age, education, and past
relevant work experience, he is unable to perform any other work within
the national and local economy. 20 C.F.R. § 404.1520(a)(4)(i)-(v). See
Scheck, 357 F.3d at 700; 20 C.F.R. § 416.920. A person's RFC is what he
can do despite any physical and mental limitations.
20 C.F.R. § 404.1545(a)(1).
If the ALJ makes a conclusive finding at any step in this sequential
analysis "that the claimant either is or is not disabled, then she need
not progress to the next step." Young v. Barnhart, ___ F.3d ___, 2004 WL
692167, *4 (7th Cir. Apr. 2, 2004); 20 C.F.R. § 404.1520(a)(4). The
burden of proof remains on the claimant through step four of the
analysis. At step five, the burden shifts to the Commissioner. Clifford
v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citing Knight v. Chater,
55 F.3d 309, 313 (7th Cir. 1995).
In order to be entitled to DIB, a claimant must demonstrate that he was
disabled on or before his date last insured. 42 U.S.C. § 423(a)(A),
42 U.S.C. § 423(c)(1); 20 C.F.R. § 404.131. See Stevenson v. Chater,
105 F.3d 1151, 1154 (7th Cir. 1997). Here, it is undisputed that Aitken's
date last insured was March 31, 1991. (R. 8-1, Transcript of Record of
Proceedings, at 11.)
Plaintiff claims that the ALJ did not have substantial evidence to
support his decision. The Court disagrees.
I. The Five Step Analysis The ALJ correctly applied the Commissioner's five step sequential
analysis in reaching his conclusion in this case. In doing so, the ALJ
assessed Aitken's credibility and the credibility of his subjective
complaints. (Id. at 12.) The ALJ's credibility determinations are
"entitled to special deference." Scheck, 357 F.3d at 703 (citations
omitted). Indeed, the Court will not disturb an ALJ's credibility
determination unless "it is patently wrong" in light of the entire
record. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000); Diaz v.
Chater, 55 F.3d 300, 308 (7th Cir. 1995).
It is undisputed that Aitken satisfies step one. The record supports
that he did not engage in substantial gainful activity from November 23,
1985 when he had his foot surgery through March 31, 1991, his date last
With respect to step two, the ALJ found that Aitken had no medically
determinable psychological impairment. Aitken does not appear to contest
this finding. The record also demonstrates while that Dr. Richardson at
the Mayo clinic suggested that Aitken suffered from a paranoid disorder
in 1986, Aitken refused treatment. See Griffith v. Callahan, 138 F.3d 1150,
1155 (7th Cir. 1998) (failure to initiate treatment with a mental health
specialist was factor supporting that mental impairments not disabling).
Furthermore, the record is devoid of any other evidence that Plaintiff
suffered from a psychological impairment. Plaintiff does not even make
such an argument.
The ALJ found objective medical evidence of severe impairment
consisting of the residual effects of a bank injury and bilateral foot
surgery. (R. 8-1, Transcript of Record of Proceedings at 11.) Therefore,
the ALJ proceeded to step three of the analysis and concluded that
Aitken's impairments did not meet or equal a Listing of Impairments
("Listing") found in Appendix 1, Subpart P, Regulations No. 4. (Id. at 11.) The ALJ reasoned
that the record did not contain any evidence that Plaintiff was unable to
ambulate effectively for at least twelve consecutive months or any
evidence that Plaintiff's nerve root or spinal cord were compromised.
Nothing in the record suggests otherwise.
Regarding step four, the ALJ found that Aitken retained the residual
functional capacity to perform light exertional work through March 31,
1991, his date last insured. The ALJ reached this conclusion based on the
objective medical evidence of record as well as his assessment of the
credibility of Aitken's complaints. There is substantial evidence to
support this conclusion.
A. Absence of Objective Medical Evidence
There is an absence of objective medical evidence in the record to
support Atiken's claim that he was disabled and has not been able to work
as of his date late insured. After his foot surgery, a physical
examination in May and June of 1986 was within normal limits. (Id. at
156-57.) Although the 1986 report showed that Aitken had mild limitation
of motion in the cervical spine, he had no neurologic deficits. X-rays of
Plaintiff s thoracic spine were normal. The Mayo Clinic also suggested
that Aitken's back pan was due to degenerative arthritis which was only
mild in nature.
Plaintiff testified that he saw a chiropractor, but the records reflect
that he saw Dr. Piller, a chiropractor, from July 1983 to April 1984, and
then again in August 1986. The next record of chiropractic treatment is
not until October 2000. Even Aitken testified that he only sees Dr.
Piller approximately two times a year.
Plaintiff did present one letter opinion from Dr. Wessels opining that
Plaintiff had "peripheral neuropathy" and certainly should be eligible
for social security benefits." (Id. at 182.) That letter, however, was rendered approximately eleven years after
Plaintiff's date of last insured. Dr. Wessels did not opine that
Plaintiff was disabled as of his date of last insured. It is also
inconsistent with the 1986 examination conducted by the Mayo Clinic
concluding that Plaintiff's neurological examination was normal.
Accordingly, the ALJ justifiably did not conclude that Dr. Wessels'
opinion supported a disability determination as of March 31, 1991. See
Powers, 207 at 435 (ALJ "within his discretion to reject [medical]
opinion as conclusory and unsupported by the record.").
Furthermore, the Wessels' letter supports the ALJ's determination that
Aitken was not disabled from his 1985 foot surgery. Even Dr. Wessels
opined that he did not "feel that his foot surgery in the past is
contributing to his symptoms now."
B. Plaintiff's Credibility
As the Seventh Circuit recently noted, "[t]he absence of an objective
medical basis which supports the degree of severity of subjective
complaints alleged is just one factor to be considered in evaluating the
credibility of the testimony and complaints." Scheck, 357 F.3d at 703
(citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). The ALJ
also must consider the following: "(1) the claimant's daily activity; (2)
the duration, frequency, and intensity of pain; (3) the precipitating and
aggravating factors; (4) dosage, effectiveness, and side effects of
medication; and (5) functional restrictions." Id. Here, the ALJ
reasonably considered these other factors and rejected Plaintiff's claim
The ALJ noted that Aitken drives, attends church, cooks, mows his law,
does laundry and eats in restaurants. Aitken also testified that he could
sit behind a desk to teach. (R. 8-1, Transcript of Record of Proceedings,
at 34.) The ALJ further noted that Aitken had applied for jobs, including one as a substitute teacher. When the ALJ asked Aitken if
he could teach if he received a call to do so, Aitken responded "well, I
would try, yes." (Id. at 34.) Aitken told the ALJ, "I use to teach
Spanish, do you want me to teach Spanish again, find me a job and I'll
teach." (Id. at 47.)
Aitken also is the owner, president, vice-president and treasurer of
Aitken, Incorporated, a bar and restaurant in Justice, Illinois. (Id. at
34-35, 132.) Aitken claimed, however, that he did not work for the
company. 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)
As to Aitken's statements regarding his pain, he testified that he has
pain that comes and goes. (Id. at 41.) Furthermore, from 1985 to 2002,
Aitken admitted that he did not take painkillers continuously or even
intermittently. (Id. at 38-39.) He only took them when he had surgery in
1985 and when he had his subsequent knee surgery. (Id. at 39.) He did
take aspirin at times. (Id.) Viewing the evidence in its entirety, the
ALJ's credibility determination was not "patently wrong." Moreover, given
that the ALJ properly considered the Polaski factors outlined above,
deference to his credibility determination is "especially proper."
Schenck, 357 F.3d at 703.
The Seventh Circuit's recent opinion in Carradine v. Barnhart,
360 F.3d 751 (7th Cir. 2004) does not provide otherwise. In Carradine,
the Seventh Circuit reversed the ALJ's determination of no disability,
finding that the ALJ's credibility determination regarding the claimant's
subjective pain was based on "serious errors in reasoning." Such errors
in reasoning do not exist in this case.
C. Performing Other Jobs Where a claimant cannot perform past relevant work, the burden of proof
shifts to the Commissioner to identify other jobs that the claimant can
perform under step five of the analysis. 20 C.F.R. § 404.1520(f). Here,
the Commissioner properly referred to the Medical Vocational guidelines
(the "grid") to identify other jobs involving light exertional work that
Plaintiff could perform through March 31, 1999 in the national economy,
See Heckler v. Campbell, 461 U.S. 458, 462-65 (1983). The Commissioner
also noted that Plaintiff could perform past relevant work such as
teaching and working at a bar. CONCLUSION
There is substantial evidence in the record to support the ALJ's
conclusion that Aitken was not disabled because he could perform a
limited range of light work as of his date last insured. Accordingly, the
Commission's motion for summary judgment is granted and Plaintiff's
motion for summary judgment is denied.