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Foote v. Astrue

August 25, 2010

JOHN E. FOOTE PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

ORDER & OPINION

This matter is before the Court on Plaintiff's Motion for Summary Judgment (Doc. 15) and Defendant's Motion for Summary Affirmance and Memorandum in Support (Docs. 16 & 17). For the reasons set forth below, Plaintiff's Motion for Summary Judgment (Doc. 15) is DENIED, and Defendant's Motion for Summary Affirmance (Doc. 16) is GRANTED.

BACKGROUND

I. Procedural History

In December, 1994, Plaintiff applied for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. (Tr. 137-40). His application, alleging a disability onset date of August 8, 1990, was denied. (Tr. 159). Plaintiff filed for reconsideration of the denial, which was subsequently affirmed. (Tr. 163-64, 174). Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ").

After one reassignment and several hearings,*fn1 ALJ Rickert issued a decision that Plaintiff was not disabled and the Appeals Council denied review of the decision. (Tr. 5, 14-28). Plaintiff sought judicial review of the ALJ's decision and, on January 17, 2002, United States District Judge Mihm of the Central District of Illinois upheld the decision. (Tr. 569-86).

On October 15, 2003, Plaintiff filed a new application for DIB alleging disability beginning on April 20, 1998. (Tr. 546). Because the Plaintiff's disability insured status was found to have expired as of December 31, 1997, his claim was denied both initially and upon reconsideration. (Tr. 546). Plaintiff subsequently requested a hearing, and, on February 22, 2006, amended his alleged onset date to December 1, 1997. (Tr. 546). Although the principles of res judicata would have ordinarily barred review because Plaintiff's alleged onset date fell within the period already adjudicated in his 1994 application, ALJ Thompson determined that changes in the listing of impairments since the prior adjudication required that a new medical determination be made.*fn2 (Tr. 547, 1324).

ALJ Thompson conducted hearings on November 20, 2006 and May 7, 2007. (Tr. 1321, 1368). After these hearings the ALJ determined that Plaintiff was not disabled within the terms of the Social Security Act from December 1, 1997 until December 31, 1997, and thus denied benefits.*fn3 (Tr. 547). On March 13, 2008, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner in this case. (Tr. 545). On April 15, 2008, Plaintiff filed the instant action in this Court seeking review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). (Doc. 1). On March 9, 2010, Plaintiff filed his Motion for Summary Judgment,*fn4 and on April 12, 2010, Defendant filed its Motion for Summary Affirmance. (Docs. 15 & 16).

II. Relevant Medical History*fn5

In January, 1974, Plaintiff fell onto an iron bar while at work, injuring his ribs and lower back. (Tr. 1310). Plaintiff's serious medical complaints which may or may not stem from this incident began in August, 1990, when he stepped out of a pickup truck and was unable to control his right foot. (Tr. 1298). Following an evaluation by Dr. Kalyan-Raman on August 29, 1990, Plaintiff was admitted to Methodist Medical Center of Illinois ("MMCI") for further testing. (Tr. 250-51). Upon admission to MMCI, patient complained of "a six month history of hesitancy with urine flow and the feeling of 'not finishing.'" (Tr. 222). On September 7, a Complete Urodynamic Study was performed, including the performance of a cystometrogram. (Tr. 235). The tests showed that Plaintiff had normal nerve and muscle function, but that there was a "decreased flow pattern which could be consistent with his prostatits or, perhaps bladder outlet obstruction." (Tr. 235).

After discharge from MMCI, Plaintiff continued to undergo evaluations and treatments for a variety of medical problems, including pain and weakness in his lower right leg, chronic back pain, and blurred vision, for which doctors could not find a cause.*fn6 (Tr. 298, 301, 303). In June of 1991, Plaintiff underwent further testing at the Mayo Clinic, including another Urodynamic Study involving a cystometrogram, from which the evaluating doctor concluded that there was no evidence of a neurogenic bladder and no need for further treatment of Plaintiff's bladder complaints. (Tr. 278).

In March of 1993, Plaintiff visited the Veteran's Affairs Medical Clinic ("VAMC") in Iowa City where he underwent another cystometrogram. (Tr. 367-70). Based upon the test results, Plaintiff was diagnosed with a neurogenic bladder and instructed on self-catheterization. (Tr. 366-370). In October, 1993, Plaintiff reported to the VAMC that he was performing self-catheterizations four to five times daily, without any urinary infections. (Tr. 382). In September, 1996, the VAMC at Iowa City performed an ultrasound of Plaintiff's kidneys and bladder and compared it to the examination performed in 1993. (Tr. 1071). The report indicated that 1) the Plaintiff's kidneys were normal in terms of size and shape, 2) his bladder wall was slightly thickened, and 3) the prostate gland was at the upper limits of normal size. (Tr. 1071). Plaintiff was subsequently prescribed a six-month supply of catheters by the VAMC. (Tr. 435).

In November of 1997 and 1998, Plaintiff returned to the VAMC and reported self-catheterizing six times per day without infection, and was again prescribed catheters. (Tr. 1010-11). Another ultrasound was obtained in November, 1999, at which time it was noted that there had been no significant changes since 1996. (Tr. 1070). Since that time, Plaintiff has developed other medical problems involving his lower left side and teeth, however his medical records do not indicate any significant change in terms of his bladder condition. (Tr. 897-98). As of November 2006, Plaintiff reported that he continued to self-catheterize at least five times a day. (Tr. 1347).

III. Hearing Testimony

A. Initial Hearing

On November 20, 2006, ALJ Thompson held a hearing on Plaintiff's application for benefits, at which Plaintiff was represented by an attorney, Thomas Henry. (Tr. 1321-1367). At this hearing, Plaintiff testified that he was unable to work in 1997 due to extreme weakness in his legs, a lack of stamina and the need to self-catheterize. (Tr. 1337-38). With regards to the self-catheterization, he stated that he needed to perform the procedure between five and ten times a day depending upon factors such as the weather and his fluid intake, (Tr. 1338), and that the procedure itself took less than four minutes. (Tr. 1346). ...


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