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Donald Keith Whitlock v. Commissioner of Social Security

August 15, 2011


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

E-FILED Tuesday, 16 August, 2011 02:01:27 PM Clerk, U.S. District Court, ILCD


This matter is before the Court on pro se Plaintiff's Motion for Summary Judgment (Doc. 22), Defendant's Motion for Summary Affirmance (Doc. 25) and Memorandum in Support (Doc. 26), and Plaintiff's Motion for Affirmance of Movant's Reply ("Plaintiff's Response") (Doc. 28).*fn1 For the following reasons, Defendant's Motion for Summary Affirmance is GRANTED and Plaintiff's Motion for Summary Judgment is DENIED.


Plaintiff Donald Whitlock applied for disability insurance benefits and supplemental security income under the Social Security Act ("the Act"), alleging that he became disabled on June 15, 2006 as a result of arterial vascular malformation and the removal of a kidney. (Tr. at 115-125; 148). Plaintiff's claim was denied at the initial and reconsideration levels, prompting him to request a hearing before an Administrative Law Judge ("ALJ"). (Doc. 26 at 1). This hearing took place on March 18, 2009. (Tr. at 20). Plaintiff, who was represented by an attorney, appeared and testified at this hearing, as did a Vocational Expert, Dennis Gustafson. (Tr. at 20-65).

Following the hearing, the ALJ rendered a decision denying Plaintiff's application. (Tr. at 11-19). The ALJ found that Plaintiff's impairments do not prevent him from substantial gainful activity, and that he is not disabled as defined in the Act because he remains capable of performing his past relevant work. (Tr. at 11-19). Following the ALJ's decision, Plaintiff filed a request for review with the Appeals Council, however the Council denied review on November 10, 2009, making the ALJ's determination the final decision of the Commissioner of Social Security. (Tr. at 1-3). On January 5, 2010, Plaintiff filed the instant action in this Court (Doc. 1) seeking review of the Commissioner's decision pursuant to 42 U.S.C. § 405 (g). On November 1, 2010, Plaintiff filed his Motion for Summary Judgment (Doc. 22) and on January 18, 2011, Defendant filed its Motion for Summary Affirmance and Memorandum in Support (Docs. 25 & 26). On February 10, 2011, Plaintiff filed his Response to Defendant's Motion for Summary Affirmance (Doc. 28).

In his Motion for Summary Judgment and Response, Plaintiff appears to argue that the ALJ erred in 1) limiting his discussion to only the evidence supporting his ultimate conclusion and not considering evidence from the Idaho Department of Rehabilitation; 2) viewing the Vocational Expert's opinion prior to the March 18, 2009 hearing; 3) editing the audio hearing to comport with his decision. (Docs. 25 & 28).*fn2


Medical records indicate that Plaintiff has suffered from congenital arterial vascular malformation affecting his trunk and extremities, particularly his right leg, for his entire life. The condition causes recurrent bleeding, ulcerations, and thrombophlemitis. He was hospitalized for the condition in August 1969, December 1971, December 1973, July 1981, and May 2004. (Tr. at 300-318).

On June 15, 2006, Plaintiff went to the emergency room complaining of sharp pain to his right flank and rectal bleeding. (Tr. at 258). At the time, he was given a CT scan, which showed an abnormal appearance in his left kidney. (Tr. at 261-62). A follow-up CT scan showed that the abnormal mass was consistent with renal cell carcinoma. (Tr. at 269). On June 29, 2006, Plaintiff underwent a radical neprhectomy of his left kidney. (Tr. at 219-220). The operating surgeon, Dr. Douglas P. Norman, wrote that Plaintiff tolerated the procedure well and noted that there were no complications. (Tr. at 220). On July 12, 2006, Dr. Norman wrote that Plaintiff was "doing well" and had no further prescription at the time. (Tr. at 369).

On August 7, 2006, Dr. Martin Faber examined Plaintiff to provide a physical assessment for his application for disability benefits. (Tr. at 376). Dr. Faber noted that Plaintiff's chief complaints were 1) bleeding in his right arm, leg, and back, due to congenital arterial vascular malformation, 2) his recent radical nepherectomy, and 3) depression and alcoholism, which he claimed to be in remission.*fn3 (Tr. at 376). Dr. Faber noted no functional restrictions, and largely noted Plaintiff's normal objective findings. (Tr. at 363-366). Dr. Faber did note Plaintiff's left radical nephrectomy, providing a prognosis of "guarded" and stating that there was no metastasis after the removal of the cancerous tissue -- that is, the disease was not spreading. (Tr. at 366).

In September 2006, state agency physician Dr. Richard Bilinsky reviewed Plaintiff's medical record. He opined that Plaintiff could occasionally lift 50 pounds, could frequently lift 25 pounds, could sit, stand, or walk about 6 hours in an 8 hour day, and could perform unlimited pushing/pulling. (Tr. at 387). He noted no other restrictions, and commented that there was no evidence of malignancy after Plaintiff's kidney was removed, there were no complications from his treatment, and that he was healing well. (Tr. at 393). Dr. Sandra Bilinsky reviewed and affirmed these findings in November 2006. (Tr. at 395).

On February 6, 2007, Dr. Faber submitted a letter in support of Plaintiff's application for disability benefits. (Tr. at 398). Dr. Faber stated that he had discontinued treating Plaintiff following his surgery due to lack of funds, but went on to note that he was providing Plaintiff with pro bono medical care. (Tr. at 398).

Dr. Faber further opined that Plaintiff was unable to obtain gainful employment because of limitations from a congenital venous malformation in his right leg. (Tr. at 398). According to Dr. Faber, this condition precluded Plaintiff from sitting for any extended period of time without leg elevation due to pressure which caused pain in his leg. (Tr. at 398). Dr. Faber further noted that Plaintiff had previous hospitalizations due to ruptured veins in his leg ulcerations, and that he had recurrent phlebitis and blood clots in his right leg, as well as restless leg syndrome. (Tr. at 399). Dr. Faber concluded that "The patient has known only factory work. It is my opinion and the opinion of other physicians he has consulted that he would be unable to sustain the rigors and duration of an eight hour work day in any kind of factory setting," and therefore it was his opinion that Plaintiff would be "unable to obtain gainful employment." (Tr. at 399).

On February 29, 2009, Plaintiff's urologist, who had been treating Plaintiff for symptomatic left hydrocele-that is, an accumulation of fluids along the spermatic cord-wrote a letter stating that Plaintiff had multiple arterial venous malformations on his left side during the course of their relationship. (Tr. at 403). Dr. Levisay concluded that "While I am a urologist and cannot speak directly to his disability with regard to the AV malformation, in observing the ...

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