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Bulone v. Colvin

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

September 30, 2016

DOMINIC BULONE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          ROBERT E. LARSEN United States Magistrate Judge.

         Plaintiff Dominic Bulone seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Title II of the Social Security Act (“the Act”). I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.

         I. BACKGROUND

         On July 1, 2013, plaintiff applied for disability benefits alleging that he had been disabled since May 10, 2012. Plaintiff's disability stems from post traumatic stress disorder (“PTSD”), depression, anxiety, chronic fatigue, lung infections, rashes, irritable bowel and joint pain. Plaintiff's application was denied on August 21, 2013. On May 9, 2014, a hearing was held before an Administrative Law Judge. On May 23, 2014, the ALJ found that plaintiff was not under a “disability” as defined in the Act. On July 31, 2014, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.

         II. STANDARD FOR JUDICIAL REVIEW

         Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a “final decision” of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner's decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). “The Court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99 (1981)).

         Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. “[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision.” Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).

         III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS

         An individual claiming disability benefits has the burden of proving he is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel, 118 F.Supp.2d 974 (W.D. Mo. 2000).

         The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:

         1. Is the claimant performing substantial gainful activity?

Yes = not disabled.
No = go to next step.

         2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?

No = not disabled.
Yes = go to next step.

         3. Does the impairment meet or equal a listed impairment in Appendix 1?

Yes = disabled.
No = go to next step.

         4. Does the impairment prevent the claimant from doing past relevant work?

No = not disabled.
Yes = go to next step where burden shifts to Commissioner.

         5. Does the impairment prevent the claimant from doing any other work?

Yes = disabled.
No = not disabled.

         IV. THE RECORD

         The record consists of the testimony of plaintiff and vocational expert Natalie Maurin, in addition to documentary evidence admitted at the hearing.

         A. ADMINISTRATIVE REPORTS

         The record contains the following administrative reports:

         Earnings Record

         The record shows that plaintiff earned the following income from 1983 through 2013:

Year

Earnings

Year

Earnings

1983

$621.73

1999

27170.88

1984

2018.08

2000

28137.15

1985

7654.24

2001

27473.36

1986

8878.95

2002

32946.72

1987

10922.26

2003

33217.9

1988

9400.24

2004

37164.85

1989

18595.09

2005

27718.97

1990

17742.35

2006

33747.25

1991

22425.56

2007

31259.55

1992

27418.56

2007

31259.55

1993

21189.81

2009

28979.79

1994

12350.62

2010

29475.3

1995

13078.22

2011

4901.38

1996

19, 221.61

2012

18131.51

1997

23977.59

2013

0

1998

$25, 715.61

2014

0

(Tr. at 290-299).

         Disability Report - Field Office

         On July 8, 2013, Interviewer M. James of Disability Determinations met face to face with plaintiff regarding his application for disability benefits (Tr. at 313-315). The interviewer observed that plaintiff had no difficulty with reading, understanding, coherency, concentrating, answering, sitting, standing, walking, using his hands or writing (Tr. at 314). The interviewer added the following observation: “Claimant was cleanly dressed and very muscular with a forceful and demanding attitude in his questioning as to why he was not considered a wounded warrior in order to get approved for disability benefits with SSA. No physical or mental limitations were observed.” (Tr. at 315).

         Function Report - Third Party

         On July 22, 2013, plaintiff's wife, Stephanie Bulone, completed a Function Report - Third Party (Tr. at 333-340). Mrs. Bulone is with plaintiff constantly. During the day plaintiff naps frequently and watches television or uses the computer. Plaintiff has “horrible insomnia, nightmares, yells in his sleep.” He is not always compliant with wearing his CPAP.[1] Plaintiff has to be reminded to shave and brush his teeth, his grooming is poor. He is able to drive, and he can go out alone except he does not like being around people. He shops in stores and by mail.

         Plaintiff's condition affects his ability to lift, climb stairs, squat, kneel, bend, understand, follow instructions, hear, see, complete tasks, get along with others, remember and concentrate. His condition does not affect his ability to sit, stand, reach, walk, or use his hands (Tr. at 337). When asked how long plaintiff can pay attention, Mrs. Bulone wrote, “sometimes less than a minute.”

         Plaintiff was fired from his job at the prison due to violence (Tr. at 339). He does not handle changes in routine well because he is very controlling. Plaintiff has been using a cane for the past six years, it was prescribed by a doctor, and he uses it daily (Tr. at 339).

         Function Report

         In an undated Function Report, plaintiff described his typical day (Tr. at 344-351). He gets up around 9:00 a.m., has coffee and breakfast while he watches the news, feeds his dogs and cats, walks the dogs for 50 minutes, takes a shower, watches television or plays on the computer, takes a 1 to 2 hour nap, has lunch, goes outside for a while, watches television, has dinner, and then watches television until he goes to bed around 10:00 p.m.

         Plaintiff prepares his own meals, and it takes him about 40 minutes. He does a little bit of laundry and he mows. It usually takes him a couple of hours to do these things. He is able to drive and can go out alone. Plaintiff reads and watches television every day. In 2005 he began to distrust people.

         Plaintiff's condition affects his ability to lift, squat, bend, stand, kneel, hear, climb stairs, remember, complete tasks, concentrate, understand, follow instructions and get along with others. His condition does not affect his ability to reach, walk, sit, or use his hands (Tr. at 349).

         Plaintiff was fired from a job for “fighting and more?” (Tr. at 350). He uses a cane “most every day” (Tr. at 350).

         B. SUMMARY OF TESTIMONY

         During the May 9, 2014, hearing, plaintiff testified; and Natalie Maurin, a vocational expert, testified at the request of the ALJ. Before the testimony, the ALJ made the following comment: “And what are the severe impairments that we're looking at? Because I'm -- I noted as Mr. Bulone came in that he was kind of bent over and using a cane in the right hand, and I don't see -- I'm not sure what that's from.” (Tr. at 37). The subsequent discussion between the ALJ, plaintiff and his attorney concluded with the statement that plaintiff does have a back impairment but was walking with a cane because of his knees -- Dr. Jones told him to use a cane (Tr. at 37-39).

         1. Plaintiff's testimony.

         At the time of the hearing, plaintiff was 49 years of age (Tr. at 41). He is married and has two children living at home (Tr. at 41). He lives on 1 3/4 acres of land (Tr. at 41). Plaintiff is 5' 9” tall and weighs about 230 pounds (Tr. at 41).

         Plaintiff has a high school education and the equivalent of an associate's degree in criminal justice (Tr. at 41). While he was working, he was in college part time, trying to get a degree so he could move up the ladder at work (Tr. at 68). When he stopped taking classes, it was because he lost interest (Tr. at 70). From 1996 to 2010, he worked with the Department of Corrections (“DOC”); from 1984 through 2006 he was in the Army and the National Guard (Tr. at 42). He was a corrections officer with the DOC and then was promoted to supervisor (Tr. at 42). He was in charge of a lot of violent offenders, and he was in charge of staff, security and others (Tr. at 42). He was promoted to supervisor in 2000 (Tr. at 42).

         Plaintiff was in the Army from 1985 to the end of 1986, then he joined the Reserves for two years (Tr. at 42). After that he joined the National Guard (Tr. at 42-43). He retired as a staff sergeant (Tr. at 43). He trained in bridge building, demolitions, weaponry, etc. (Tr. at 43). He was required to carry large, heavy metal equipment (Tr. at 43).

         When plaintiff was in Iraq, a Humvee in front of him was blown up, and soldiers were killed (Tr. at 45). Plaintiff felt terrible, he thought it should have been him and not them (Tr. at 45). Plaintiff got into a fistfight with one of his commanding officers (Tr. at 45). Plaintiff thought the officer was abusing his power, and in the heat of the moment they got into a fight (Tr. at 45-46). Another time plaintiff was barking orders at a soldier who did not listen, so plaintiff “smacked him around” (Tr. at 46). The military told plaintiff he needed to retire, and they gave him an honorable discharge with a 60% disability, which was later raised (Tr. at 46).

         Plaintiff started his career with DOC at the Missouri State Penitentiary in Jefferson City (Tr. at 47). They shut down in 2004 and moved to a new facility called Jefferson City Correctional Center (Tr. at 47). Plaintiff was in Iraq when this occurred (Tr. at 47). The new facility is referred to as “The New Walls” and is a maximum security prison (Tr. at 48). When plaintiff was working there, he had problems “going off” on supervisors and blowing up on staff (Tr. at 48). He was having a lot of anger issues (Tr. at 48).

         On one occasion when he was a supervisor, plaintiff ordered his staff to watch the door while he physically “roughed up” some inmates (Tr. at 48). Plaintiff “went off and started hitting him” (Tr. at 48-49). He got in trouble for doing that, but the prison worked with him and helped him get a diagnosis of PTSD and he left “on good terms” (Tr. at 49). In the military, they called it anxiety and depression, but the state referred to it as PTSD (Tr. at 49). Plaintiff took medical retirement from the DOC (Tr. at 49). Plaintiff's military experience and his job at the prison were both high stress positions (Tr. at 49-50).

         Plaintiff has experienced other stress in his life too (Tr. at 50). His daughter had an appendicitis and also had cancer, and all of that was removed (Tr. at 50). His mother had a stroke, and his wife was in a severe car accident (Tr. at 50). Just recently, plaintiff's brother committed suicide (Tr. at 50). He was paranoid schizophrenic and plaintiff blames himself for that (Tr. at 50). Plaintiff's father was killed in a car crash, and plaintiff blames himself for that too (Tr. at 50).

         Plaintiff slapped his brother around in the past (Tr. at 55). He has hit the walls with his fist a few times but he has never hit his wife and children (Tr. at 55). Plaintiff is sometimes depressed, sometimes “ticked off” and irritable (Tr. at 55). He has more bad days than good (Tr. at 55).

         In 2006 when he got back from Iraq, he started having other problems (Tr. at 43). He felt funny, could not catch his breath, “and a lot of things” (Tr. at 43). He went to the VA for treatment, and “it was like a slow process of different things accumulating.” (Tr. at 43-44). Plaintiff was diagnosed with some kind of granulomas in his lungs -- he was scared he was going to die (Tr. at 44). Even though plaintiff never smoked a day in his life, his doctor said his were the second worst set of lungs she had ever seen on a patient his age (Tr. at 44). Plaintiff cannot walk very far without stopping to rest (Tr. at 44). At night he has to use a CPAP (Tr. at 44). “[W]hen it falls off, I, I don't even put it on, because it wraps around my neck and stuff, and when I have these nightmares, it just, it just, it just goes nuts.” (Tr. at 44).

         Plaintiff believes he was exposed to chemicals when he was in Iraq (Tr. at 50). He has granulomas in his lungs, and he has some growths in his nose (Tr. at 51). He had those surgically removed (Tr. at 51). Since his return from Iraq he has had surgeries on both knees and a shoulder (Tr. at 51). He had surgery on both knees before he went to Iraq too (Tr. at 51). Dr. Jones told plaintiff he needs knee replacements in both knees (Tr. at 51-52). The surgery on his shoulder was reconstructive (Tr. at 52). When he was in Iraq he was holding some bridge parts and he felt a pop and a burning sensation (Tr. at 52). He went to the TMC and got a couple of shots and x-rays but they could not find anything wrong (Tr. at 52). After the shots, it felt good for a while, but then he was getting weaker and weaker and just kept getting the shots and pills (Tr. at 52).

         Plaintiff has knee pain every day in both knees but the left is worse than the right (Tr. at 60). He rates his left knee pain anywhere from a 5 to an 8 on a scale of 1 to 10 (Tr. at 60). His right knee pain is a 5 (Tr. at 60). His left shoulder pain is between a 5 and an 8 (Tr. at 60). His elbow pain is rated a 4 or 5 (Tr. at 62). He has stomach pain a couple times a week that doubles him over, and he rated that a 5 or a 6 (Tr. at 60). When he has heart palpitations, his chest pain is at least an 8 (Tr. at 60). Whenever he experiences a stressor, he has that chest pain (Tr. at 61).

         Plaintiff also suffers from chronic fatigue (Tr. at 53). He also has irritable bowel syndrome, and sometimes he has to use a pad because of that (Tr. at 53). This problem has gotten worse over the past 12 months (Tr. at 53). He was asked when he was diagnosed with chronic fatigue, and he did not know (Tr. at 53). Plaintiff sometimes loses his memory. He is OK with long-term memory, but he sometimes cannot remember anything he did a couple days ago (Tr. at 67-68). Plaintiff's heart will start “fluttering and beating, ” and because of this Dr. Jones diagnosed panic attacks (Tr. at 59). Any time plaintiff gets excited, irritable, or anxious, he has a panic attack (Tr. at 59). Plaintiff now takes medicine for that (Tr. at 59).

         Plaintiff does not trust strangers, and he does not like going to stores (Tr. at 69). He never goes grocery shopping, but he sometimes goes to Wal-Mart only when he has to, i.e., “if the wife makes me” (Tr. at 69). His therapist will tell his wife to take plaintiff out, but he does not like to go out (Tr. at 69). He goes to Wal-Mart about once a month (Tr. at 69).

         Plaintiff has problems with his elbows and all of his joints hurt a lot (Tr. at 54). The main problems with his joints are his shoulders, his elbows and his knees (Tr. at 54). He has had injections in all of his joints (Tr. at 54). Plaintiff also has carpal tunnel syndrome -- he was diagnosed by Dr. Jones about 12 or 13 months ago (Tr. at 54). Plaintiff has headaches, which he referred to as migraines, two to three times a week (Tr. at 54, 61). His headache pain is always an 8 or higher (Tr. at 62). He has a new medication called Naproxen (a non-steroidal anti-inflammatory) which helps relieve his headache symptoms (Tr. at 54-55). Sometimes plaintiff has trouble seeing and focusing (Tr. at 55).

         In a typical day, plaintiff will get up around 8:00 and have coffee and breakfast (Tr. at 56). He and his wife sit and talk for a bit (Tr. at 56). Plaintiff will go feed and pet his dog then come back in the house because that makes him very tired (Tr. at 56). Plaintiff enjoys reading books but after 30 minutes he cannot concentrate (Tr. at 56). He takes a nap and then gets up to have lunch (Tr. at 56). He and his wife visit for a bit and he relaxes on the porch, then he goes inside to watch television until it is time for bed, around 9:00 or 10:00 (Tr. at 56, 57).

         Plaintiff has to take several medications to sleep through the night (Tr. at 61). He takes something to fade out the nightmares, but when that wears off he can remember bits and pieces of his nightmare and he wakes up either sweaty or with a racing heart (Tr. at 61). Plaintiff has nightmares at least every other day (Tr. at 61).

         Plaintiff usually naps for about two hours (Tr. at 57). He takes a nap whenever he feels tired (Tr. at 57). Plaintiff likes to read any type of history -- military history, Founding Fathers type material (Tr. at 57). He enjoys playing card games with his family (Tr. at 57). He used to love hunting but he cannot tolerate that anymore (Tr. at 58). He is getting rid of most of his guns now (Tr. at 58). He last went hunting in the fall of 2010, he went deer hunting (Tr. at 58). Plaintiff cannot hunt anymore because the noise of the guns causes too many memories and flashbacks (Tr. at 58). Also, he can no longer walk a long way in the woods because he gets too tired (Tr. at 58-59).

         If he is having a good day, he can throw in some laundry or load the dishwasher (Tr. at 62). He does not have many good days (Tr. at 62). Plaintiff's wife does the cooking (Tr. at 62). She only lets him wash his own clothes, not hers (Tr. at 62). He does not carry a basket; when he does laundry, he will throw in a shirt and a pair of pants and that's it (Tr. at 63). Plaintiff needs no help with personal care (Tr. at 63). Plaintiff's kids help with the chores at home (Tr. at 63).

         Plaintiff can stand for about 20 minutes as long as he is leaning on something (Tr. at 63). He can walk about 100 feet and then he has to rest (Tr. at 63-64). Whenever his knees flare up, i.e, his knee pain is a 5 or higher, he uses a cane (Tr. at 64). Plaintiff went from crutches after surgery to a cane per Dr. Jones (Tr. at 64). Plaintiff cannot climb ladders (Tr. at 64). He cannot squat because of his knees (Tr. at 66). He can get down on his knees, but it will take him a while and it is painful (Tr. at 67). He can bend at the waist but it hurts a little bit in his low back, and he has to be careful because of his knees (Tr. at 64-65). He can reach forward OK with his left hand, but when he leans toward the back reaching is problematic (Tr. at 65). He has trouble gripping heavy things; he has to grip a gallon of milk with his right hand instead of his left (Tr. at 65). Plaintiff cannot lift anything heavier than a gallon of milk even with his right hand (Tr. at 66).

         Plaintiff drives locally, not long distances (Tr. at 66). Although he needs glasses, he was in a hurry on the day of the hearing and forgot them (Tr. at 67).

         Plaintiff was asked why he cannot work now (Tr. at 68). He said, “I'm totally mentally and physically chronically ill.” (Tr. at 68). He said he developed a phobia about being around people when he was in class, and he started to have attendance problems at work when he came back from Iraq (Tr. at 70-71). He never had attendance problems before going to Iraq (Tr. at 71). He also started coming in late sometimes (Tr. at 71).

         After the vocational expert testified, plaintiff testified again (Tr. at 78-79). He may be able to perform assembly work if he did not have carpal tunnel syndrom (Tr. at 79). His left hand is really bad; his right had is OK at times, but plaintiff has issues with both hands (Tr. at 79). Also, he would get frustrated and “just start punching and doing dumb things again.” (Tr. at 79). Plaintiff is very particular about his surroundings[2] and he has a problem if things seem disorganized, for example a messy desk (Tr. at 79-80).

         2. Vocational expert testimony.

         Vocational expert Natalie Maurin testified at the request of the Administrative Law Judge. Plaintiff's past relevant work includes corrections officer, DOT 372.667-018, medium as generally performed, heavy as performed by plaintiff, SVP of 4;[3]working corrections supervisor, DOT 372.137-010, light as generally performed, heavy as performed by plaintiff, SVP of 6; and engineering supervisor, DOT 869.664-014, heavy, with an SVP of 4 (Tr at 72-74).

         The first hypothetical involved a person who could lift up to 20 pounds occasionally and 10 pounds frequently; stand or walk six hours per day; sit six hours per day; could not climb ropes, ladders or scaffolds; could occasionally climb ramps or stairs, kneel, crouch, or crawl; should avoid concentrated exposure to pulmonary irritants, temperature extremes, vibration and work hazards. The person is able to understand, remember and carry out simple instructions consistent with ...


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