United States District Court, W.D. Missouri, Southern Division
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
E. LARSEN United States Magistrate Judge.
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.
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.
STANDARD FOR JUDICIAL REVIEW
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
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).
BURDEN OF PROOF AND SEQUENTIAL EVALUATION
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).
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:
the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
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.
the impairment meet or equal a listed impairment in Appendix
Yes = disabled.
No = go to next step.
the impairment prevent the claimant from doing past relevant
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
the impairment prevent the claimant from doing any other
Yes = disabled.
No = not disabled.
record consists of the testimony of plaintiff and vocational
expert Natalie Maurin, in addition to documentary evidence
admitted at the hearing.
record contains the following administrative reports:
record shows that plaintiff earned the following income from
1983 through 2013:
(Tr. at 290-299).
Report - Field Office
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).
Report - Third Party
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
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.
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.”
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).
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.
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.
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).
was fired from a job for “fighting and more?”
(Tr. at 350). He uses a cane “most every day”
(Tr. at 350).
SUMMARY OF TESTIMONY
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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.
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).
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).
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).
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).
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 and he has a problem if things seem
disorganized, for example a messy desk (Tr. at 79-80).
Vocational expert testimony.
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
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).
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