United States District Court, W.D. Missouri, Central Division
BRENT A. BRADLEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
E. LARSEN, United States Magistrate Judge
Brent Bradley 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”). Plaintiff argues
that the ALJ erred in (1) failing to give controlling weight
to plaintiff's treating physician Blake Corcoran, M.D.,
that plaintiff can walk no more than 3 hours per day with a
cane or 1 hour without, needs to elevate his legs, and will
have decreased ability to concentrate due to pain; and (2)
the hypothetical in the hearing decision is not the same as
the hypothetical to which the vocational expert testified
during the hearing. 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.
10, 2012, plaintiff applied for disability benefits alleging
that he had been disabled since August 3, 2010.
Plaintiff's disability stems from an ankle/foot injury
and injury to his tail bone. Plaintiff's application was
denied on September 6, 2012. On January 28, 2014, a hearing
was held before an Administrative Law Judge. On April 18,
2014, the ALJ found that plaintiff was not under a
“disability” as defined in the Act. On October
21, 2015, 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:
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
Yes = disabled.
No = go to next step.
4. Does the impairment prevent the claimant from doing past
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5. Does the impairment prevent the claimant from doing any
Yes = disabled. No = not disabled.
record consists of the testimony of plaintiff and vocational
expert Denise Weaver, in addition to documentary evidence
admitted at the hearing.
record contains the following administrative reports:
record shows that plaintiff earned the following income from
1996 through 2014, shown in both actual and indexed earnings:
(Tr. at 141-147, 152-153).
Function Report dated July 27, 2012, plaintiff described his
day as taking his dogs out, giving them food and water, doing
a load of laundry, doing the dishes, and watching television
until evening. He would help his wife cook dinner, clean up,
watch more television, and then go to bed (Tr. at 208).
Plaintiff did not report any difficulty with personal care
except that he indicated he no longer takes showers because
he does not want to stand (Tr. at 209). Plaintiff indicated
he would go out once or twice a day, and he would either ride
in a car or drive (Tr. at 211). He was capable of going out
alone (Tr. at 211). He shopped in stores for groceries for an
hour at a time (Tr. at 211).
condition affects his ability to lift, squat, bend, stand,
reach, walk, sit, kneel, climb stairs, complete tasks,
concentrate, and use his hands (Tr. at 213). He can walk for
30 minutes before needing to rest for an hour (Tr. at 213).
When asked how long he can pay attention, he wrote,
“depends on the activity involved” (Tr. at 213).
SUMMARY OF TESTIMONY
the January 28, 2014, hearing, plaintiff testified; and
Denise Weaver, a vocational expert, testified at the request
of the ALJ. Ms. Weaver's testimony is discussed in
section VII. below.
had an accident on August 3, 2010, while employed with UPS.
He was 25 years of age at the time. Plaintiff currently lives
in a house with six stairs going upstairs and six going down
(Tr. at 34). Upstairs are the bedrooms, living room and
kitchen, and he takes those stairs every day (Tr. at 34).
Plaintiff is married and his wife works (Tr. at 34-35). They
live with plaintiff's parents (Tr. at 44). Plaintiff
received worker's compensation benefits after his
accident in 2010 until February 2012 (Tr. at 35). He applied
for unemployment benefits but was denied because he was not
able to work (Tr. at 35).
has a driver's license but he drives very little (Tr. at
35). No doctor has limited his driving, but he does not feel
safe driving due to his pain (Tr. at 35-36). Plaintiff's
wife or his parents usually drive him (Tr. at 35-36).
completed 2 1/2 years of college (Tr. at 36). He last worked
in July 2012 -- he was a night stocker at HyVee for two weeks
(Tr. at 36). Before that he last worked at UPS on August 3,
2010 (Tr. at 36).
has both dull and sharp pain in his ankle; sometimes he feels
like he is being stabbed with a knife (Tr. at 37). It
radiates up his right leg and into his right hip and lower
back (Tr. at 37). On average plaintiff's pain is a 6 to 7
out of 10 in severity (Tr. at 37). Plaintiff is currently
taking Oxycodone (narcotic) for his pain (Tr. at 38). Pain
medication does not work all the time (Tr. at 38). Plaintiff
elevates his legs and rests (Tr. at 38). If the pain is
radiating up his leg, he cannot sit for long and needs to be
able to stand up “whenever he needs to” because
of pain (Tr. at 38). Alternating between sitting and standing
can help ease his pain; he also uses ice (Tr. at 38).
weather exacerbates plaintiff's pain, standing for longer
than 15 or 20 minutes exacerbates the pain (Tr. at 39). He
can walk for 40 yards at a time (Tr. at 39). Plaintiff had a
cane at the hearing but said it was not prescribed by a
doctor (Tr. at 39). He was using crutches when he went to see
the doctor and switched to a cane because it is easier for
him to get around (Tr. at 39). He can lift 8 to 10 pounds but
he cannot carry anything further than 10 or 15 feet (Tr. at
does not do laundry because he has to go downstairs to access
the washer (Tr. at 40). The only cooking plaintiff can do is
with a crock pot and without much preparation -- 20 to 25
minutes (Tr. at 40). Plaintiff does not go grocery shopping,
he does not work out, and he engages in no social activities
(Tr. at 44). Plaintiff does not go out much because he is
afraid to take the risk that someone will step on his foot
(Tr. at 51). Plaintiff wakes up at least once every hour due
to pain or discomfort (Tr. at 51-52). Plaintiff was given
prescription medication for that, but he was unable to take
it because it impacted his ability to concentrate and focus
(Tr. at 52). He was prescribed Gabapentin for this, but when
he took it he was unable to remember his friend's name,
and they had known each other since they were nine years old
(Tr. at 52). Tramadol made his pain worse and he was unable
to get out of bed until 4:00 the next afternoon when he took
it the night before (Tr. at 52).
is unable to work because his pain is so bad that he cannot
concentrate or focus (Tr. at 41). Icing and elevating his
legs to keep the swelling down takes a good part of the day
-- he does this four times a day for 30 minutes at a time
(Tr. at 41). While he is icing his ankle, he watches
television or plays a game on his phone (Tr. at 45-46). If
plaintiff skips a day of elevating his feet and using ice, he
suffers from “fairly significant swelling” and a
lot more pain (Tr. at 49). Plaintiff has to elevate his feet
above his head (Tr. at 49). Plaintiff has talked to Dr.
Corcoran about this need to elevate his feet, and the doctor
agrees (Tr. at 49-50). Sometimes plaintiff's pain is so
bad that he doesn't watch television when he's icing
-- he can't think about anything but the pain, it
consumes everything he is doing at the time (Tr. at 51).
up and getting ready for the day takes a lot longer than it
used to (Tr. at 41). Plaintiff had to put a bench in the
shower so he can sit down (Tr. at 41-42). Dressing himself is
very difficult because he is so stiff, plus his lack of range
of motion makes it difficult (Tr. at 42). His hips are stiff
and he cannot pick his legs up and bend his knees to put his
pants on (Tr. at 42). Putting shoes on is very difficult
because he has to unlace his shoe almost all the way, slide
his foot in, and then re-lace the shoe due to very little
range of motion (Tr. at 43).
ankle pain, knee pain and hip pain have been getting worse
since his accident (Tr. at 43). The difficulty with getting
dressed has gotten worse over time as well (Tr. at 43). His
only treatment right now is medication (Tr. at 46). His
doctor recommended a fusion but it would cost $1, 400 and
plaintiff is still applying for financial assistance (Tr. at
47-48). Plaintiff lost his insurance when he had his
accident, and since then he has been going to the Family
Health Center which is $40 a visit (Tr. at 53).
was supposed to do a work hardening program, but he could not
complete the tasks they had asked him to do every day because
the pain was too great (Tr. at 65). He was supposed to
participate five days a week four hours per day, but he could
not get through a four-hour period let alone every day of the
week (Tr. at 65).
SUMMARY OF MEDICAL RECORDS
August 3, 2010, plaintiff was in an automobile accident and
was taken by ambulance to the hospital (Tr. at 272, 282).
Plaintiff was treated and discharged with crutches and an air
cast on his right ankle (Tr. at 273, 275). He was given a
prescription for Percocet (narcotic) (Tr. at 275). The
following day Robert Koch, M.D., Emergency Director, wrote a
letter to plaintiff's employer, UPS, indicating that he
should be off work until August 7, 2010:
Based on my review of the emergency record I would advise Mr.
Bradley to avoid being in a sitting or standing position due
to the coccyx fracture for 72 hours from this date. This is
to help with the pain that Mr. Bradley will have with
pressure on the coccyx area.
Even after this time Mr. Bradley may have to avoid
prolong[ed] sitting and standing due to pain. I would have
Mr. Bradley return to your workman's compensation
physician or the physician of your choice to further