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Bradley v. Berryhill

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

March 31, 2017

BRENT A. BRADLEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          ROBERT E. LARSEN, United States Magistrate Judge

         Plaintiff 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.

         I. BACKGROUND

         On July 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.


         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).


         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 Denise Weaver, in addition to documentary evidence admitted at the hearing.


         The record contains the following administrative reports:

         Earnings Record

         The record shows that plaintiff earned the following income from 1996 through 2014, shown in both actual and indexed earnings:


Actual Earnings

Indexed Earnings



$1, 343.06























































(Tr. at 141-147, 152-153).

         Function Report

         In a 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).

         Plaintiff's 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).


         During 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.

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         The 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 39).

         Plaintiff 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).

         Plaintiff 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).

         Getting 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).

         Plaintiff's 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).

         Plaintiff 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).


         On 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 ...

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