Bradford v. Colvin
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is AFFIRMED. A separate Judgment will accompany this Order. Signed by District Judge Ronnie L. White on March 11, 2016. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES R. BRADFORD,
ACTING COMMISSIONER OF SOCIAL
Case No. 4:15-CV-189-RLW
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security' s final decision denying James R. Bradford' s ("Bradford") application for
disability insurance benefits under Title II and Title XVI of the Social Security Act.
Bradford was born in 1960, and he alleged that he became disabled beginning June 24,
2012. (Tr. 165-72). Bradford alleged disability based upon pancreatitis, left eye impairment,
and broken right ankle. (Tr. 165, 171 , 190). Bradford had past relevant work as a commercial
cleaner and materials handler.
The Social Security Administration ("SSA") denied Bradford's application for benefits,
and he filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). The
SSA granted Bradford' s request and a hearing was held on October 4, 2013. The ALJ issued a
written decision on November 15, 2013 , upholding the denial of benefits. (Tr. 14-27). Bradford
filed a timely Request for Review of Hearing Decision with the Appeals Council (Tr. 13). The
Appeals Council denied Bradford' s Request for Review. (Tr. 1-4). The decision of the ALJ thus
stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).
Bradford filed this appeal on January 27, 2015. (ECF No. 1). Bradford filed a Brief in Support
of his Complaint on May 1, 2015. (ECF No. 12). The Commissioner filed a Brief in Support of
the Answer on June 26, 2015. (ECF No. 15). Bradford filed a reply brief on July 8, 2015. (ECF
Decision of the ALJ
The ALJ found that Bradford had the following severe impairments: status post right
calcaneal fracture; mild degenerative disease of the spine; traumatic cataract of the left eye. (Tr.
19). The ALJ, however, determined that Bradford did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments 20 CFR
Part 404, Subpart P, Appendix 1. (Tr. 20). The ALJ found that Bradford had the residual
functional capacity ("RFC") to perform medium work, except the claimant can frequently climb
ramps and stairs; occasionally use foot and leg controls on the right, kneel, crouch, and crawl;
never climb ladders, ropes, and scaffolding; avoid concentrated dog and cat dander; and avoid all
unprotected heights, hazardous machinery, and industrial vibrations.
found that Bradford was unable to perform any past relevant work.
determined that, based on Bradford's RFC, jobs exist in significant numbers in the national
economy that Bradford could perform. (Tr. 26-27). Consequently, the ALJ found that Bradford
was not disabled . (Tr. 26).
The following is a summary of relevant evidence before the ALJ.
Bradford testified on October 4, 2013, as follows:
Bradford is not working and last worked on June 22, 2012. (Tr. 35). At that time,
Bradford was working as a commercial cleaner for four hours a week. (Tr. 35). He was making
$7.25/hour and made around four-hundred dollars a month.
His only full-time
employment was as a material handler. (Tr. 36). He carried materials between 50 and 100
pounds. (Tr. 36). He had a history of abusing alcohol, but it has been 15 years since he did so.
(Tr. 36-37). He does not use street drugs, except marijuana, and does not abuse prescription
drugs. (Tr. 37-38). He has never had a driver' s license. (Tr. 37). He obtained a GED in 1977
and writes and understands English. (Tr. 37). He has never been incarcerated. (Tr. 37). He has
no work-related certifications. (Tr. 37-38).
Bradford' s attorney states that Bradford fell off of a ladder on June 24, 2012 and
fractured his right ankle. (Tr. 39). Bradford' s attorney asserts that Bradford uses a cane because
of his discomfort from his right ankle. (Tr. 39). Bradford' s attorney states that Bradford can
only be up on his leg for short period ohime. He sits mostly, but must intermittently recline and
elevate his leg to take pressure off of his lower back; he must do this for a total of three or four
hours over the course of the day. Bradford's attorney says that Bradford's sleep is poor because
of his physical discomfort and, as a result, he must nap during the day. (Tr. 40). Bradford's
attorney claims that Bradford has migraine-like headaches in the eye, which incapacitates him
one day per week. (Tr. 40). Finally, Bradford's attorney notes that Bradford is over 50, has only
performed heavy labor, and lacks the capacity to perform even sedentary work. (Tr. 40).
Bradford received his cane from the hospital in July 2012. (Tr. 41). Before that, he was
using crutches after he fractured his right ankle on June 24, 2012. (Tr. 41). He fell off of a
ladder and broke his right ankle. (Tr. 42). He is 5 feet, 7 inches, and weighs 135 pounds. (Tr.
42). He can stand for an hour and 20 minutes some days. He can walk a couple of blocks. (Tr.
42). Some days he can get down on his hands and knees and move about. (Tr. 42). He is not
physically able to crouch or squat down. (Tr. 43). He is right-handed. (Tr. 43). He can reach in
all directions with either arm. (Tr. 43 ). He can lift only 10 pounds with his right arm because he
gets a pain in his arm and side. (Tr. 43). He can lift 20 pounds with his left hand. (Tr. 43). He
cannot push and pull a cart with wheels, carrying 50 pounds, for a distance of 25 steps. (Tr. 43).
He can push an empty grocery cart with wheels over a smooth floor for 25 steps. (Tr. 43-44).
The most he can push in a grocery cart is around 20 pounds. (Tr. 44).
He can make a fist with either hand. (Tr. 44). He can press his thumb to the fingers of
each hand. (Tr. 44). He can see with his right eye, but his left eye has a cataract. (Tr. 44).
Someone robbed him and hit him in the left eye with a crowbar. (Tr. 45). He had an indentation
on his head above his eyebrow from the assault. (Tr. 47). His speech, hearing and sense of
smell are all ok.
He has been able to concentrate and pay attention during the
proceeding. (Tr. 45-46). He is not sensitive to bright lights, loud noise, or darkness. (Tr. 46).
He cannot be around dogs and cats. (Tr. 46). He last saw a physician at a Saint Louis University
Hospital clinic for his ankle a couple weeks ago. (Tr. 46-47). He has no income and currently
lives off of food stamps. (Tr. 4 7). He uses a cane when he is on his feet. (Tr. 47). Throughout
the day, he has to lie down and elevate his foot, for a couple of hours total in a day. (Tr. 48). He
also has back pain, leg pain, and side pain at night, which started when he fell off the ladder.
(Tr. 48). He gets migraine-like pain in his eye about twice a week. (Tr. 49). Once a week the
pain is so severe that it is incapacitating. (Tr. 49). When he gets one that bad, he takes a
Vicodin and puts a cold towel over his eye. (Tr. 49). He does not sleep well at night. He has to
take Vicodin to sleep. He is supposed to take one Vicodin but usually takes two because of the
pam. (Tr. 49-50). He went to the clinic for the pain in his eye on August 5. (Tr. 50). The
doctor dilated his eye but did not do anything else. (Tr. 51 ).
Vocational expert Brian Wormer testified as follows:
The ALJ excluded commercial cleaner from past work because it was only part time and
less than $400 per month, which leaves only material handler and laborer as past work at heavy
and very heavy. (Tr. 51-52). The ALJ presented the first hypothetical person who is able to lift
and carry occasionally 50 pounds, frequently 25 pounds; sit six hours out of an eight-hour day;
stand and walk six hours out of an eight-hour day; the use right foot and leg controls is reduced
to only occasionally and use of left foot and leg controls is unlimited; use of hand and arm
controls, feeling, fingering, handling, and reaching overhead have no established limitations;
never do ladders, ropes, or scaffolds; ramps and stairs only frequently; no established limitation
on balancing, bending, or stooping; kneeling, crouching, crawling only occasionally; no
established limitation on fumes, chemicals, dust, mold, but should avoid concentrated exposure
to dog and cat dander; no established limitations on extremes of temperature; avoid all
unprotected heights, hazardous moving machinery, and industrial vibration; decreased vision in
the left eye, but person is able to see and avoid and perceive objects on all quadrants, including
no peripheral loss.
(Tr. 53). Mr. Wormer testified that this hypothetical person could not
perform the past relevant heavy work; he would be able to perform unskilled, medium work.
(Tr. 53 , 54). Examples of unskilled, medium jobs are hand packager, machine packager, and
kitchen helper. (Tr. 54).
The ALJ proposed the following second hypothetical person, who has the capability to
walk at least two blocks; he would experience discomfort and pain with a history of right ankle
fracture ; the non-exertional limitation associated with pain and discomfort would be 4 percent of
the work day with loss productivity of 4 percent; he must be able to frequently respond to routine
changes in the work setting; no established limitation on general public, supervisor, coworker
interaction; able to do simple, repetitive, unskilled tasks.
Mr. Wormer testified that this
hypothetical person would be able to do the same medium, unskilled jobs as hypothetical person
number one. (Tr. 55).
The ALJ proposed the following third hypothetical person: unable to stay on task more
than 20 percent of the day because of the consumption of marijuana and other narcotics; loss of
productivity of 20 percent; not able to interact promptly to routine changes; unable to interact
with the general public, supervisors, and coworkers. (Tr. 55-56). Mr. Wormer testified that this
hypothetical person would not be able to sustain full-time employment at any exertional level if
he were off-task for 20 percent of the time. (Tr. 56).
The ALJ proposed the following fourth hypothetical person with the same limitations as
in hypotheticals numbers one and two, and that person could still do simple, repetitive, unskilled
tasks and interact without limitation with the general public, supervisors, and coworkers; but,
because of medication and taking Vicodin once per day, the person would be off task a combined
total of 5 percent of the workday, with 5 percent loss of productivity. (Tr. 56). Mr. Wormer
testified that this person could still do the unskilled, medium jobs: hand packager, machine
packager, and kitchen helper. (Tr. 57).
The ALJ proposed the following fifth hypothetical person: this person chose to use a cane
provided at the hospital following his fracture of his leg and recuperation, and he continued to
use that cane for support, which allowed him to walk two blocks. (Tr. 57). The cane is not
required to stand, but used only as a personal choice for ambulation. (Tr. 57). Mr. Wormer
testified that this hypothetical person could still perform the same unskilled, minimum jobs
previously identified. (Tr. 57).
The ALJ proposed the sixth hypothetical person who, because of persistent pain and
discomfort, had to lie down and elevate his feet and take at least two additional breaks during the
day of 15 minutes. (Tr. 57). Mr. Wormer testified that such a person would not be able to
perform any employment described previously. (Tr. 57).
Bradford' s relevant medical records are summarized as follows:
On June 24, 2012, Bradford was seen for a right ankle fracture at St. Louis University
Hospital after he fell off a ladder.
Bradford was prescribed hydrocodone-
acetaminophen every 4 hours as needed for pain. (Tr. 309). On July 2, 2012, Bradford was seen
at St. Louis University Hospital. (Tr. 310-11 ). Bradford was dressed in a compressive dressing
and a surgical packet was completed because he needed ORIF (Open Reduction Internal
Fixation) surgery of the right calcaneus. (Tr. 323). Bradford was instructed to schedule the
surgery. On July 9, 2012, Bradford was seen at by Emilio Bianchi at Smiley Urgent Care and
was diagnosed with a sprained ankle as a result of his fall on June 24, 2012. (Tr. 250-53). On
July 25, 2012, Sheila Cemicek, Director of Clean-Tech Company (former employer), indicated
that the company did not have a desk job available for Bradford. (Tr. 185).
On August 1, 2012, Bradford filled out a Function Report for the Social Security
Administration. (Tr. 207-17). He indicated that he sometimes has visitors. He can dress, bathe,
care for his hair, shave, feed, and toilet by himself. He can prepare his own lunches. He can go
shopping. He can pay bills, count change, and use a checkbook. He can watch television and
listen to the radio. He can follow written instructions very well.
On August 2, 2012, Bradford was seen at St. Louis ConnectCare by Dr. Kang. (Tr. 357).
Dr. Kang noted no significant change; no fracture or dislocation. (Tr. 357). On August 15, 2012,
Bradford was seen by Dr. Lutey at Grace Hill. (Tr. 326-27). Bradford was prescribed tramadol
and Tylenol-codeine. Dr. Lutey stated that Bradford was unable to work until September 4,
2012. (Tr. 328). Dr. Lutey stated that Bradford could return to work on September 4, 2012 on
light work activity, and after three weeks could resume medium work activity. (Tr. 328). On
September 5, 2012, Dr. Lutey renewed Bradford' s prescription for Vicodin. (Tr. 329).
September 20, 2012, Bradford was seen at Grace Hill for evaluation of the pain in his eye and
right ankle pain. (Tr. 330-336). He was diagnosed with a cataract and suspected glaucoma. He
was instructed to return in a year. It was noted he is scheduled for surgery at SLU on October
11 , 2012. On November 27, 2012, Bradford was seen at Grace Hill regarding a lump in his neck.
On December 2, 2012, Bradford tested positive for marijuana. (Tr. 337). On
January 7, 2013 , Bradford was seen at Grace Hill for a refill of Vicodin. (Tr. 340). On March 5,
2013 , Bradford was seen at Grace Hill for a lump in his neck. (Tr. 348). On March 10, 2013,
Bradford tested positive for marijuana. (Tr. 341). On March 15, 2013 , Dr. Lutey wrote Bradford
and stated that his labs were normal, no further testing was necessary, and she would see him at
his next scheduled appointment. (Tr. 35).
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. "'If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled."' Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in "substantial gainful activity" to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c).
The Social Security Act defines " severe impairment" as
"any impairment or combination of impairments which significantly limits [claimant's] physical
or mental ability to do basic work activities .... " Id. "The sequential evaluation process may be
terminated at step two only when the claimant' s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work. " Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603 , 605 (8th Cir.
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d);
Part 404, Subpart P, Appendix 1. If the claimant has one of, or the medical equivalent of, these
impairments, then the claimant is per se disabled without consideration of the claimant' s age,
education, or work history. Id.
Fourth, the impairment must prevent claimant from doing past relevant work. 1 20 C.F.R.
§§ 416.920(e), 404.1520(e). At this step, the burden rests with the claimant to establish his RFC.
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008); see also Eichelberger, 390 F.3d at 59091 ; Masterson v. Barnhart, 363 F.3d 731 , 737 (8th Cir. 2004). RFC is defined as what the
claimant can do despite his or her limitations, 20 C.F.R. § 404.1545(a), and includes an
assessment of physical abilities and mental impairments. 20 C.F.R. § 404.1545(b)-(e). The ALJ
will review a claimant' s RFC and the physical and mental demands of the work the claimant has
"Past relevant work is work that [the claimant] has done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for [the claimant] to learn how to do it."
Mueller v. Astrue, 561 F.3d 837, 841 (8th Cir. 2009) (citing 20 C.F.R. § 404.1560(b)(l)).
done in the past. 20 C.F.R. § 404.1520(±). If it is found that the claimant can still perform past
relevant work, the claimant will not be found to be disabled. Id. ; 20 C.F.R. § 416.920(a)(4)(iv).
If the claimant cannot perform past relevant work, the analysis proceeds to Step 5.
At the fifth and last step, the ALJ considers the claimant's RFC, age, education, and work
experience to see if the claimant can make an adjustment to other work.
§ 416.920(a)(4)(v). If it is found that the claimant cannot make an adjustment to other work, the
claimant will be found to be disabled. Id.; see also 20 C.F.R. § 416.920(g). At this step, the
Commissioner bears the burden to "prove, first that the claimant retains the RFC to perform
other kinds of work, and, second that other work exists in substantial numbers in the national
economy that the claimant is able to perform." Goff, 421 F.3d at 790; Nevland v. Apfel, 204 F.3d
853 , 857 (8th Cir. 2000). The Commissioner must prove this by substantial evidence. Warner v.
Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
If the claimant satisfies all of the criteria of the five-step sequential evaluation process,
the ALJ will find the claimant to be disabled. "The ultimate burden of persuasion to prove
disability, however, remains with the claimant." Id.; see also Harris v. Barnhart, 356 F.3d 926,
931 n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)).
This court reviews the decision of the ALJ to determine whether the decision is supported
by "substantial evidence" in the record as a whole. See Smith v. Shala/a, 31 F.3d 715, 717 (8th
Cir. 1994). "Substantial evidence is less than a preponderance but is enough that a reasonable
mind would find it adequate to support the Commissioner's conclusion."
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002); see also Cox v. Astrue, 495 F.3d 614, 617 (8th
Cir. 2007). Therefore, even if a court finds that there is a preponderance of the evidence against
the ALJ's decision, the ALJ's decision must be affirmed if it is supported by substantial
evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). In Bland v. Bowen, 861 F.2d 533 ,
535 (8th Cir. 1988), the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the weight of the
evidence and it allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the Secretary may decide to grant
or deny benefits without being subject to reversal on appeal.
As such, "[the reviewing court] may not reverse merely because substantial evidence exists for
the opposite decision." Lacroix v. Barnhart, 465 F.3d 881 , 885 (8th Cir. 2006) (quoting Johnson
v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)). Similarly, the ALJ decision may not be reversed
because the reviewing court would have decided the case differently. Krogmeier, 294 F.3d at
Development of the RFC
Bradford contends that the ALJ failed to conduct a sufficient credibility analysis. (ECF
No. 12 at 7). Bradford notes that he has a work history that includes physically difficult (or
"heavy") exertion, as well as work through temporary services, which indicates a desire to work.
(ECF No. 12 at 7). Bradford argues that the ALJ did not credit the third-party statement from
Sheila Cemicek, Director of Human Resources at Clean-Tech, who stated that there was no desk
job available for Bradford, but that his former heavy position would be available if he is released
to perform such work by his physician. Bradford states that the ALJ also ignored, as part of
Bradford' s disability report, the field officer noted that Bradford limped and had difficulty
moving because of his right ankle. (Tr. 187). The field officer also reported that Bradford
"appeared to have difficulties proving [sic] me with medical information, as he struggled to
remember doctor' s names and treatment dates." (Tr. 187). Bradford claims that the ALJ should
have considered this evidence as part of his credibility analysis. (Tr. 12 at 9). Bradford argues
that that ALJ should discuss corroborative lay statements, such as these, and make explicit
credibility determinations, which he did not do . (ECF No. 12 at 10 (citing Prince v. Bowen, 894
F.2d 283 , 286 (8th Cir. 1990)).
Bradford also argues that the ALJ did not include a narrative discussion of the rationale
for the RFC assessment and the RFC is not supported by substantial evidence. (ECF No. 12 at
13-14). Bradford argues that the ALJ did not include a specific rationale or function-by-function
narrative discussion of the RFC assessment. (ECF No. 12 at 14). Instead, Bradford argues that
the ALJ merely quoted boilerplate language that he evaluated "objective findings" and developed
the RFC "by comparing" the allegations "with all of the evidence" and that he "considered the
objective findings, statements of the claimant, and opinion evidence from medical and other
sources ... ." (ECF No. 12 at 14 (citing Tr. 25)). Bradford particularly notes that the ALJ did not
provide an explanation for why he included a limitation to avoid concentrated dog and cat
dander. (ECF No. 12 at 14).
The Court holds that in finding that Bradford was capable of a range of medium work,
the ALJ considered the record as a whole, including Bradford' s subjective complaints. (Tr. 1925).
"Before determining a claimant' s RFC, the ALJ first must evaluate the claimant's
credibility." Pearsall v. Massanari, 274 F.3d 1211 , 1218 (8th Cir. 2001). "The duty of deciding
questions of fact, including the credibility of [Bradford's] subjective testimony, rests with the
Commissioner." Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir. 2003). "If an ALJ explicitly
discredits the claimant's testimony and gives good reason for doing so, we will normally defer to
the ALJ's credibility determination." Gregg, 354 F.3d at 714 (citing Russell v. Sullivan, 950 F.2d
542, 545 (8th Cir. 1991)).
The ALJ properly considered that Bradford's allegations were inconsistent with the
record as a whole, including the medical opinions, his medical treatment, the medical evidence,
and his daily activities.
On July 24, 2012, Dr. Barbara Lutey wrote a note
indicating that Bradford was excused from work for six (6) weeks, but that he may return to
work on September 4, 2012.
Dr. Lutey stated that Bradford could perform no
prolonged standing or climbing. (Tr. 261). On August 15; 2012, Dr. Lutey stated that Bradford
was unable to work until September 4, 2012. (Tr. 328). Dr. Lutey stated that Bradford could
return to work on September 4, 2012 on light work activity, and after three weeks could resume
medium work activity. (Tr. 328). The ALJ properly considered Dr. Lutey' s medical opinions,
but found them not entitled to more than some weight because there was no indication that
Bradford' s work limitations would continue after September 2012. (Tr. 24-25). The Court holds
that the ALJ's RFC finding that Bradford could perform a medium range of work was supported
by Dr. Lutey' s opinion that Bradford could perform medium work within 12 months of his
injury. (Tr. 20, 328).
The ALJ also determined that Bradford' s minimal and conservative treatment after
September 2012 did not support his allegation. (Tr. 23). Bradford injured his right ankle in 2012
when he fell off a ladder. Bradford initially received treatment in the emergency room. He
followed up with doctor appointments and referrals to an orthopedist. (Tr. 250-53 , 314-17, 323,
354). Bradford, however, received minimal treatment after September 2012 when Dr. Lutey
opined that Bradford could perform medium work. The Court holds that Bradford' s minimal and
conservative treatment after September 2012 do not support his allegations of disabling pain.
(Tr. 23). See Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001) ("As is often true in disability
cases, the question was not whether Hogan was experiencing pain, but rather the severity of her
pain."). This finding is supported by the objective testing of Bradford's right ankle, which
showed a fracture or an "old" fracture with minimal degenerative joint disease. (Tr. 19, 295,
302-05, 318-19, 323 , 334, 354-57).
Likewise, a lumber MRI showed "mild" degenerative
changes. (Tr. 20, 297). Bradford exhibited normal gait, full strength, and no sensory deficits,
and appeared in no acute distress. (Tr. 251-52, 273 , 315, 318, 331 , 335). Bradford's medical
records after September 2012 did not exhibit any significant, objective abnormalities, just mild
(Tr. 338, 248-50). The Court holds that such objective findings constitute
medical evidence to support a finding that a claimant can perform light or medium work. See
Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)(citing Reynolds v. Chater, 82 F.3d 254, 258
(8th Cir. 1996)("Although specific articulation of credibility findings is preferable, [the Court]
consider[ s] the lack thereof to constitute a deficiency in opinion-writing that does not require
reversal because the ultimate finding is supported by substantial evidence in the record. ").
Because the ALJ's findings are consistent with the objective medical evidence and Dr. Lutey' s
opinion, the Court holds that the ALJ properly determined the RFC based upon the record as a
whole. (Tr. 25).
Bradford also argues that the ALJ erred by restricting him to no concentrated cat or dog
dander. (ECF No. 12 at 14). However, Bradford testified that he had difficulty around dogs and
cats. (Tr. 46). The Court holds that the ALJ did not err in giving some weight to Bradford's
complaints when the ALJ fashioned the RFC. (Tr. 25).
Finally, the Court holds that the ALJ properly evaluated Bradford's daily activities when
fashioning his RFC. McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (holding that claimant
was not unduly restricted in his daily activities, which supported a finding that his pain was not
completely disabling). In his Function Report, Bradford indicated that he retained the ability to
maintain his personal care, shop, and watch television.
The ALJ considered
Bradford's activities in evaluating RFC. (Tr. 21, 23).
Bradford also contended that his work history supports his credibility. (ECF No. 12 at 89). However, the Court finds that Bradford's poor work history does not support his credibility.
See Tr. 176. Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (ALJ found that Buckner's
"sporadic" work history prior to his alleged disability date "indicates that he was not strongly
motivated to engage in meaningful productive activity even prior to the alleged onset of
disability and weighs against his credibility in assigning reasons for not working). Bradford had
very few years with earnings above the substantial gainful activity level.
(Tr. 176). Thus,
Bradford's work history weighs against his credibility.
Bradford also claimed that the ALJ failed to properly evaluate third-party statements.
(ECF No. 12 at 9). Bradford argues that the ALJ did not address a third-party statement from
Sheila Cemicek, from Bradford's former employer, stating that it did not have any available desk
jobs for him in July 2012. (Tr. 185). The Court, however, notes that this statement does not
demonstrate Bradford' s limitations, particularly since this statement came only one month after
Bradford' s injury.
Likewise, Bradford notes that, in July 2012, a Social Security employee
opined that Bradford indicated that Bradford limped and had difficulties moving, and that he
struggled to provide medical information and to remember doctor' s names and treatment dates.
(ECF No. 12 at 9). The Court again notes that the record does not indicate that this limitation
continued after 2012. As previously discussed, the evidence before the ALJ and this Court does
not demonstrate that Bradford' s limitations impaired him for 12 continuous months. As a result,
the Court finds that the ALJ was not deficient in mentioning these statements because these
statements did not have any relevance as to whether Bradford was disabled under the Act. See
Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011) (noting that "[a]lthough the ALJ did not
address all of these specific claims" such discussion was not necessary because these statements
did not have any bearing on the outcome of the claimant's case).
VE Testimony Conflicted with DOT
Bradford claims that the vocational expert's testimony was inconsistent with the DOT.
(ECF No. 12 at 10-13). Bradford contends that the ALJ did not satisfy his responsibility to ask
the vocational expert the required questions regarding conflicts between the vocational expert's
testimony and the DOT/Selected Characteristics of Occupations ("SCO"). (ECF No. 12 at 11).
Rather, Bradford contends that the vocational expert merely stated that his testimony was
consistent with the information contained in the DOT without making a finding on the existing
conflicts. (ECF No. 12 at 11). Bradford stated that there was a conflict between the DOT and
SCO and the vocational expert' s testimony regarding limits on the use of foot and leg controls,
hand and arm controls, ladders, ropes, scaffolds, ramps, stairs, and exposure to dog and cat
dander. (ECF No. 12 at 12). Bradford contends that the non-exertional limits described by the
ALJ are not detailed by the DOT or SCO and, therefore, the vocational expert's responses are
"impliedly in conflict." (ECF No. 12 at 12). As a result, Bradford argues that the ALJ's stepfive findings and conclusions are not supported by substantial evidence. (ECF No. 12 at 13).
The Court holds that there is no conflict between the vocational expert's testimony and
the DOT and SCO that requires remand. See Moore v. Colvin, 769 F.3d 987, 990 (8th Cir. 2014)
("A VE must offer an explanation for any inconsistencies between her testimony and the DOT,
which the ALJ may accept as reasonable after evaluation.").
The DOT does not address
operating foot controls and exposure to dog and cat dander. Therefore, no conflict exists as to
these issues. Second, the DOT addresses climbing. The SCO defines climbing as ascending or
descending ladders, stairs, scaffolding, ramps, poles and the like, using feet and legs or hands
and arms. (ECF No. 15 at 12). Although this could create a possible conflict with the DOT and
the vocational expert' s testimony, see Moore , 769 F. 3d at 990, none of the jobs identified by the
vocational expert involve climbing. (ECF No. 12 at 12). Because there are no apparent conflicts
between the vocational expert' s testimony and the DOT/SCO, the Court finds that the ALJ
properly relied on the vocational expert's testimony in finding Bradford was not disabled.
Based on the foregoing, the Court finds that the ALJ' s decision was based on substantial
evidence in the record as a whole and should be affirmed.
IT IS HEREBY ORDERED that this action is AFFIRMED. A separate Judgment will
accompany this Order.
Dated this/L_th day of March, 2016.
RONNIE L. WHITE
UNITED STATES DISTRJCT JUDGE
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