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Brawner v. Astrue

September 30, 2010

RANDAL L. BRAWNER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

Plaintiff Randal L. Brawner appeals from the denial of his application for Social Security Disability Insurance Benefits and Supplemental Security Income (collectively Disability Benefits). 42 U.S.C. §§ 416(I), 423, 1382c. This appeal is brought pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the Decision of the Defendant Commissioner of Social Security is affirmed.

STATEMENT OF FACTS

Brawner was born on December 9, 1954. He quit school before completing the tenth grade. Brawner previously worked as a maintenance mechanic, carpenter, farm hand, and concrete form setter. Answer to Complaint (d/e 6), attached Certified Transcript of Proceedings before the Social Security Administration (R.), at 23, 75, 250-51,253.

On January 28, 2002, Brawner was working on a scaffold when the scaffold collapsed. Brawner fell and broke his left heel. Brawner underwent two surgeries during 2002 to set the fracture. As a result of the fracture and subsequent surgeries, Brawner was diagnosed with post-traumatic and surgical deformity of the left calcaneus with surgical screws and prominent hypertrophic bony spur along the plantar surface of the calcaneus, and paresthesias of the lower extremity. R. 219, 225.

By October 2002, the second surgery was healing. R. 177. Brawner received a prescription for orthotic inserts for his shoes and received the custom inserts on November 26, 2002. At that time, Brawner reported pain in his foot. The treating physician stated in the treatment notes that the condition causing the pain would be permanent "due to the fracture and the surgical intervention; however, I expect that his symptoms should improve with orthotic intervention." R. 176. The treatment notes further stated that Brawner could return to work on November 27, 2002. R. 175.

Brawner stayed off work until early January 2003, approximately eleven and one-half months. Brawner went to work for his brother's concrete pouring company, Brawner Concrete. Brawner installed the forms at construction sites into which the concrete was poured. R. 76-77, 252. Brawner worked for Brawner Concrete during the construction season. Brawner drew unemployment in the winter months. R. 261-62.

On January 15, 2003, Brawner went back to the doctor due to foot pain. He was diagnosed with status post-fracture and post-surgery, plantar fasciitis and Morton's neuroma. He was given Naprosyn and told to continue using the orthotic inserts. Brawner was referred for a functional evaluation. The treatment note indicated that he would need physical therapy. R. 173. Brawner, however, did not go for further evaluation and treatment at that time. Brawner testified that he did not secure the further treatment because he did not have insurance. R. 265-66.

On February 13, 2004, Brawner went to see a doctor from Capitol Community Health Center of Springfield, Illinois (CCHC). CCHC provides free medical care. Brawner saw the doctor at a homeless shelter. He went to see the doctor to have his blood pressure checked. His blood pressure was stable. R. 202.

Brawner worked for his brother's concrete company until June 2005. Brawner testified at the hearing that has not worked since. R. 252.

Brawner filed for Disability Benefits on July 17, 2006. He claimed that he became disabled on January 28, 2002, as a result of the fall and fracture. A Disability Report - Field Office dated July 28, 2006, indicated that Brawner engaged in substantial gainful activity from 2002 until June 2005. As a result, Brawner amended his onset date to July 1, 2005. R. 113-14, 131.

On August 10, 2006, Brawner prepared a Work History Report for the Social Security Administration. R. 75-82. Brawner stated that he worked for Brawner Concrete from March 2003 until June 2005. He stated that during this time he worked more than eight hours a day, five to six days per week. R. 75-76.

On August 30, 2006, Dr. Vittal V. Chapa, M.D., performed a consultative examination of Brawner. Dr. Chapa observed that Brawner was able to bear weight on his feet and to ambulate without assistive devices. Brawner, however, could not walk on his heels because of the pain. Dr. Chapa found full range of motion in Brawner's left ankle. Dr. Chapa diagnosed Brawner with status post-fractured left calceneus. R. 204.

On September 14, 2006, Brawner went back to see a doctor from CCHC. He complained of a rash and heel pain. Brawner claimed that the pain in his foot kept him awake. The treatment notes were handwritten on a treatment note form. The handwriting is largely illegible. The social history section of the treatment note form contained the preprinted question "Drugs?" The preprinted words "marijuana" and "cocaine" were circled next to the question. R. 198. The last page of the treatment note form was entitled "Assessment and Plan." The handwritten notes on that page consist of a list of two numbered items. The first numbered item is largely illegible. The second numbered item is a list of four sub-items. The first sub-item is largely illegible; the second sub-item says "Refer to Dermatology"; the third item says "Cane"; and the fourth sub-item says "Disability Card." R. 200.

Brawner saw doctors from CCHC in May, July and September 2007 for foot pain and stomach problems. At most of these visits, Brawner saw Dr. Sheila Ayorinde, M.D. During these visits, Brawner was diagnosed with gastroesophageal reflux (GERD), left foot pain, and depression. He was prescribed Zantac, Daypro, Lexapro, Zoloft, and Tylenol Arthritis during this period. R. 221-38. An X-ray of the left foot on September 17, 2007, showed post-traumatic and surgical deformity of the left calcaneus with surgical screws, and prominent hypertrophic bony spur along the plantar surface of the calcaneus. The old fracture site was still partially visualized in the X-ray. R. 219.

On October 9, 2007, Brawner went to see Dr. Ayorinde again. She diagnosed paresthesias of the lower extremities and foot pain. R. 225.

On May 8, 2008, Dr. Ayorinde completed a form entitled "§ 8:5 Medical statement regarding physical and mental abilities and limitations for Social Security disability claim." R. 215-16. Dr. Ayorinde opined on the form that Brawner could not stand for any length of time, but could sit for 30 minutes. She opined that Brawner could not work at all. She opined that Brawner could lift ten pounds occasionally and five pounds frequently. She opined that Brawner could only occasionally bend, stoop, perform manipulations of either hand, and raise his arms above his shoulders. She opined that Brawner needed to elevate his legs for most of the time during an eight-hour workday. R. 215.

The Administrative Law Judge (ALJ) conducted an evidentiary hearing on August 21, 2008. R. 242-82. Brawner appeared with his attorney. Brawner and vocational expert Bonnie Gladden testified at the hearing. Brawner testified that he lived with his wife in an apartment. His five adult children no longer lived with them. R. 248. Brawner testified that the apartment building had an elevator. Brawner testified that he lived six or seven blocks from the location of the hearing and rode a three-wheel scooter to the hearing. ...


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