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Bush v. Berryhill

United States District Court, W.D. Arkansas, Fort Smith Division

July 28, 2017

DAVID ELMA BUSH PLAINTIFF
v.
NANCY A. BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT

          MEMORANDUM OPINION

          HON. BARRY A. BRYANT, U.S. MAGISTRATE JUDGE

         David Elma Bush (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying his applications for Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a period of disability under Titles II and XVI of the Act.

         The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 6.[1] Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.

         1. Background:

         Plaintiff protectively filed his disability applications on February 26, 2014. (Tr. 42). In his applications, Plaintiff alleges being disabled due to lower back and neck injuries, dyslexia, and diabetes. (Tr. 291). Plaintiff alleges an onset date of January 31, 2014. (Tr. 42). These applications were denied initially and again upon reconsideration. (Tr. 107-156).

         Thereafter, Plaintiff requested an administrative hearing on September 4, 2014. (Tr. 188-189). The ALJ granted that request and held an administrative hearing on March 12, 2015 in Fort Smith, Arkansas. Id. At this hearing, Plaintiff was present and was represented by Ivan Gibbons. Id. Plaintiff, a witness for Plaintiff, Vocational Expert (“VE”) Debra Steele testified at this hearing. Id.

         After this hearing, on July 2, 2015, the ALJ entered an unfavorable decision denying Plaintiff's disability applications. (Tr. 39-51). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2018. (Tr. 44, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since January 31, 2014, his alleged onset date. (Tr. 44, Finding 2). The ALJ determined Plaintiff had the following severe impairments: osteoarthritis, degenerative disc disease, diabetes mellitus, and organic mental disorder. (Tr. 44, Finding 3). Despite being severe, the ALJ determined these impairments did not meet or medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Regulations No. 4 (“Listings”). (Tr. 44-46, Finding 4).

         The ALJ determined Plaintiff was forty-nine (49) years old on his allege disability onset date, which is defined as a “younger individual.” (Tr. 49, Finding 7). As for his level of education, the ALJ determined he had at least a high school education and was able to communicate in English. (Tr. 49, Finding 8).

         The ALJ then considered Plaintiff's Residual Functional Capacity (“RFC”). (Tr. 46-49, Finding 5). First, the ALJ evaluated Plaintiff's subjective complaints and found his claimed limitations were not entirely credible. Id. Second, the ALJ determined Plaintiff retained the RFC to perform the following:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform reduced light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following limitations: lift/carry 10 pounds frequently and 20 pounds occasionally; sit/stand/walk 6 hours in an 8 hour workday; occasionally stoop, crouch, crawl, climb, balance, kneel; occasionally reach overhead bilaterally; can do simple, routine, repetitive tasks in a setting where interpersonal contact is incidental to the work performed; can respond to supervision that is simple, direct, and concrete.

Id.

         The ALJ then evaluated Plaintiff's Past Relevant Work (“PRW”) and found Plaintiff was unable to perform his PRW. (Tr. 49, Finding 6). The ALJ also considered whether Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy. (Tr. 50-51, Finding 10). The VE testified at the administrative hearing regarding this issue. Id.

         Based upon that testimony, the ALJ determined Plaintiff retained the capacity to perform occupations such as the following: (1) air purifier servicer with 1, 150 such jobs in Arkansas and 139, 760 such jobs in the United States; (2) laundry worker with 3, 270 such jobs in Arkansas and 391, 650 such jobs in the United States; and (3) account representative “of sandwich board carrier” with 108 such jobs in Arkansas and 15, 160 such jobs in the United States. (Tr. 50-51, Finding 10). Because Plaintiff retained the capacity to perform this other work, the ALJ determined Plaintiff had not been under a disability, as defined by the Act, from January 31, 2015 (alleged disability onset date) through July 2, 2015 (ALJ's decision date). (Tr. 56, Finding 11).

         Thereafter, Plaintiff requested a review by the Appeals Council. (Tr. 1-3). On July 12, 2016, the Appeals Council denied this request. Id. On August 19, 2016, Plaintiff filed the present appeal with the Court. ECF No. 1. The Parties consented to the jurisdiction of this Court on August 23, 2016. ECF No. 6. ...


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