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Burns v. Berryhill

United States District Court, E.D. Arkansas, Eastern Division

October 30, 2017

MICHAEL GLEN BURNS PLAINTIFF
v.
NANCY A. BERRYHILL, [1]Acting Commissioner, Social Security Administration DEFENDANT

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge James M. Moody, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objections; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         I. Introduction:

         Plaintiff, Michael Glen Burns, applied for disability insurance benefits and supplemental security income benefits on August 23, 2013, alleging a disability onset date of October 29, 2013. (Tr. at 9). After conducting a hearing, the Administrative Law Judge (“ALJ”) denied his application. (Tr. at 20). The Appeals Council denied his request for review. (Tr. at 1). Thereafter, Burns appealed his claim to this Court. (Tr. at 427, 493). This Court remanded the case to the Commissioner for further proceedings on July 1, 2015. (Tr. at 493-496). The Appeals Council subsequently remanded the case to an ALJ for another hearing for further consideration of the evidence and of Mr. Burns's residual functional capacity (“RFC”), as well as further development of vocational evidence through a properly phrased hypothetical. (Tr. at 497-498).

         After conducting a second hearing on May 25, 2016, the ALJ denied Mr. Burns' application. (Tr. at 436). The Appeals Council denied his request for review. (Tr. at 416-423). The ALJ's decision now stands as the final decision of the Commissioner. Mr. Burns has requested judicial review.

         For the reasons stated below, this Court should reverse the ALJ's decision and remand for further review.

         II. The Commissioner's Decision:

         The ALJ found that Mr. Burns had not engaged in substantial gainful activity since the alleged onset date of October 26, 2009. (Tr. at 429). At Step Two, the ALJ found that Mr. Burns has the following severe impairments: osteoarthritis in the left ankle, bursitis, and degenerative disc disease. Id.

         After finding that Mr. Burns' impairment did not meet or equal a listed impairment (Tr. at 430), the ALJ determined that Mr. Burns had the residual functional capacity (“RFC”) to perform the full range of light work, except that: (1) he could only occasionally balance, stoop, kneel, crouch, crawl, and climb; (2) he could only occasionally push and pull with his dominant upper extremity (right); and (3) he could not perform work around hazards. (Tr. at 430).

         The ALJ determined that Mr. Burns was not capable of performing any past relevant work. (Tr. at 434). Relying upon the testimony of the Vocational Expert (“VE”) at Step Five, the ALJ found that, based on Burns' age, education, work experience, and RFC, jobs existed in the national economy which he could perform, specifically tanning salon attendant and caller. (Tr. at 435). Consequently, the ALJ found that Burns was not disabled. (Tr. at 436).

         III. Discussion:

         A. Standard of Review

         The Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record as a whole and whether it is based on legal error. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see also 42 U.S.C. § 405(g). While “substantial evidence” is that which a reasonable mind might accept as adequate to support a conclusion, “substantial evidence on the record as a whole” requires a court to engage in a more scrutinizing analysis:

“[O]ur review is more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision; we also take into account whatever in the record fairly detracts from that decision.” Reversal is not warranted, however, “merely because substantial evidence would have supported an opposite decision.”

Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted).

         It is not the task of this Court to review the evidence and make an independent decision. Neither is it to reverse the decision of the ALJ because there is evidence in the record which contradicts his findings. The test is whether there is substantial evidence in the ...


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