United States District Court, E.D. Arkansas, Eastern Division
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.
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).
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.
reasons stated below, this Court should reverse the ALJ's
decision and remand for further review.
The Commissioner's Decision:
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.
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).
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).
Standard of Review
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
“[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)
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 ...