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Bush v. Berryhill

United States District Court, E.D. Arkansas, Hot Springs Division

May 16, 2018

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

          RECOMMENDED DISPOSITION

          JEROME T. KEARNEY, UNITED STATES MAGISTRATE JUDGE

         INSTRUCTIONS

         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge Brian S. Miller. 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 objection; 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.

         REASONING FOR RECOMMENDED DISPOSITION

         Marcus Bush applied for social security disability benefits with an alleged onset date of February 2, 2012. (R. at 127). After a hearing, the administrative law judge (ALJ) denied his application. (R. at 224). The Appeals Council granted review. (R. at 231-33). After a second hearing, the ALJ once again denied Bush's application. (R. at 30). The Appeals Council denied Bush's request for review. (R. at 1). The ALJ's decision now stands as the Commissioner's final decision, and Bush has requested judicial review.

         For the reasons stated below, the magistrate judge recommends affirming the Commissioner's decision.

         I. The Commissioner's Decision

         The ALJ found that Bush had the severe impairments of hip/pelvic fracture, posttraumatic stress disorder (PTSD), anxiety, degenerative disk disease of the lumbar spine with a herniated disk at ¶ 4-5, and left ankle fractures. (R. at 17). In determining Bush's residual functional capacity (RFC), the ALJ found that Bush could lift and carry up to 10 pounds occasionally and less than 10 pounds frequently; could stand/walk a total of two hours during an eight-hour workday; could sit a total of six hours in an eight-hour workday; could push/pull 10 pounds occasionally and less than 10 pounds frequently; would require a sit/stand option involving standing or walking in 20-minute intervals and sitting for 2-hour intervals; must use an assistive device to balance while walking, but not while standing; could occasionally operate left foot controls; could understand, remember, and carry out simple, routine tasks; could make judgments and decisions in simple, work-related situations; could respond appropriately to coworkers and supervisors but would be limited to occasional incidental contact with them; could not deal with the general public; and could respond to minor changes in the work routine. (R. at 20). This RFC precluded all of Bush's past relevant work. (R. at 28). The ALJ took testimony from a vocational expert (VE) and determined that Bush could perform jobs such as machine tender or inspector. (R. at 29). The ALJ therefore held that Bush was not disabled. (R. at 29-30).

         II. Discussion

         Bush argues that the ALJ failed to properly account for limitations resulting from a hand fracture and subsequent surgical repair, failed to fully account for his mental impairments, erred in finding that his impairments did not meet listing 1.02 or listing 1.04, gave undue weight to the opinion of a consultative examiner, and relied on incomplete testimony from the VE.

         The Court is to affirm the ALJ's decision if it is supported by “substantial evidence in the record as a whole, ” which is more than a scintilla but less than a preponderance. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009). Even if it is possible to draw two inconsistent positions from the evidence, the Court must affirm if one of those positions represents the ALJ's findings. Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015). The Court considers evidence supporting and evidence detracting from the Commissioner's decision, but it will not reverse simply because substantial evidence could support a different outcome. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000).

         a. Hand Impairment

         Bush contends that the ALJ should have included additional manipulative limitations to account for a hand fracture that had been repaired. Bush correctly notes that the ALJ must account for all impairments in the RFC, including non-severe impairments. 20 C.F.R. §§ 404.1545(a)(2) and 416.945(a)(2). However, the medical records in this instance do not bear out any limitations related to Bush's hand.

         Daniel Irons, M.D. conducted a consultative examination and found that Bush had normal grip in both hands, could hold a pen and write, touch fingertips to palm, oppose thumbs to fingers, and pick up a coin. (R. at 588). Mark Tait, M.D. similarly found that Bush had 5/5 grip strength bilaterally with adequate fine motor movements, dexterity, and ability to grasp objects bilaterally. (R. at 671). Bush testified to some limitations with his ability to reach and grasp. (R. at 62-64). However, there are no medical records supporting these limitations. The objective evidence indicates no ...


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