Bush v. Social Security Administration, No. 5:2017cv00184 - Document 22 (E.D. Ark. 2018)
Court Description: RECOMMENDED DISPOSITION: The undersigned magistrate judge recommends affirming the decision of the Commissioner. Objections to these findings and recommendations are due no later than 14 days from the date of this Order. Signed by Magistrate Judge Jerome T. Kearney on 5/17/2018. (mcz)
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Bush v. Social Security Administration Doc. 22 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION MARCUS BUSH PLAINTIFF v. No. 5:17-CV-00184-BSM-JTK NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT RECOMMENDED DISPOSITION INSTRUCTIONS The following Recom m ended Disposition (“Recom m endation”) has been sent to United States District J udge Brian S. Miller. You m ay file written objections to all or part of this Recom m endation. If you do so, those objections m ust: (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 Recom m endation. By not objecting, you m ay 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, 20 12. (R. at 127). After a hearing, the adm inistrative 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 Com m issioner’s final decision, and Bush has requested judicial review. For the reasons stated below, the m agistrate judge recom m ends affirm ing the Com m issioner’s decision. I. The Commissioner’s Decision Dockets.Justia.com The ALJ found that Bush had the severe im pairm ents of hip/ pelvic fracture, posttraum atic stress disorder (PTSD), anxiety, degenerative disk disease of the lum bar spine with a herniated disk at L4– 5, and left ankle fractures. (R. at 17). In determ ining 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 -m inute intervals and sitting for 2-hour intervals; m ust use an assistive device to balance while walking, but not while standing; could occasionally operate left foot controls; could understand, rem em ber, and carry out sim ple, routine tasks; could m ake judgm ents and decisions in sim ple, work-related situations; could respond appropriately to coworkers and supervisors but would be lim ited to occasional incidental contact with them ; could not deal with the general public; and could respond to m inor changes in the work routine. (R. at 20 ). This RFC precluded all of Bush’s past relevant work. (R. at 28). The ALJ took testim ony from a vocational expert (VE) and determ ined that Bush could perform jobs such as m achine 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 lim itations resulting from a hand fracture and subsequent surgical repair, failed to fully account for his m ental im pairm ents, erred in finding that his im pairm ents did not m eet listing 1.0 2 or listing 1.0 4, gave undue weight to the opinion of a consultative exam iner, and relied on incom plete testim ony 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 m ore than a scintilla but less than a preponderance. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 20 0 9). Even if it is possible to draw two inconsistent positions from the evidence, the Court m ust affirm if one of those positions represents the ALJ ’s findings. Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 20 15). The Court considers evidence supporting and evidence detracting from the Com m issioner’s decision, but it will not reverse sim ply because substantial evidence could support a different outcom e. Prosch v. Apfel, 20 1 F.3d 10 10 , 10 12 (8th Cir. 20 0 0 ). a. Hand Impairment Bush contends that the ALJ should have included additional m anipulative lim itations to account for a hand fracture that had been repaired. Bush correctly notes that the ALJ m ust account for all im pairm ents in the RFC, including non-severe im pairm ents. 20 C.F.R. §§ 40 4.1545(a)(2) and 416.945(a)(2). However, the m edical records in this instance do not bear out any lim itations related to Bush’s hand. Daniel Irons, M.D. conducted a consultative exam ination and found that Bush had norm al grip in both hands, could hold a pen and write, touch fingertips to palm , oppose thum bs to fingers, and pick up a coin. (R. at 588). Mark Tait, M.D. sim ilarly found that Bush had 5/ 5 grip strength bilaterally with adequate fine m otor m ovem ents, dexterity, and ability to grasp objects bilaterally. (R. at 671). Bush testified to som e lim itations with his ability to reach and grasp. (R. at 62– 64). However, there are no m edical records supporting these lim itations. The objective evidence indicates no lim itations resulting from Bush’s hand fracture, and the ALJ ’s exclusion of such lim itations is therefore supported by substantial evidence on the record as a whole. b. Mental Impairments Bush also argues that the RFC does not fully account for m ental lim itations arising from his posttraum atic stress disorder and depression. Records show that Bush reported that his m edications eased the sym ptom s of his depression. (R. at 897). Additionally, his counselors repeatedly recom m ended he seek assistance with job placem ent from Arkansas Rehabilitation Services. (R. at 886– 87, 888, 10 48). On one of these occasions, Bush cited as a reason for not seeking job placem ent that getting a job would “m ess up” his disability claim . (R. at 887). The fact that Bush’s counselors considered him able to work weighs against him , as does the reported effectiveness of m edication in controlling his depression. The ALJ incorporated several m ental lim itations into the RFC, and substantial evidence supports the adequacy of those lim itations. Bush additionally argues that his hydrocodone causes drowsiness that would prevent work. (R. at 66). However, he denied side effects to his doctor. (R. at 10 68). He also did not report side effects on his Pain and Other Sym ptom s report. (R. at 414). On his Function Report, he did not list hydrocodone as one of the m edications that causes side effects, and he did not list drowsiness as a side effect of the m edications he did list. (R. at 423). The undersigned cannot find that the ALJ erred by not including additional m ental lim itations or lim itations related to m edication side effects. c. Listings 1.02 and 1.04 Bush next m aintains that the ALJ erred in finding that his im pairm ents did not m eet either listing 1.0 2 or listing 1.0 4. A claim ant m ust show that his im pairm ent m eets all the criteria for a listing in order to prove disability under the listing. Jones v. Astrue, 619 F.3d 963, 9969 (8th Cir. 20 10 ). Bush’s im pairm ents do not m eet this standard. Bush contends that his pelvic injuries m eet listing 1.0 2. However, listing 1.0 2 requires the involvem ent of a weight-bearing joint resulting in the inability to am bulate effectively. 20 C.F.R. Part 40 4, Subpt. P, App. 1. Listing 1.0 0 B2b defines the inability to am bulate effectively as being so lim ited as to require the use of an assistive device that lim its the functioning of both upper extrem ities. Id. The record shows that Bush uses a cane. (R. at 52). However, this does not inhibit the function of both upper extrem ities. As such, Bush cannot m eet listing 1.0 2 due to his pelvic injuries. Sim ilarly, Bush cannot m eet listing 1.0 4. Listing 1.0 4(B) requires evidence of spinal arachnoiditis, and listing 1.0 4(C) requires lum bar spinal stenosis resulting in pseudoclaudication. 20 C.F.R. § Pt. 40 4, Subpt. P, App. 1. Neither of these conditions is present. Listing 1.0 4(A) requires “[e]vidence of nerve root com pression characterized by neuro-anatom ic distribution of pain, lim itation of m otion of the spine, m otor loss (atrophy with associated m uscle weakness or m uscle weakness) accom panied by sensory or reflex loss and, if there is involvem ent of the lower back, positive straight-leg raising test (sitting and supine).” Id. The record has no evidence of m otor loss, m uscle atrophy, or m uscle weakness. In fact, different exam inations show full strength in the lower extrem ities and no loss of sensation. (R. at 671, 822, 851, 860 , 938). The evidence sim ply does not support a finding that Bush m eets a listing, and the ALJ comm itted no error in finding so. d. Consultative Examiner’s Opinion Next, Bush asserts that the ALJ erred in heavily relying on the opinion of consultative exam iner Mark Tait, M.D. Dr. Tait’s report suggested that Bush had no lim itations on his ability to sit, walk, and/ or stand for a full workday, could lift/ carry without lim itations. (R. at 672). Dr. Tait also reported that it was difficult to determ ine lim itations regarding the left hip/ pelvis because no im aging was available and whether the can was m edically necessary. (R. at 672). Bush fairly characterizes Dr. Tait’s report as an outlier. Daniel Irons, M.D. found severe lim itations to walking, standing, sitting, lifting, and carrying. (R. at 589). Olabode Olum ofin, M.D., MPH opined that Bush would be “unable to gain em ploym ent.” (R. at 10 56). Regan Gallaher, M.D. stated that Bush could not sit four to six hours in an eight-hour workday, could not stand for m ore than two hours in an eight-hour workday, m ust shift from sitting to standing and walking frequently, m ust take longer breaks, and m ust have frequent breaks and be allowed to m ove about at will. (R. at 871– 72). Although Dr. Tait’s conclusions do not m esh with those of the other physicians, the ALJ did not err. Im portantly, the ALJ only granted “som e weight” to Dr. Tait’s opinion. (R. at 27). The ALJ also assigned “som e weight” to Dr. Irons’s opinion, but little weight to the opinions of Dr. Olum ofin and Dr. Gallaher. (R. at 26– 27). Clearly, however, the ALJ did not adopt Dr. Tait’s opinion wholesale. While Dr. Tait found no lim itations, the ALJ gave Bush an RFC lim iting him to less than the full range of sedentary work. Furtherm ore, although Dr. Tait’s conclusions were not in line with the other doctors’ opinions, there is nothing to call into question the objective findings of his report. A reviewing court m ay not reverse sim ply because it would have com e to a different conclusion. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 20 15). It is of no im port whether the undersigned would have weighed the sam e evidence differently, but only whether there is evidence a reasonable m ind would find adequate to support the ALJ ’s decision. Id. The ALJ ’s decision was supported by opinion evidence and the m edical record. As the ALJ did not rely heavily on the opinion of Dr. Tait, but rather gave Bush an RFC with lim itations in line with the consistent m edical evidence, the undersigned can find no error. e. Vocational Expert Testimony Finally, Bush argues that the ALJ im properly om itted the VE’s testim ony concerning subsequent hypotheticals posed by the ALJ . (R. at 74). The VE testified that a hypothetical individual with the RFC posed by the ALJ would be unable to perform any jobs existing in significant num bers in the national econom y if that individual could not sustain attention and concentration without breaks less than two hours apart or if that individual would m iss two days of work per m onth. (R. at 74). “A hypothetical question m ust precisely describe a claim ant’s im pairm ents so that the vocational expert m ay accurately assess whether jobs exist for the claim ant.” New ton v. Chater, 92 F.3d 688, 694– 95 (8th Cir. 20 0 4). However, the ALJ only needs to capture the concrete consequences of the im pairm ents, rather than using specific term inology. Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 20 0 6). A hypothetical is sufficient if it sets forth the im pairm ents that the ALJ accepts as true that are supported by substantial evidence. Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 20 0 5). In this instance, the ALJ determined that the lim itations in the second and third hypotheticals were not supported by the evidence. The ALJ ’s first hypothetical is consistent with the final RFC. As such, the ALJ was not required to include the additional lim itations in the RFC, and it was not error for the ALJ to exclude them . III. Recommended Disposition The ALJ sufficiently allowed for Bush’s hand and m ental im pairm ents, properly found that his im pairm ents did not m eet a listing, properly weighed the opinion evidence, and justifiably relied on VE testim ony. The ALJ ’s decision is supported by substantial evidence on the record as a whole and is not based on legal error. For these reasons, the undersigned m agistrate judge recom m ends AFFIRMING the decision of the Com m issioner. It is so ordered this 16 th day of May, 20 18. ________________________________ J EROME T. KEARNEY UNITED STATES MAGISTRATE J UDGE
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