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McGinister v. Colvin

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

December 16, 2014

TERRY McGINISTER, JR., Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

BARRY A. BRYANT, Magistrate Judge.

Terry McGinister, Jr. ("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 application for a period of disability and Disability Insurance Benefits ("DIB") under Title II of the Act.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable P. K. Holmes, III referred this case to this Court for the purpose of making a report and recommendation. In accordance with that referral, and after reviewing the arguments in this case, this Court recommends Plaintiff's case be AFFIRMED.

1. Background:

Plaintiff protectively filed his application for disability benefits on June 18, 2012. (Tr. 9, 164-172). Plaintiff alleges being disabled due to a bulging disc, post-traumatic stress disorder ("PTSD"), migraines, frost bite on both hands, and problems with both feet. (Tr. 241). Plaintiff alleges an onset date of April 15, 2009. (Tr. 9). This application was denied initially and again upon reconsideration. (Tr. 83, 99).

Thereafter, Plaintiff requested an administrative hearing on his application, and this hearing request was granted. (Tr. 124-133). Plaintiff's administrative hearing was held on April 22, 2013 in Fort Smith, Arkansas. (Tr. 28-82). At this hearing, Plaintiff was present and was represented by counsel, Susan Brockett. Id. At this hearing, Plaintiff and Vocational Expert ("VE") John Massey testified. Id. Plaintiff testified he was twenty-five (25) years old, which is defined as a "younger person" under 20 C.F.R. § 404.1563(c) (2008). (Tr. 33-34).

On August 2, 2013, the ALJ entered an unfavorable decision denying Plaintiff's application for DIB. (Tr. 6-23). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2016. (Tr. 11, Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful Activity ("SGA") since December 27, 2011, his amended alleged onset date. (Tr. 11, Finding 2). The ALJ determined Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, headaches, hypertension, bilateral plantar fasciitis and flat feet, history of frostbite to his hands (left greater than right), and PTSD. (Tr. 11-12, Finding 3). The ALJ determined Plaintiff's impairments, however, 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. 12-14, Finding 4).

In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined his RFC. (Tr. 14-21, 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 light work as defined in 20 CFR 404.1567(b) except he can only occasionally climb ramps and stairs, he can never climb ladders, ropes, or scaffolds, and he can only occasionally balance, stoop, kneel, crouch and crawl. He can only occasionally work/reach overhead, he can frequently, but not constantly, handle bilaterally, and he must avoid concentrated exposure to extreme cold and hazards, including no driving as part of work. He is further limited and is able to perform work where interpersonal contact is incidental to the work performed, the complexity of tasks is learned and performed by rote with few variables and little use of judgment, and the supervision required is simple, direct and concrete.

(Tr. 14-21, Finding 5).

The ALJ evaluated Plaintiff's Past Relevant Work ("PRW") and determined Plaintiff was unable to perform any of his PRW. (Tr. 21-22, Finding 6). The ALJ determined Plaintiff had at least a high school education and was able to communicate in English. (Tr. 22, Finding 8).

The ALJ then determined whether Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy. (Tr. 22-23, Finding 10). The VE testified at the administrative hearing regarding this issue. (Tr. 22-23). Specifically, considering Plaintiff's RFC, work experience, age, and education, the VE testified Plaintiff retained the capacity to perform work as a routing clerk and conveyor belt package sorter (light, unskilled) with 340 such jobs in Arkansas and 42, 500 such jobs in the nation and as a production worker (light, unskilled) with 480 such jobs in Arkansas and 59, 000 such jobs in the national economy. Id. 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 December 27, 2011 through the date of his decision or through August 2, 2013. (Tr. 23, Finding 11).

Thereafter, Plaintiff requested the Appeals Council's review of the ALJ's unfavorable decision. (Tr. 4-8). On August 15, 2013, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (Tr. 1-3). On October 15, 2013, Plaintiff filed the present appeal. ECF No. 1. Both Parties ...


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