United States District Court, W.D. Arkansas, Fort Smith Division
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BARRY A. BRYANT, Magistrate Judge.
Philip Robert Maag ("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 Disability Insurance Benefits ("DIB") and a period of disability 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 REVERSED AND REMANDED.
Plaintiff protectively filed his disability application on November 3, 2011. (Tr. 25). In his application, Plaintiff alleges being disabled due to a back injury and depression. (Tr. 155). Plaintiff alleges an onset date of January 15, 2009. (Tr. 25). This application was denied initially and again upon reconsideration. (Tr. 70-72).
Thereafter, Plaintiff requested an administrative hearing on his application, and this hearing request was granted. (Tr. 85-96). Plaintiff's administrative hearing was held on October 26, 2012 in Russellville, Arkansas. (Tr. 36-69). At this hearing, Plaintiff was present and was represented by counsel, Iva Gibbons. Id. Plaintiff and Vocational Expert ("VE") testified at this hearing. Id. During this hearing, Plaintiff testified he was forty-four (44) years old, which is defined as a "younger person" under 20 C.F.R. § 404.1563(c) (2008). (Tr. 42). As for his education, Plaintiff testified he had completed the twelfth grade in school. Id.
On December 10, 2012, the ALJ entered an unfavorable decision denying Plaintiff's application. (Tr. 22-31). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act through March 31, 2013. (Tr. 27, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity ("SGA") since January 15, 2009, his alleged onset date. (Tr. 27, Finding 2). The ALJ found Plaintiff had the following severe impairments: chronic lower back pain and status post laminectomy and fusion at the L4-L5 and L5-S1 levels. (Tr. 27, Finding 3). Despite being severe, the ALJ determined those impairments 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. 27, Finding 4).
In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined his RFC. (Tr. 27-30, 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 sedentary work as defined in 20 CFR 404.1567(a) except that he can only occasionally stoop, squat and bend.
Id. "Sedentary work" is defined as follows:
(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a) (2012).
The ALJ then evaluated Plaintiff's Past Relevant Work ("PRW"). (Tr. 30, Finding 6). The ALJ found Plaintiff's PRW included work as a telephone solicitor. Id. Considering his RFC, the ALJ determined Plaintiff retained the capacity to perform this PRW as a telephone solicitor. Id. Because Plaintiff retained the capacity to perform this PRW, the ALJ also determined Plaintiff had not been under a disability, as defined by the Act, from his alleged onset date of January 15, 2009 through the date of the ALJ's decision or through December 10, 2012. (Tr. 31, Finding 7).
Thereafter, Plaintiff requested the Appeals Council's review of the ALJ's unfavorable decision. (Tr. 20). On April 18, 2014, the Appeals Council denied this request for review. (Tr. 1-4). On June 13, 2014, Plaintiff filed the present appeal. ECF No. 1. Both Parties have ...