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Turner v. Berryhill

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

May 16, 2017

GRADY F. TURNER PLAINTIFF
v.
NANCY A. BERRYHILL Acting Commissioner, Social Security Administration[1] DEFENDANT

          MEMORANDUM OPINION

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE

         Grady F. Turner (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of the Social Security Administration (“SSA”) denying his claim for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act (“The Act”).

         The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. (ECF No. 5).[2] Pursuant to this authority, the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.

         I. Background:

         Plaintiff protectively filed his disability application for DIB on October 14, 2011. (ECF No. II, pp. 14, 173). In his application, Plaintiff alleges being disabled due to amputation of his right leg below the knee. (ECF No. 11, p. 195). Plaintiff alleges an onset date of September 14, 2008. (ECF No. 11, p. 14, 173). This application was denied initially and again upon reconsideration. (ECF No. 11, pp. 69-71).

         Thereafter, Plaintiff requested an administrative hearing on his denied applications, and this hearing request was granted. (ECF No. 11, pp. 82-85). After this hearing, on January 31, 2013, the ALJ entered an unfavorable decision denying Plaintiff's application for DIB. (ECF No. 11, pp. 11-21). Plaintiff subsequently filed an appeal with this Court. Turner v. Colvin, No. 2:14-cv-2011, 2014 WL 7069264 (W.D. Ark. 2014). The January 31, 2013, decision of the ALJ was reversed and remanded for failure to properly analyze Plaintiff's subjective complaints in accordance with the requirements of Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). Id.

         Plaintiff's second administrative hearing was held on November 3, 2015, in Fort Smith, Arkansas. (ECF No. 11, pp. 578-619). Plaintiff was present and was represented by Matthew Ketcham. Id. Plaintiff and VE Larry Seifert testified at this hearing. Id. At the time of this hearing, Plaintiff was forty-nine (49) years old, which is defined as a “younger person” under 20 C.F.R. § 404.1563(c). (ECF No. 11, p. 581). As for his level of education, Plaintiff earned a high school diploma. Id.

         After this hearing, on March 1, 2016, the ALJ entered an unfavorable decision denying Plaintiff's application for DIB. (ECF No. 11, pp. 543-60). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act through September 30, 2011. (ECF No. 11, p. 548, Finding 1). The ALJ found Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since September 14, 2008, his alleged onset date, through his date last insured. (ECF No. 11, p. 548, Finding 2). The ALJ determined Plaintiff had the following severe impairments: amputation of the right leg below the knee and degenerative disc disease. (ECF No. 11, pp. 549, Finding 3). Despite being severe, the ALJ determined these impairments did not meet or medically equal the requirements of any of the Listings of Impairments in Appendix 1 to Subpart P of Part 404 (“Listings”). (ECF No. 11, pp. 549-52, Finding 4).

         The ALJ then considered Plaintiff's Residual Functional Capacity (“RFC”). (ECF No. 11, pp. 552-58, 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:

sedentary work as defined in 20 CFR 404.1567(a) except that he cannot climb ladders, ropes and scaffolds. He cannot work near unprotected heights and cannot operate foot controls on the right side. The claimant can occasionally climb stairs and ramps, balance, crawl, kneel, stoop and crouch. A cane is required to ambulate.

Id.

         The ALJ then determined Plaintiff was unable to perform any Past Relevant Work (“PRW”). (ECF No. 11, p. 558, Finding 6). The VE testified at the administrative hearing regarding this issue. (ECF No. 11, pp. 615-18). Based on Plaintiff's age, education, work experience, and RFC, the ALJ determined there were jobs existing in significant numbers in the national economy Plaintiff could perform, such as a radio dispatcher, which has a DOT code of 379.362-010, with approximately twenty-six thousand seven hundred eighty-one (26, 781) jobs in the national economy and approximately three hundred fifty (350) jobs in the state of Arkansas, as an information clerk, which has a DOT code of 237.367-022, with approximately ninety thousand eight hundred forty (90, 840) jobs in the national economy and approximately seven hundred ten (710) jobs in the state of Arkansas, and as a statistical clerk, which has a DOT code of 216.382-062, with approximately nineteen thousand nine hundred eight (19, 908) jobs in the national economy and approximately five hundred forty-five (545) jobs in the state of Arkansas. (ECF No. 11, pp. 558-59, Finding 10). Because jobs exist in significant numbers in the national economy which Plaintiff can perform, the ALJ also determined Plaintiff had not been under a disability, as defined by the Act, from September 14, 2008, through September 30, 2011, the date last insured. (ECF No. 11, p. 559, Finding 11).

         On May 6, 2016, Plaintiff filed the present appeal with this Court. (ECF No. 1). The Parties consented to the jurisdiction of this Court on May 9, 2016. (ECF No. 5). This case is now ready for decision.

         2. Ap ...


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