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Osborne v. Berryhill

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

February 5, 2018

SAMUEL A. OSBORNE PLAINTIFF
v.
NANCY A. BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

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

         Samuel A. Osborne (“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 applications for Disability Insurance Benefits (“DIB”), Supplemental Security Income (“SSI”), and a period of disability under Titles II and XVI 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.

         1. Background:

         Plaintiff protectively filed his disability applications on August 25, 2011. (Tr. 18). In these applications, Plaintiff alleges being disabled due to degenerative disc disease, moderate joint disease, canal stenosis, OCD, hypertension, anxiety, depression, and disc protrusions. (Tr. 229). Plaintiff alleged an onset date of May 1, 2011. (Tr. 18). These applications were denied initially and again upon reconsideration. (Tr. 18, 101-109, 114-119).

         Plaintiff requested an administrative hearing on his denied applications, and this hearing request was granted. (Tr. 125, 55-94). After this administrative hearing, the ALJ entered an unfavorable decision denying Plaintiff's disability applications. (Tr. 18-30). Subsequent to this decision, Plaintiff appealed this unfavorable decision to the Court, and the Court reversed and remanded Plaintiff's case for further administrative review and consideration of Plaintiff's subjective complaints. See Osborne v. SSA, 2:15-cv-02053-PKH (W.D. Ark. Dec. 23, 2015).

         Thereafter, the ALJ held a second administrative hearing. (Tr. 782-810). Plaintiff's administrative hearing was held on September 15, 2016 in Fort Smith, Arkansas. Id. At this hearing, Plaintiff was present and was represented by Davis Duty. Id. Plaintiff and Vocational Expert (“VE”) Jim Spraggins testified at this hearing. Id.

         On October 31, 2016, the ALJ again entered an unfavorable decision denying Plaintiff's applications. (Tr. 714-724). In this decision, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2017. (Tr. 719, Finding 1). The ALJ determined Plaintiff had not engaged in Substantial Gainful Activity (“SGA”) since February 29, 2012 (his alleged onset date). (Tr. 719, Finding 2).

         The ALJ found Plaintiff had the following severe impairments: hypertension, non-insulin dependent diabetes mellitus with peripheral neuropathy; degenerative disc disease of the cervical spine; degenerative disc disease of the lumbar spine at the L3-4, L4-5, and L5-S1 levels; major depression; and anxiety. (Tr. 719, 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. 720-721, Finding 4).

         In this decision, the ALJ evaluated Plaintiff's subjective complaints and determined his RFC. (Tr. 721-723, 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 4040.1567(b) and 416.967(b) except occasional bending, stooping, and squatting; would need a job involving simple tasks, simple instructions, and limited contact with the public.

Id.

         The ALJ evaluated Plaintiff's Past Relevant Work (“PRW”). (Tr. 723, Finding 6). Specifically, the ALJ determined Plaintiff was unable to perform any of his PRW. Id. The ALJ then determined whether Plaintiff retained the capacity to perform other work existing in significant numbers in the national economy. (Tr. 723-724). The VE testified at the administrative hearing regarding this issue. Id.

         Specifically, the VE testified Plaintiff retained the capacity to perform occupations such as price marker with 496, 000 such jobs in the nation; fast food worker with 2, 000, 000 such jobs in the nation; and cashier II with 200, 000 such jobs in the nation. Id. Based upon this finding, the ALJ determined Plaintiff had not been under a disability (as defined by the Act) from February 29, 2012 through the date of his decision or through November 3, 2016. (Tr. 724, Finding 11). Thereafter, on February 14, 2017, ...


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