United States District Court, W.D. Arkansas, Fort Smith Division
SAMUEL A. OSBORNE PLAINTIFF
NANCY A. BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT, U.S. MAGISTRATE JUDGE.
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.
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
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).
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).
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.
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,
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).
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
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
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, ...