United States District Court, W.D. Arkansas, Fort Smith Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT, U.S. MAGISTRATE JUDGE
Earl Mashburn (“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”), 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 of counsel, this Court recommends
Plaintiff's case be REVERSED AND
protectively filed his disability applications on October 12,
2011. (Tr. 461-474).In his applications, Plaintiff alleged he
was disabled due to being illiterate and right-hand damage.
(Tr. 550). Plaintiff alleged an onset date of April 30, 2010.
applications were denied initially and upon reconsideration.
Following this, Plaintiff requested a hearing, which was held
on July 24, 2012. (Tr. 90-110). Plaintiff, who was
represented by a non-attorney, appeared and testified at the
hearing. Id. On August 17, 2012, the ALJ issued a
fully favorable decision, finding Plaintiff was disabled as
of April 30, 2010. (Tr. 180-187). The Appeals Council
reviewed the ALJ decision and remanded the case on May 6,
2013. (Tr. 203-207).
had a second hearing on October 1, 2013. (Tr. 111-150). On
May 16, 2014, the ALJ issued an unfavorable decision denying
benefits to Plaintiff. (Tr. 211-222). Plaintiff requested
Appeals Council review, which was granted and the matter was
remanded to the ALJ on August 27, 2015. (Tr. 229).
on January 11, 2016, Plaintiff had a third administrative
hearing. (Tr. 151-170). Plaintiff was present at this hearing
and was represented by non-attorney representative.
Id. Plaintiff and Vocational Expert
(“VE”) Debra Steele testified at this hearing.
February 9, 2016, the ALJ entered a partially favorable
decision. (Tr. 22-35). In this decision, the ALJ determined
Plaintiff met the insured status requirements of the Act
through December 31, 2016. (Tr. 25, Finding 1). The ALJ also
determined Plaintiff had not engaged in Substantial Gainful
Activity (“SGA”) since September 28, 2010, his
amended alleged onset date. (Tr. 25, Finding 2).
determined Plaintiff had the following severe impairments:
degenerative disc disease, history of right wrist fracture,
cataracts with mild decreased visual acuity, depressive
disorder, poly-substance abuse in partial remission, a verbal
learning disorder, and an antisocial personality disorder
traits disorder. (Tr. 26, Finding 3). Despite being severe,
the ALJ determined Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one
of the Listings in 20 CFR Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926). (Tr. 26, Finding 4).
then evaluated the credibility of Plaintiff's subjective
complaints and determined his Residual Functional Capacity
(“RFC”). (Tr. 28-32, Finding 5). First, the ALJ
evaluated Plaintiff's subjective complaints and found
they were not entirely credible. Id. Second, the ALJ
found Plaintiff retained the RFC to perform light work,
except can read and write simple words and phrases; cannot
perform work that requires reading print any smaller than
newspaper size; can perform frequent fingering and handling
on the dominant side; limited to simple, routine, and
repetitive tasks in a setting where interpersonal contact is
incidental to the work performed; and can respond to
supervision that is simple, direct, and concrete.
then evaluated Plaintiff's Past Relevant Work
(“PRW”). (Tr. 32, Finding 6). The ALJ found
Plaintiff was unable to perform his PRW. Id. The
ALJ, however, also determined there was other work existing
in significant numbers in the national economy Plaintiff
could perform prior to September 28, 2015. (Tr. 33, Finding
10). The ALJ based this determination upon the testimony of
the VE. Id. Specifically, the VE testified that
given all Plaintiff's vocational factors, a hypothetical
individual would be able to perform the requirements of a
representative occupation such as air purifier servicer with
2, 400 such jobs in Arkansas and 229, 560 such jobs in the
nation, housekeeper with 2, 570 such jobs in Arkansas and
427, 885 such jobs in the nation, and power screwdriver
operator with 220 such jobs in Arkansas and 19, 470 such jobs
in the nation. Id. However, the ALJ also found
Plaintiff was disabled under the medical-vocational
guidelines (the grid) beginning September 28, 2015. (Tr. 34,
October 17, 2016, Plaintiff filed the present appeal. ECF No.
1. Both Parties have filed appeal briefs. ECF Nos. 12, 15.
This case is now ready for decision.