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Mashburn v. Berryhill

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

March 4, 2018

JAMES EARL MASHBURN PLAINTIFF
v.
NANCY A. BERRYHILL Commissioner, Social Security Administration DEFENDANT

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

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

         James 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.

         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 of counsel, this Court recommends Plaintiff's case be REVERSED AND REMANDED.

         1. Background:

         Plaintiff protectively filed his disability applications on October 12, 2011. (Tr. 461-474).[1]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. (Tr. 461).

         Plaintiff's 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).

         Plaintiff 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).

         Thereafter, 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. Id.

         On 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).

         The ALJ 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).

         The ALJ 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. Id.

         The ALJ 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, Finding 12).

         On 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.

         2. Ap ...


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