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Dillard v. Berryhill

United States District Court, E.D. Arkansas, Eastern Division

October 18, 2018

NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security DEFENDANT


         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge D. P. Marshall, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objections; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         I. Introduction

         Plaintiff, Lee Twan Dillard (“Dillard”), initially applied for disability and supplemental security income benefits on June 27, 2007, alleging an onset date of April 1, 2007. (Tr. at 16, 110-113). After conducting a hearing, the Administrative Law Judge (“ALJ”) denied the application on October 20, 2009. (Tr. at 16-30).

         Dillard appealed to the Social Security Appeals Council (“Appeals Council”). (Tr. at 11). On March 1, 2010, while his administrative appeal was still pending, he filed a second application for disability and supplemental security income benefits. (Tr. at 738-748).

         On June 30, 2011, the Appeals Council denied Dillard's appeal of the ALJ's October 20, 2009 decision. (Tr. at 1). On August 25, 2011, Dillard filed an appeal to this Court challenging the ALJ's now final decision. Dillard v. Astrue, No. 2:11CV00150-JTR (E.D. Ark., Aug. 27, 2012).

         On October 24, 2011, the same ALJ who denied Dillard's first application for benefits entered a decision denying benefits on Dillard's second application. (Tr. at 522). Dillard requested review by the Appeals Council. (Tr. at 520).

         On August 27, 2012, the Court entered an order reversing and remanding the ALJ's October 20, 2009 decision because he failed to consider the medical opinion of Dr. Ahilesh Rao. (Tr. at 178, 476). The Court noted that the last page of Dr. Rao's report, which imposed significant limitations on Dillard's ability to walk and lift, was included but misfiled in the record at page 178. In his decision, the ALJ had erroneously stated that, because this page was missing from the record, it prevented him from considering Dr. Rao's medical opinion. (Tr. at 476).

         On December 13, 2012, the Appeals Council combined Dillard's two applications for benefits and remanded the consolidated case, in its entirety, for a third administrative hearing. (Tr. at 520-524). The Appeals Council found that the ALJ had erred, in denying Dillard's second application for benefits, by failing to consider Dr. Lee Waddy's assignment of moderate limitations on Dillard's ability to stand and walk. (Tr. at 535). Thus, both this Court and the Appeals Council took issue with the ALJs' failure to assess functional limitations contained in medical source statements in both of Dillard's pending applications for benefits.

         After conducting a third administrative hearing, in July 2013, the same ALJ again found Dillard was not disabled, (Tr. at 554), and issued two virtually identical opinions, dated August 16, 2013 (Tr. at 537) and September 11, 2013 (Tr. At 555). [1] In those decisions, the ALJ considered the medical opinions of Dr. Rao and Dr. Waddy, both of whom assigned moderate physical limitations (Tr. At 552), [2] and concluded that Dillard: (1) could perform work at the sedentary level (with certain postural limitations); and (2) could understand, remember, and carry out simple instructions. (Tr. at 533, 550). Dillard sought relief from the Appeals Council.

         On November 9, 2015, the Appeals Council remanded the consolidated action because: (1) the ALJ did not combine both of Dillard's applications, as it had ordered him to do; (2) the same ALJ had heard and rejected all of Dillard's applications for benefits; and (3) the ALJ had not considered Dillard's request to postpone the third administrative hearing. (Tr. at 571).

         On June 28, 2016, a new ALJ conducted a fourth administrative hearing on Dillard's consolidated applications for benefits. (Tr. at 405). In a decision dated July 27, 2016, the ALJ found that, based on Dillard's deteriorating medical conditions over the relevant time-period, he was now disabled, as of October 26, 2015. (Tr. At 405-418). [3]

         Dillard has appealed the Commissioner's decision to this Court, where he argues that the ALJ erred in finding that he was not disabled earlier than the disability onset date of October 26, 2015. [4]

         For the reasons explained below, the Court recommends that the ALJ's decision be reversed and remanded for further review.

         II. Discussion

         In his decision, the ALJ found that: (1) Dillard had not engaged in substantial gainful activity since the date he alleged he became disabled, April 1, 2007 (Tr. at 405, 407); (2) Prior to October 26, 2015 (the date the ALJ held that Dillard's disability began), his severe impairments included degenerative disc disease of the cervical and lumbar spine, degenerative joint disease in the knees, chest pain, and major depressive disorder, Id.; (3) Prior to October 26, 2015, Dillard's impairments did not meet or equal a listed impairment, (Tr. at 408); and (4) Prior to October 26, 2015, Dillard had the residual functional capacity ("RFC") to perform a limited range of sedentary work, that was subject to the following restrictions: He could only occasionally stoop, crouch, crawl, kneel, or balance; He must avoid exposure to respiratory irritants, Id.; He would require the use of a cane in his dominant upper extremity to ambulate away from his workstation, Id.; He could perform work where interpersonal contact was incidental to the work performed, Id.; and, He could perform work where the complexity of tasks could be learned by demonstration or repetition within 30 days, the tasks contain few variables and require little judgment, and the supervision required would be simple, direct, and concrete. Id.

         Based on Dillard's RFC, the ALJ concluded that he could not perform his past relevant work. (Tr. at 417). However, relying upon the testimony of a Vocational Expert (“VE”), the ALJ found that, before October 26, 2015, Dillard's age, education, work experience and RFC allowed him to perform other jobs that existed in significant numbers in the national economy, including positions as a circuit board assembler and ...

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