United States District Court, E.D. Arkansas, Eastern Division
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.
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).
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).
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).
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).
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).
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
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).  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),
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.
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).
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). 
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. 
reasons explained below, the Court recommends that the
ALJ's decision be reversed and remanded for further
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.
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 ...