United States District Court, W.D. Arkansas, Texarkana Division
FREDDIE DON HOWARD JR. PLAINTIFF
NANCY A. BERRYHILL Acting Commissioner, Social Security Administration DEFENDANT
BARRY A. BRYANT, U.S. MAGISTRATE JUDGE
Don Howard Jr., (“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 Supplemental
Security Income (“SSI”) under Title XVI of the
Parties have consented to the jurisdiction of a magistrate
judge to conduct any and all proceedings in this case,
including conducting the trial, ordering the entry of a final
judgment, and conducting all post-judgment proceedings. ECF
No. 5. Pursuant to this authority, the Court issues this
memorandum opinion and orders the entry of a final judgment
in this matter.
protectively filed his application for SSI on March 30, 2015.
(Tr. 11). In this application, Plaintiff alleges being
disabled due to due to a neck, back, and groin injury,
vascular disorder, venous stasis insufficiency, superficial
blood clots, high blood pressure, and mental issues. (Tr.
190). This application was denied initially and again upon
reconsideration. (Tr. 11). Thereafter, Plaintiff requested an
administrative hearing, and that hearing request was granted.
administrative hearing was held on April 25, 2017. (Tr.
50-79). At this hearing, Plaintiff was present and was
represented by counsel, Greg Giles. Id. Plaintiff
and Vocational Expert (“VE”) Lenora Maatouk
testified at the hearing. Id. At the time of the
hearing, Plaintiff was fifty-two (52) years old and had a
GED. (Tr. 55, 57).
the hearing, on July 24, 2017, the ALJ entered an unfavorable
decision denying Plaintiff's application for SSI. (Tr.
11-23). In this decision, the ALJ found Plaintiff had not
engaged in Substantial Gainful Activity (“SGA”)
since March 30, 2015. (Tr. 13, Finding 1). The ALJ also found
Plaintiff had the following severe impairments:
osteoarthritis, peripheral vascular disease, chronic
obstructive pulmonary disease (COPD), and obesity. (Tr. 13,
Finding 2). 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.
16, Finding 3).
decision, the ALJ evaluated Plaintiff's subjective
complaints and determined his RFC. (Tr. 17-21, Finding 4).
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 light work except could
only occasionally balance, stoop, kneel, crouch, crawl, and
climb stairs and ramps; could never climb ladders, ropes, and
scaffolds; must avoid even moderate exposure to dusts, fumes,
gases, odors, and other pulmonary irritants; and may require
a cane for ambulation. Id.
then evaluated Plaintiff's Past Relevant Work
(“PRW”). (Tr. 21, Finding 5). The ALJ determined
Plaintiff was not capable of performing any PRW. Id.
The ALJ, however, also determined there was other work
existing in significant numbers in the national economy
Plaintiff could perform. (Tr. 22, Finding 9). 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 representative occupations
such as price marker with approximately 304, 341 such jobs in
the nation, cashier II with approximately 861, 570 such jobs
in the nation, and hotel housekeeper with approximately 134,
955 such jobs in the nation. Id. Based upon this
finding, the ALJ determined Plaintiff had not been under a
disability, as defined in the Act, since March 30, 2015. (Tr.
23, Finding 10).
Plaintiff requested the Appeals Council's review of the
ALJ's decision. (Tr. 171-173). The Appeals Council denied
this request for review. (Tr. 1-5). On June 19, 2018,
Plaintiff filed the present appeal. ECF No. 1. Both Parties
have filed appeal briefs. ECF Nos. 12, 13. This case is now
ready for decision.
well-established that a claimant for Social Security
disability benefits has the burden of proving his or her
disability by establishing a physical or mental disability
that lasted at least one year and that prevents him or her
from engaging in any substantial gainful activity. See
Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act
defines a “physical or mental impairment” as
“an impairment that results from anatomical,
physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§
423(d)(3), 1382(3)(c). A plaintiff must show that his or her
disability, not simply his or her impairment, has lasted for
at least twelve consecutive months. See 42 U.S.C.
determine whether the adult claimant suffers from a
disability, the Commissioner uses the familiar five-step
sequential evaluation. He determines: (1) whether the
claimant is presently engaged in a “substantial gainful
activity”; (2) whether the claimant has a severe
impairment that significantly limits the claimant's
physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or
equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard
to age, education, and work experience); (4) whether the
claimant has the Residual Functional Capacity (RFC) to
perform his or her past relevant work; and (5) if the
claimant cannot perform the past work, the burden shifts to
the Commissioner to prove that there are other jobs in the
national economy that the claimant can perform. See
Cox, 160 F.3d at 1206; 20 C.F.R. §§
404.1520(a)-(f). The fact finder only considers the
plaintiff's age, education, and work experience in light
of his or her RFC if the final stage of this analysis is
reached. See 20 C.F.R. §§ 404.1520,