United States District Court, W.D. Arkansas, Texarkana Division
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
Terry Lawrence Gill, brings this action under 42 U.S.C.
§ 405(g), seeking judicial review of a decision of the
Commissioner of Social Security Administration (Commissioner)
denying his claim for a period of disability, disability
insurance benefits (“DIB”), and supplemental
security income (“SSI”) benefits under Titles II
and XVI of the Social Security Act (hereinafter “the
Act”), 42 U.S.C. §§ 423(d)(1)(A),
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 applications for DIB and SSI on
December 31, 2014. (Tr. 10). In his applications, Plaintiff
alleged being disabled due to: arthritis, arrythmia, high
blood pressure, depression, anxiety, and myocardial
infarctions, with an alleged onset date of July 1, 2010. (Tr.
10, 251). These applications were denied initially and again
upon reconsideration. (Tr. 10). Plaintiff requested an
administrative hearing and that administrative hearing was
held on March 7, 2017. (Tr. 25-61). At this hearing,
Plaintiff was present and was represented by non-attorney
representative, Laura Lesiker. (Tr. 10, 25-61, 193).
Plaintiff and a Vocational Expert (“VE”)
testified at the hearing. (Tr. 25-61). At the
hearing, the ALJ left the record open for two weeks to allow
the submission of additional medical records and a vocational
report along with arguments regarding why they were not
submitted timely. (Tr. 60).
26, 2017, Plaintiff submitted a post-hearing memorandum and
exhibits regarding the usage of the Dictionary of
Occupational Titles and job listings. ECF No. 14-1. These
exhibits did not include the vocational report or medical
records the record had been left open for. Id. This
memorandum and the attached exhibits were expunged from the
transcript. (Tr. 332).
the hearing, on July 25, 2017, the ALJ entered an unfavorable
decision. (Tr. 719-25). In his decision, the ALJ notes the
post-hearing memorandum and attached documents. (Tr. 11, 19).
The ALJ notes both that Plaintiff failed to raise any
objections at the hearing, and that there was no good cause
argument regarding why the attached exhibits were not
presented before the hearing. (Id.). The ALJ
overruled the objections in the memorandum opinion and
declined to admit the exhibits. (Tr. 11, 19, 332).
found Plaintiff had last met the insured status requirements
of the Act on September 30, 2015. (Tr. 13, Finding 1). The
ALJ also found Plaintiff had not engaged in substantial
gainful activity since his alleged onset date. (Tr. 13,
Finding 2). The ALJ determined Plaintiff had the following
severe impairments: hypertension, lumbar spondylosis, and
arteriovenous malformation right leg. (Tr. 13-14, Finding 3).
Despite being severe, the ALJ determined those impairments
did not meet or medically equal the requirements of any of
the Listings of Impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (“Listings:”). (Tr. 14-17, Finding 4).
decision, the ALJ evaluated Plaintiff's subjective
complaints and determined his RFC. (Tr. 15-17, Finding 5).
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:
[P]erform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except he can occasionally stoop, crouch, crawl
and kneel; cannot climb ladders, ropes or scaffolds; can
occasionally climb stairs and ramps; is unable to balance on
narrow or moving surfaces, but is able to balance
occasionally on level surfaces; cannot work in proximity to
unprotected heights and dangerous moving machinery; can use
foot controls occasionally. Id.
then evaluated Plaintiff's Past Relevant Work
(“PRW”). (Tr. 17-18, Finding 6). The ALJ
determined Plaintiff was not capable of performing any of his
PRW. Id. The ALJ, however, also determined there was
other work existing in significant numbers in the national
economy Plaintiff could perform. (Tr. 18-19, 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 representative
occupations such as a router with approximately 75, 154 such
jobs in the nation, a housekeeping cleaner, with
approximately 248, 672 such jobs in the nation, or a price
marker with approximately 463, 159 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, from his onset date of July 1, 2010, through the date of
this decision. (Tr. 19, Finding 11).
Plaintiff requested the Appeals Council's review of the
ALJ's decision. (Tr. 195-96). The Appeals Council denied
this request for review. (Tr. 1-4). On June 4, 2018,
Plaintiff filed the present appeal. ECF No. 1. Both Parties
have filed appeal briefs, and Plaintiff filed an additional
reply brief. ECF Nos. 14, 19, 22. This case is now ready for
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. §§