Gill v. Saul

          MEMORANDUM OPINION

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

         Plaintiff, 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), 1382c(a)(3)(A).

         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.

         1. Background:

         Plaintiff protectively filed his applications for DIB and SSI on December 31, 2014. (Tr. 10)^[2]. 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).

         On May 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).

         Following 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).

         The ALJ 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).

         In this 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.

         The ALJ 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).

         Thereafter, 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 decision.

         2. Applicable Law:

         It is 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. §§ ...