United States District Court, W.D. Arkansas, Hot Springs Division
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
Edna Goodman, 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 her applications for DIB and SSI on
February 13, 2015. (Tr. 149). In his applications, Plaintiff
alleged being disabled due to fibromyalgia, depression, and
arthritis, with an alleged onset date of January 1, 2015.
(Tr. 149, 420). These applications were denied initially and
again upon reconsideration. (Tr. 149). Plaintiff requested an
administrative hearing and that administrative hearing was
held on August 25, 2016. (Tr. 166-221). Two days prior to the
hearing, Plaintiff submitted a pre-hearing memorandum in
which she reported she was still waiting for some medical
records she had requested, and requested the record be left
open 30 days post-hearing to allow for the submission of a
post-hearing argument regarding vocational issues. (Tr. 495).
At the hearing, Plaintiff was present and was represented by
attorney Christopher Hart. (Tr. 149, 166-221).
Plaintiff, Plaintiff’s witness, and a Vocational Expert
(“VE”) testified at the hearing. Id. At
the hearing, the ALJ acknowledged Plaintiff’s request
that the record be left open for 30 days and granted that
request. (Tr. 169). The ALJ did not specify that the record
would be left open only for medical records. (Tr. 166-221).
September 26, 2016, 32 days after the hearing, Plaintiff
submitted a post-hearing memorandum objecting to both the
qualifications and testimony of vocational expert Elizabeth
Clem, and submitted evidence supporting her argument,
including the resume and opinion of another vocational
expert, Paula Santagati. (Tr. 497-526).
the hearing, on November 18, 2016, the ALJ entered an
unfavorable decision. (Tr. 146-65). In his decision, the ALJ
notes the post-hearing memorandum and attached documents.
(Tr. 149). The ALJ noted both that Plaintiff failed to raise
her objections at or before the hearing, and held they were
therefore waived and, alternatively overruled them for being
without merit. Id.
found Plaintiff met the insured status requirements of the
Act through September 30, 2019. (Tr. 151, Finding 1). The ALJ
also found Plaintiff had not engaged in substantial gainful
activity since her alleged onset date. (Tr. 151, Finding 2).
The ALJ determined Plaintiff had the following severe
impairments: degenerative disc disease, degenerative joint
disease, affective disorder, anxiety disorder, and marijuana
abuse. (Tr. 151-52, 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. 153-54, Finding 4).
decision, the ALJ evaluated Plaintiff’s subjective
complaints and determined her RFC. (Tr. 154-58, Finding 5).
First, the ALJ evaluated Plaintiff’s subjective
complaints and found her 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 she can lift and carry twenty pounds
occasionally and ten pounds frequently. She can stand and
walk for six hours in an eight-hour day for one-to-two hours
at a time without interruptions. She can sit for six hours in
an eight-hour day. She can occasionally climb, stoop, kneel,
crouch, and crawl. She is limited to unskilled rote
activities. She can understand, remember, and follow concrete
instructions. She can have superficial contact with coworkers
and the public. Id.
then evaluated Plaintiff’s Past Relevant Work
(“PRW”). (Tr. 158, Finding 6). The ALJ determined
Plaintiff was not capable of performing any of her PRW.
Id. The ALJ, however, also determined there was
other work existing in significant numbers in the national
economy Plaintiff could perform. (Tr. 159-60, Finding 10).
The ALJ based this determination upon the testimony of the VE
at the administrative hearing. 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
cashier II with approximately 1,600,000 such jobs in the
nation, or an assembler with approximately 200,000 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 her onset date of January 1, 2015,
through the date of his decision. (Tr. 160, Finding 11).
Plaintiff requested the Appeals Council’s review of the
ALJ’s decision. (Tr. 384-85). The Appeals Council
denied this request for review. (Tr. 1-4). On March 9, 2018,
Plaintiff filed the present appeal. ECF No. 1. Both Parties
have filed appeal briefs, and Plaintiff filed an additional
reply brief. ECF Nos. 12, 15, 16. 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. §§