The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
KARA R. MORGAN PLAINTIFF
v. CIVIL NO. 20-5198
KILOLO KIJAKAZI,1 Acting Commissioner
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Social Security Administration DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Kara R. Morgan, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and XVI
of the Social Security Act (Act). In this judicial review, the Court must determine whether there
is substantial evidence in the administrative record to support the Commissioner's decision. See
42 U.S.C. § 405(g).
I. Procedural Background:
Plaintiff protectively filed her current applications for DIB and SSI on August 22, 2018,
alleging an inability to work since July 12, 2016,2 due to several bilateral hand surgeries, a history
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of a broken neck, depression, and anxiety. (Tr. 146, 232, 234, 242). An administrative hearing
was held on January 30, 2020, at which Plaintiff appeared with counsel and testified. (Tr. 67-93).
1 Kilolo Kijakazi, has been appointed to serve as Acting Commissioner of Social Security, and is substituted as Defendant,
pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
2 Plaintiff, through her counsel, amended her alleged onset date to May 21, 2017. (Tr. 71).
By written decision dated June 3, 2020, the ALJ found that during the relevant time period,
Plaintiff had an impairment or combination of impairments that were severe. (Tr. 20). Specifically,
the ALJ found Plaintiff had the following severe impairments: bilateral wrist osteoarthritis.
However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff’s
impairments did not meet or equal the level of severity of any impairment listed in the Listing of
Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 21). The ALJ found Plaintiff
retained the residual functional capacity (RFC) to:
perform the full range of light work as defined in 20 CFR 404.1567(b) and
416.967(b).
(Tr. 21). With the help of a vocational expert, the ALJ determined Plaintiff could perform her past
relevant work as a legal secretary. (Tr. 27).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on September 16, 2020. (Tr. 1-6). Subsequently, Plaintiff filed this action.
(ECF No. 2). Both parties have filed appeal briefs, and the case is before the undersigned for report
and recommendation. (ECF Nos. 15, 16).
II. Applicable Law:
The Court reviews “the ALJ’s decision to deny disability insurance benefits de novo to
ensure that there was no legal error that the findings of fact are supported by substantial evidence
on the record as a whole.” Brown v. Colvin, 825 F. 3d 936, 939 (8th Cir. 2016). Substantial
evidence is less than a preponderance but it is enough that a reasonable mind would find it adequate
to support the Commissioner’s decision. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). The
Court must affirm the ALJ’s decision if the record contains substantial evidence to support it.
Lawson v. Colvin, 807 F.3d 962, 964 (8th Cir. 2015). As long as there is substantial evidence in
the record that supports the Commissioner’s decision, the Court may not reverse it simply because
substantial evidence exists in the record that would have supported a contrary outcome, or because
the Court would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir.
2015). In other words, if after reviewing the record it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the findings of the ALJ, we must affirm
the ALJ’s decision. Id.
It is well established that a claimant for Social Security disability benefits has the burden
of proving her disability by establishing a physical or mental impairment that has lasted at least
one year and that prevents her from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. § 423(d)(1)(A). The Act
defines “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). A Plaintiff must show that
her disability, not simply her impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given her age, education, and experience. See 20 C.F.R. §§ 404.1520, 416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th
Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20
C.F.R. §§ 404.1520, 416.920.
III. Discussion:
Of particular concern to the undersigned is the ALJ’s RFC determination. RFC is the most
a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). It is assessed using
all relevant evidence in the record. Id. This includes medical records, observations of treating
physicians and others, and the claimant’s own descriptions of her limitations. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th
Cir. 2004). Limitations resulting from symptoms such as pain are also factored into the assessment.
20 C.F.R. § 404.1545(a)(3). The United States Court of Appeals for the Eighth Circuit has held
that a “claimant’s residual functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d
700, 704 (8th Cir. 2001). Therefore, an ALJ’s determination concerning a claimant’s RFC must
be supported by medical evidence that addresses the claimant’s ability to function in the
workplace. Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003). “To find a claimant has the
RFC to perform a certain type of work, the claimant must have the ability to perform the requisite
acts day in and day out, in the sometimes competitive and stressful conditions in which real people
work in the real world. Reed v. Barnhart, 399 F.3d 917, 923 (8th Cir. 2005)(citations omitted).
In the present case, the ALJ determined Plaintiff’s bilateral wrist osteoarthritis was a severe
impairment and limited Plaintiff’s RFC to a full range of light work which requires the use of arms
and hands to grasp and to hold and turn objects.3 In determining Plaintiff’s RFC, the ALJ discussed
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the RFC Assessment Form (RFC Form) dated December 15, 2018, completed by Dr. James E.
Kelly, III, Plaintiff’s hand surgeon, who opined Plaintiff could perform manipulative (reaching,
3 SSR 98-10, 1983 WL 31251, *5-6.
handling, fingering, gripping and feeling) activities six to eight hours a day;4 and, the non-
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examining medical consultants opinions (dated October 23, 2018, and February 28, 2019)
indicating Plaintiff could perform light work, noting no manipulative limitations. With respect to
Plaintiff’s manipulative abilities, the ALJ found the opinions of Dr. Kelly and the non-examining
consultants persuasive.
After reviewing the record, it is unclear whether Dr. Kelly completed the RFC Form with
both upper extremities in mind; or, if the limitations indicated are only for Plaintiff’s left upper
extremity. (Tr. 542-543). Part C of the RFC Form requests the examiner to note if the limitations
indicated on the form are for both extremities. Dr. Kelly made no such notation, which indicates
that this form relates only to Plaintiff’s left upper extremity. Dr. Kelly also reported that the clinical
and laboratory findings to support the limitations listed on the form consisted of Plaintiff’s left
ulnar abutment procedure and follow-up treatment as of June 16, 2017. There is no indication that
Dr. Kelly included limitations caused by Plaintiff’s right upper extremity impairment when he
completed the RFC Form.
Plaintiff’s medical records reveal that during follow-up treatment for her left upper
extremity in June of 2017, she told Dr. Kelly that she was experiencing similar symptoms with her
right upper extremity. (Tr. 479). Dr. Kelly suspected Plaintiff would need to undergo a right ulnar
abutment procedure and ordered Plaintiff to undergo a MRI and arthrogram of the right wrist.
However, in November of 2017, Dr. Kelly reported Plaintiff was having difficulty undergoing the
required MRI to verify the need for surgery due to her insurance declining the test. (Tr. 481). After
4 Dr. Kelly opined Plaintiff could lift and/or carry twenty pounds frequently, and fifty pounds occasionally; could
stand and/or walk a total of eight hours; could sit a total of eight hours; could push and/or pull (including hand/or
foot controls) with no limitations; would need three or four work breaks or bathroom breaks (excluding meal
breaks); could perform any work activities in a normal workday for either hours; could perform postural limitations
for six to eight hours; could reach, handle, finger, grip and feel for six to eight hours; and had no environmental
limitations. (Tr. 543).
undergoing physical therapy which failed to provide any pain relief, Dr. Kelly again requested a
MRI of Plaintiff’s right upper extremity. There is no indication that Plaintiff underwent the
requested MRI or that she was seen by Dr. Kelly after November of 2017. However, in October
of 2018, Plaintiff underwent a consultative general physical examination wherein she was found
to have deceased range of motion in her wrists, bilaterally; a fifty percent grip strength, bilaterally;
and an inability to write more than one to two words. (Tr. 527-532). Based on these exam findings,
the examiner opined Plaintiff had moderate limitations with carrying, lifting, and handling. These
findings were discounted by ALJ. As it is unclear whether the RFC Form relied upon by the ALJ
included consideration of Plaintiff’s right upper extremity impairment and a subsequent
examination revealed Plaintiff had decreased range of motion in her wrists and a fifty percent
decreased grip strength, the Court does not find substantial evidence supporting the ALJ’s RFC
determination. Accordingly, the Court finds remand necessary for the ALJ to more fully and fairly
develop the record regarding Plaintiff’s physical RFC.
On remand, the ALJ is directed to address interrogatories to a medical professional
requesting that said physician review Plaintiff's medical records; complete a RFC assessment
regarding Plaintiff's capabilities during the time period in question; and give the objective basis
for the opinion so that an informed decision can be made regarding Plaintiff's ability to perform
basic work activities on a sustained basis. With this evidence, the ALJ should then re-evaluate
Plaintiff's RFC and specifically list in a hypothetical to a vocational expert any limitations that are
indicated in the RFC assessment and supported by the evidence.
IV. Conclusion:
Based on the foregoing, the undersigned recommends reversing the decision of the ALJ
and remanding this case to the Commissioner for further consideration pursuant to sentence four
of 42 U.S.C. § 405(g). The parties have fourteen days from receipt of our report and
recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The
failure to file timely objections may result in waiver of the right to appeal questions of fact.
The parties are reminded that objections must be both timely and specific to trigger de novo
review by the district court.
DATED this 13th day of January 2022.
Christy Comstock
/s/
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE