The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
HOLLY JEAN PERINE PLAINTIFF
v. CIVIL NO. 22-2133
KILOLO KIJAKAZI, Acting Commissioner DEFENDANT
Social Security Administration
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONS
Plaintiff, Holly Jean Perine, 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”) under Titles II and XVI of the Social Security
Act (“the Act”), 42 U.S.C. § 423(d)(1)(A). In this judicial review, the Court must determine
whether there is substantial evidence in the administrative record to support the Commissioner’s
decision. See U.S.C. § 405(g).
I. Procedural Background:
Plaintiff protectively filed her applications for DIB and SSI on July 2, 2019, alleging an
inability to work since June 23, 2019, due to bipolar, paranoia, hallucinations, anxiety, diabetes,
obesity, asthma, a disc in her back, polycystic ovary syndrome, gastroesophageal reflux disease,
and carpal tunnel syndrome. (Tr. 11, 336). The ALJ issued an unfavorable decision on June 29,
2021. (Tr. 8–27). The ALJ found that Plaintiff had an impairment or combination of impairments
that were severe: disorder of the back, morbid obesity, migraine headaches, asthma, anxiety, and
mood disorders. (Tr. 14). The ALJ found that Plaintiff also suffered from the following
medically determinable impairments that were not severe: diabetes mellitus, gastroesophageal
reflux disease, and sleep apnea. After reviewing all evidence presented, the ALJ determined that
through the date last insured, Plaintiff’s impairments did not meet or equal the level of severity
of any impairment in the Listing of Impairments found in 20 C.F.R., Subpart P, Appendix 1. (Tr.
14–16). The ALJ found Plaintiff retained the residual functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a)
except the claimant can occasionally climb ramps and stairs but never climb
ropes, ladders or scaffolds. She can occasionally balance, stoop, kneel, crouch and
crawl. She must avoid concentrated exposure to extreme heat or cold, humidity
and noise and avoid even moderate exposure to fumes, odors, dusts, gases, poor
ventilation and hazards such as dangerous machinery and unprotected heights.
The claimant can perform work where interpersonal contact is incidental, e.g.,
assembly work, tasks should be no more complex than those learned and
performed by rote with few variables and little judgment. Supervision required is
simple, direct, and concrete. She will need to use a cane to ambulate.
(Tr. 16–25).
With the help of a VE, the ALJ determined that the Plaintiff would be unable to perform
any of her past relevant work but would be able to perform the representative occupations of
document preparer, cutter and paster, and printed circuit board inspector. (Tr. 25–26). The ALJ
found Plaintiff had not been under a disability, as defined by the Act, from June 23, 2019,
through June 29, 2021, the date of his decision. (Tr. 26).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
was denied on June 23, 2022. (Tr. 1–4). Subsequently, Plaintiff filed this action. (ECF No. 2).
The parties have filed appeal briefs and this case is before the undersigned for report and
recommendation pursuant to 28 USC §636 (b). (ECF Nos. 13, 15). The Court has reviewed the
entire transcript. The complete set of facts and arguments are presented in the parties’ briefs and
are repeated here only to the extent necessary.
II. Applicable Law:
This court’s role is to determine whether substantial evidence supports the
Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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). We must affirm the ALJ’s decision if the record contains substantial evidence to support
it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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.
A claimant for Social Security disability benefits has the burden of proving her disability
by establishing a physical or mental disability that has lasted at least one year and that prevents
him 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 his or her disability, not simply
his or 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 his or 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 his or her age, education, and experience. See 20 C.F.R. § 404.1520(a)(4).
The fact finder only considers Plaintiff’s age, education, and work experience in light of his or
her residual functional capacity if the final stage of the analysis is reached. See 20 C.F.R. §
404.1520(a)(4)(v).
III. Discussion
Plaintiff raises the following issues in this matter: 1) whether the ALJ erred in failing to
fully and fairly develop the record; 2) whether the ALJ erred at step two by not properly
performing the psychiatric review technique particularly on Plaintiff’s psychotic disorder, and by
failing to consider Plaintiff’s carpal tunnel and diabetes; 3) whether the ALJ erred in assessing
Plaintiff’s subjective complaints; and 4) whether the ALJ erred in his residual functional capacity
determination. (ECF No. 13). The Commissioner argues that the ALJ’s did consider Plaintiff’s
psychotic symptoms and auditory hallucinations at subsequent steps and properly accounted for
resulting limitations, rendering any step two error harmless. (ECF No. 15). The Commissioner
argues the ALJ was not required to find Plaintiff’s carpal tunnel or diabetes severe at step two, as
Plaintiff’s citation to the CE was insufficient to show a severe impairment and she did not cite to
evidence demonstrating functional limitations attributable to diabetes. Next, the Commissioner
argues the ALJ properly evaluated the consistency of the evidence, citing Plaintiff’s
improvements in mental and physical health, her return to work in March 2020, activities of
daily living including travel, and lack of inpatient mental health care. Plaintiff argues the ALJ’s
RFC finding was proper, and that the record was fully and fairly developed.
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). “[T]he ALJ is
[also] required to set forth specifically a claimant’s limitations and to determine how those
limitations affect h[er] RFC.” Id.
While it is not reversible error to fail to find an impairment severe at step two, so long as
said impairment is considered in the RFC assessment, failure to find an impairment severe at step
two, and then failing to consider the effect of the impairment on Plaintiff’s RFC is reversible
error. See Misty G. v. Berryhill, 0:18-CV-00587-KMM, 2019 WL 1318355 (D. Minn. Mar. 22,
2019); Coleman v. Astrue, No. 4:11CV2131 CDP, 2013 WL 665084, at *10, 20 (E.D. Mo. Feb.
25, 2013) (finding the ALJ’s failure to find Coleman’s back pain a severe impairment, and then
failing to consider the effect of her back pain in combination with her other severe impairments
was reversible error).
Plaintiff testified at the hearing that her hands hurt less when she slept since having
carpal tunnel release surgeries in 2018 and 2019, but just writing a couple sentences on paper
made her hands hurt and holding her phone in that moment to have the hearing made her hands
hurt. (Tr. 147). Plaintiff testified that her hands would go numb and sometimes they would just
open up because she often had no feeling in her hands, and she did not use a keyboard much
because repetitive work like that hurt her hands. (Tr. 149). At Plaintiff’s Orthopedic Consultative
Examination Dr. Sonia Cox noted abnormalities in Plaintiff’s wrist flexibility and grip strength,
and opined she would have mild limitations in her ability to lift, carry, handle, and finger up to
20 pounds while seated. (Tr. 1169, 1171). The ALJ did not discuss Plaintiff’s carpal tunnel
release surgeries, her testimony about her hand limitations, or Dr. Cox’s finding as to her hands
beyond finding overall that the opinion was inconsistent with her physical examination. In
making this finding, the ALJ cited only to inconsistencies with records pertaining to her leg and
back, leaving the matter unclear as to how Dr. Cox’s opinion regarding manipulative limitations
was inconsistent with the record. (Tr. 23). The ALJ erred in failing to consider Plaintiff’s carpal
tunnel syndrome at step two and then failing to consider any limitations arising from this
impairment in the RFC analysis.
Of further concern is the ALJ’s lack of limitations regarding Plaintiff’s difficulty
focusing due to constant auditory and occasional visual hallucinations. While the ALJ did
recount Plaintiff’s mental health treatment in the RFC determination, he takes an extremely
optimistic view as to the effectiveness of her treatment, highlighting findings of normal mood
and affect with intact judgment and thought processes and finding that with treatment she was
better able to manage her hallucinations and other symptoms while ignoring Plaintiff’s constant
auditory hallucinations discussed and treated at those same appointments. (Tr. 24). Despite
Plaintiff’s allegations of bipolar, paranoia, anxiety and hallucinations in her initial application,
and the fact that bipolar with psychotic features and agoraphobia with panic disorder were the
diagnoses she received treatment for throughout the relevant time period; the ALJ found
Plaintiff’s only severe mental impairments were anxiety and mood disorders and did not find
bipolar or agoraphobia to be nonsevere or otherwise explain the omission of these impairments.
(Tr. 14, 510, 545, 601, 795, 798, 801, 823, 826, 815, 1012, 1015–20). At her most recent
medication management appointment before the administrative hearing, Plaintiff’s medication
was increased for mood and hallucinations, she reported ongoing hallucinations and severe
emotional ups and downs. (Tr. 1010). The ALJ’s failure to account for work limitations imposed
by constant ongoing auditory and frequent visual hallucinations, particularly with evidence that
this would cause her to be distracted or experience absenteeism, was error and warrants remand.
The Court believes remand is necessary for the ALJ to more clearly account for all of
Plaintiff’s limitations in the RFC determination. Additionally, as the ALJ found both
consultative examinations to be unpersuasive, and the state agency physician opinions were from
November of 2019 and earlier the ALJ may also order consultative examinations, in which, the
consultative examiner should be asked to review the medical evidence of record, perform
examinations and appropriate testing needed to properly diagnose Plaintiff’s condition(s), and
complete a medical assessment of Plaintiff’s abilities to perform work related activities. See 20
C.F.R. § 416.917. 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 assessments and supported by the evidence.
Ii. Conclusion
Based on the foregoing, it is recommended that the Commissioner’s final decision be
reversed, and the case remanded back 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 30th day of June 2023
/si/ CAneaty Comatack
HON. CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE