The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
ELINETTE SANCHEZ MARRERO PLAINTIFF
v. CIVIL NO. 23-5091
MARTIN J. O’MALLEY, Commissioner
Social Security Administration DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Elinette Sanchez Marrero, 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 claim for supplemental security income (SSI) benefits under the
provisions of Title 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 application for SSI on March 20, 2020, alleging an
inability to work due to fibromyalgia, depression, anxiety, bipolar disorder, asthma, post-traumatic
stress disorder, and schizophrenia. (Tr. 97, 230). An administrative telephonic hearing was held
on January 7, 2022, at which Plaintiff appeared with counsel and testified. (Tr. 40-60).
By written decision dated July 27, 2022, the ALJ found that during the relevant time period,
Plaintiff had an impairment or combination of impairments that were severe. (Tr. 19). Specifically,
the ALJ found Plaintiff had the following severe impairments: generalized anxiety disorder,
depression, bipolar disorder, asthma, fibromyalgia, and degenerative disc disease. However, after
reviewing all 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. 20). The ALJ found Plaintiff retained the residual
functional capacity (RFC) to:
[P]erform sedentary work as defined in 20 CFR 406.967(a) except the claimant
cannot reach overhead; the claimant must avoid even moderate exposure to fumes,
odors, dusts, gasses, and poor ventilation; the claimant can do work where
interpersonal contact is incidental to the work performed, e.g. assembly work,
where the complexity of tasks is learned and performed by rote, with few variables,
and little judgment, and where the supervision required is simple, direct, and
concrete.
(Tr. 22-23). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a touch-up screener, a document preparer, and a film touch-up inspector. (Tr. 30).
Plaintiff then requested a review of the hearing decision by the Appeals Council, who
denied that request on April 12, 2023. (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. 12, 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). We 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, the court
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 disability 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 him 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. § 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. § 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). “[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.
In the present case, the ALJ determined Plaintiff maintained the RFC to perform sedentary
work with limitations to include no overhead reaching; avoiding even moderate exposure to fumes,
orders, dusts, gasses, and poor ventilation; and work where interpersonal contact is incidental to
the work performed, the complexity of tasks is learned and performed by rote, and the supervision
required is simple, direct, and concrete. (Tr. 22). In determining this RFC, the ALJ stated that he
found the consultative examiner’s (Examiner) general physical examination findings dated May
19, 2022, persuasive. (Tr. 28). In doing so, the ALJ found the Examiner had the opportunity to
personally examine Plaintiff and that the findings are generally consistent with the medical
evidence appearing in the record. What is troubling to the undersigned is the ALJ’s failure to
discuss the Examiner’s findings regarding Plaintiff’s inability to hold a pen with her right hand, to
touch fingertips to palm with her right hand, to oppose thumb to fingers with her right hand and to
have a zero percent grip strength in her right hand and ten percent grip strength in her left hand.
(Tr. 1958).
Most unskilled sedentary jobs require good use of both hands and fingers and any
significant manipulation limitations will result in a significant erosion of the unskilled sedentary
occupational base. Titles II & XVI: Determining Capability to Do Other Work-Implications of a
Residual Functional Capacity for Less Than a Full Range of Sedentary Work, SSR 96-9P, *8
(S.S.A. July 2, 1996). The Court notes the jobs the ALJ found Plaintiff could perform require
frequent to constant fingering and handling. See DICOT §§ 726.684-110, 249.587-018, 726.684-
050 at www.westlaw.com. After reviewing the record, the Court finds remand necessary for the
ALJ to more fully and fairly develop the record with respect to Plaintiff’s ability to use her upper
extremities. While on remand, the ALJ should also discuss the Examiner’s opinion that Plaintiff
“needs to have [a] psychiatric evaluation.” (Tr. 1959).
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 29th day of April 2024.
/s/ sty (Cometeck
CHRISTYCCOMSTOCK
UNITED STATES MAGISTRATE JUDGE