The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DAVID GUTIERREZ PLAINTIFF
v. CIVIL NO. 24-5206
LELAND DUDEK,1 Acting Commissioner
Social Security Administration DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, David Gutierrez, 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 his 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 his current applications for DIB and SSI on September 23, 2020,
alleging an inability to work since May 10, 2020, due to an auto accident resulting in shoulder and
head injuries. (Tr. 54, 196, 203, 205). An administrative telephonic hearing was held on October
14, 2022, at which Plaintiff appeared with counsel and testified. (Tr. 30-50).
1 Leland Dudek, has been appointed to serve as Acting Commissioner of the Social Security
Administration, and is substituted as Defendant pursuant to Rule 25(d)(1) of the Federal Rules of
Civil Procedure.
By written decision dated September 20, 2023, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 16).
Specifically, the ALJ found Plaintiff had the following severe impairments: a history of facial
abscess with improvement, a history of scapular fracture, and a history of renal insufficiency after
antibiotic prescription with improvement. 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. 18). The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform a
full range of light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b). The ALJ, with
the use of the Medical-Vocational Guidelines, found Plaintiff was not disabled during the relevant
time period. (Tr. 23-24).
Plaintiff then requested a review of the hearing decision by the Appeals Council, who
denied that request on August 5, 2024. (Tr. 1-5). 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 No. 10, 12).
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:
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 his 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 disability, not simply his 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 his 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 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 his 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 his 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 a full
range of light work. In doing so, the ALJ found Plaintiff’s alleged left-eye vision impairment to
be non-severe. (Tr. 16). With respect to Plaintiff’s alleged left eye impairment, a review of the
medical evidence revealed that in May of 2020, Plaintiff sustained multiple injuries – to include
severe head injuries- in a motor vehicle accident. (Tr. 371-456, 458-491, 500-504). Residuals of
these injuries included a mostly paralyzed left frontalis muscle, ptosis of the left-eyelid causing
Plaintiff’s eyelid to droop over his eye, and chronic tearing. In January of 2021, due to chronic
tearing, Plaintiff underwent exploratory eye surgery performed by Dr. Daniel T. Sines. (Tr. 534-
536). Medical records dated May 3, 2021, revealed that Plaintiff’s left eyelid “would not open
much at all.” (Tr. 590). In July of 2021, Dr. Sines noted Plaintiff had improvement with the chronic
tearing, but Plaintiff continued to have significant ptosis. (Tr. 918). On September 13, 2021,
Plaintiff’s primary care physician, Dr. Rossitza Hristoskova, noted Plaintiff could not open his left
eye secondary to scar tissue. (Tr. 877). Plaintiff’s restriction of the left eyelid was noted by Dr.
Chad W. Putnam, Plaintiff’s otolaryngologist, on October 21, 2021. (Tr. 872). On December 1,
2021, Dr. Daniel Sundaresan Paul, Plaintiff’s pulmonologist, noted the scar over Plaintiff’s left
upper eyelid with ptosis. (Tr. 855). On December 3, 2021, Dr. Sines noted some improvement with
Plaintiff’s ability to open his eyelid, but indicated Plaintiff’s left eyelid was “still pretty ptotic,”
which “blocks the vision.” (Tr. 906). Plaintiff reported continued vision problems in January and
April of 2022. (Tr. 850, 933-934). On August 22, 2022, Dr. Sines noted the position of Plaintiff’s
left upper eyelid had not changed significantly and that Plaintiff reported some evenings the eyelid
closed on its own. (Tr. 903). When this happened, Plaintiff reported he would physically lift the
left eyelid. Plaintiff also reported that his eyelid impeded his vision. At the hearing before the ALJ
in October of 2022, Plaintiff testified he continued to have left eye vision problems. (Tr. 36, 38-
39). After reviewing the record as a whole, the Court finds remand necessary for the ALJ to more
fully and fairly develop the record regarding Plaintiff’s physical RFC, particularly his alleged
vision impairment.
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 28th day of February 2025.
/si_( hast Comateck
CHRISTY G@OMSTOCK
UNITED STATES MAGISTRATE JUDGE