The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
BRIAN MCKIM PLAINTIFF
v. CIVIL NO. 24-6164
FRANK BISIGNANO,1 Commissioner
Social Security Administration DEFENDANT
MEMORANDUM OPINION
Plaintiff, Brian McKim, 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 period of disability and disability insurance benefits (DIB) under the
provisions of Title II 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 application for DIB on June 10, 2021, alleging an
inability to work since November 20, 2020, due to a back injury, depression, social anxiety, a
learning disorder and insomnia. (Tr. 56, 199). For DIB purposes, Plaintiff maintained insured
status through December 31, 2024. (Tr. 214). An administrative telephonic hearing was held on
January 18, 2024, at which Plaintiff appeared with counsel and testified. (Tr. 32-54).
1 Frank Bisignano, has been appointed to serve as 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 February 26, 2024, 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: major depressive
disorder, anxiety disorder, learning disorder, and a spinal disorder, with hardware fusion.
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. 17). The ALJ found Plaintiff
retained the residual functional capacity (RFC) to:
[P]erform light work as defined in 20 CFR 404.1567(b) except: claimant can stand
and walk for 4 hours; occasional climbing, no ladders, ropes or scaffolding;
occasional balancing, stooping; no kneeling, no crawling; claimant is limited to
simple, nonproduction rate pace jobs, occasional interaction with the public,
occasional contact with coworkers and supervisors, occasional changes to work
procedures and requirements, no reading for meaning, simple addition and
subtraction, counting.
(Tr. 18-19). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a laundry worker, a mail sorter and a routing clerk. (Tr. 24).
Plaintiff then requested a review of the hearing decision by the Appeals Council, who
denied that request on November 29, 2024. (Tr. 1-6). Subsequently, Plaintiff filed this action.
(ECF No. 2). This case is before the undersigned pursuant to the consent of the parties. (ECF No.
6). Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 11,
13).
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, 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 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. 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. Id.
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 his
RFC.” Id.
For claims like Plaintiff's, filed after March 27, 2017, an ALJ evaluates medical opinions
pursuant to 20 C.F.R. § 404.1520(c). These new rules provide that the Social Security
Administration “will not defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s) or prior administrative medical finding(s), including those from
medical sources.” 20 C.F.R. § 404.1520c(a). Rather, an ALJ is to evaluate the persuasiveness of
any opinion or prior administrative medical finding by considering the: (1) supportability of the
opinion with relevant objective medical evidence and supporting explanations; (2) consistency
with the evidence from other medical sources and nonmedical sources in the claim; (3) relationship
with the plaintiff, including length, purpose, and extent of treatment relationship, whether it is an
examining source, and frequency of examination; (4) specialization; and (5) other relevant factors.
20 C.F.R. § 404.1520(c).
In the present case, the ALJ determined Plaintiff maintained the RFC to perform light work
with limitations to include being limited to simple, nonproduction rate pace jobs, occasional
interaction with the public, occasional contact with coworkers and supervisors, occasional changes
to work procedures and requirements, no reading for meaning, and simple addition, subtraction,
and counting. In making this determination, the ALJ found the opinion of Dr. Geraldene E. Moore,
Ph.D., a psychological consultative examiner, persuasive. (Tr. 21-22). However, the ALJ did not
include some of the limitations found in Dr. Moore’s opinion and failed to explain why these
additional limitations were not included in the RFC. Specifically, Dr. Moore opined Plaintiff had
a poor ability to attend to and sustain concentration on basic tasks; a poor ability to complete tasks;
and a poor capacity to complete work-like tasks in an acceptable time frame. (Tr. 1610-1611).
While the ALJ is not required to incorporate every limitation from a medical opinion into the RFC,
“once a medical opinion is found to be persuasive, an ALJ must explain any inconsistencies
between the limitations found in that opinion and the ultimate RFC.” Harris v. Dudek, No. 4:23-
CV-1705, 2025 WL 776516, at *3 (E.D. Mo. Mar. 10, 2025) (citations omitted). The record before
the Court is inadequate to permit meaningful review of the decision to omit Dr. Moore’s opinion
that Plaintiff had a poor ability to attend to and sustain concentration on basic tasks; a poor ability
to complete tasks; and a poor capacity to complete work-like tasks in an acceptable time frame.
On remand the ALJ should consider all of the functional limitations in Dr. Moore’s opinion and
should either incorporate those limitations into the RFC or explain why an excluded limitation was
not adopted. See Bedore v. Kijakazi, No. 4:22-CV-567-SPM, 2023 WL 6064854, at *6 (E.D. Mo.
Sept. 18, 2023).
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:
Accordingly, the Court concludes that the ALJ’s decision is not supported by substantial
evidence, and therefore, the denial of benefits to the Plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration pursuant to sentence four of 42
U.S.C. § 405(g).
DATED this 3rd day of July 2025.
isi Aas _Comateck
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE