Villatoro v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

BENITA VILLATORO PLAINTIFF

V. Civil No. 2:24-cv-02152-TLB-MEF

FRANK BISIGNANO, Commissioner,1

Social Security Administration DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Benita Villatoro, brings this action under 42 U.S.C. § 405(g), seeking judicial

review of a decision of the Commissioner of Social Security Administration (“Commissioner”)

denying her claim for a period of disability, disability insurance benefits (“DIB”), and

supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act

(hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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 42 U.S.C. § 405(g).

I. Procedural Background

Plaintiff filed her applications for DIB and SSI in July 20192, alleging disability since July

27, 2019, due scoliosis, degenerative disk disease (“DDD”), adjustment disorder, anxiety,

depression, and sciatica. (ECF No. 8, pp. 146, 157, 173, 187, 298-311, 357, 381-382). The

Commissioner denied Plaintiff’s applications initially and on reconsideration, and an

1 Frank Bisignano was sworn in to serve as Commissioner of the Social Security Administration

on May 7, 2025, and in his official capacity is substituted as defendant. See Fed. R. Civ. P. 25(d).

2 Plaintiff filed a prior application for benefits in August 2008 which was denied by ALJ Edward

Starr on April 7, 2010. (ECF No. 8, pp. 101-110). Additionally, her November 2021 application

was denied by ALJ Glenn Neel on September 14, 2014. (ECF No. 8, pp. 122-136).

administrative hearing was held on October 5, 2021. (Id. at 63-96). Plaintiff was present and

represented by counsel.

On her alleged onset date, Plaintiff was 36 years old and possessed a high school education.

(ECF No. 8, pp. 146, 358). She had no qualifying past relevant work (“PRW”) experience. (Id.

at 40).

On June 2, 2022, Administrative Law Judge (“ALJ”) Bill Jones identified Plaintiff’s

scoliosis, DDD, deformity of the ankle, surgical fixation of the right forearm, and obesity as severe

impairments. (ECF No. 8, p. 28). He concluded, however, that Plaintiff did not have an

impairment or combination of impairments that met or medically equaled the severity of an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 31). As such, ALJ Jones

found Plaintiff capable of performing a full range of sedentary work. (Id.). Utilizing Medical

Vocational-Rule 201.27, he determined the Plaintiff was not disabled. (Id. at 40-41).

The Appeals Council denied Plaintiff’s request for review on December 22, 2022. (ECF

No. 8, pp. 15-21). Plaintiff subsequently filed her Complaint to initiate this action. (ECF No. 2).

Both parties have filed appeal briefs (ECF Nos. 9, 14), and the matter is ripe for resolution. The

case has been referred to the undersigned for Report and Recommendation.

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 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). If there is substantial evidence in the record to support

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

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), 1382c(a)(3)(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), 1382c(a)(3)(D). 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. §§ 404.1520(a)(4), 416.920(a)(4). The

fact finder will only consider Plaintiff’s age, education, and work experience in the light of her

residual functional capacity if the final stage of the analysis is reached. 20 C.F.R. §§

404.1520(a)(4)(v), 416.920(a)(4)(v).

II. Discussion

Plaintiff raises several issues on appeal, including an allegation that she was denied a full

and fair hearing. The ALJ obtained a consultative evaluation after the administrative hearing but

refused to submit her interrogatories to the author. “A disability claimant is entitled to a full and

fair hearing under the Social Security Act.” Hepp v. Astrue, 511 F.3d 798, 804 (8th Cir. 2008);

see also, e.g., Wilburn v. Astrue, 626 F.3d 999, 1003 (8th Cir. 2010). Fundamental to due process

is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v.

Eldridge, 424 U.S. 319, 333 (1976) (quotation omitted); cf. Haynes v. Apfel, 205 F.3d 1346, 2000

WL 84500, at *1 (8th Cir. 2000) (per curiam). This includes “the opportunity to cross-examine

and subpoena the individuals who submit reports.” Coffin v. Sullivan, 895 F.2d 1206, 1212 (citing

Richardson v. Perales, 402 U.S. 389, 401-406 (1971)).

To determine whether the process afforded in a particular case is sufficient under the due

process clause, courts must balance:

[f]irst, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government’s

interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirement would entail.

Eldridge, 424 U.S. at 335.

According to the Social Security Administration’s Hearings, Appeals, and Litigation Law

Manual (“HALLEX”), an ALJ must proffer post-hearing medical reports to the Plaintiff. See

Posthearing Evidence – When Proffer is Required, HA 01270.001, available at

https://secure.ssa.gov/apps10/poms.nsf/lnx/2501270001. To do so, he must send a letter to the

Plaintiff and his/her appointed representative allowing them to comment on, object to, or refute

the evidence by submitting other evidence; or if required for a full and true disclosure of the facts,

cross-examine the author(s) of the evidence. Id; see also Proffer Procedures, HA 01270.030,

available at https://secure.ssa.gov/apps10/poms.nsf/lnx/2501270030. Thus, the ALJ is vested

with determining whether cross-examination is necessary. Id.

Following Plaintiff’s administrative hearing, the ALJ ordered a consultative examination

which was conducted by Dr. Jordan Hanberry on February 16, 2022. (ECF No. 8, pp. 694-698).

He indicated that the Plaintiff had alleged disability due to forearm pain, acknowledging her May

2021 fall and subsequent surgery during which a plate and pins were placed in her upper extremity.

Dr. Hanberry further noted her report of sharp pain and a numbing sensation in the fingers with

movement that was worsened by activity and certain movements as well as difficulty lifting,

pulling, and pushing. Further, he stated that she denied experiencing mood changes, depression,

suicidal ideation, nervousness, anxiety, difficulty concentrating, and difficulty sleeping.

On exam, Dr. Hanberry documented a well-nourished female who was appropriately

dressed and in no acute distress. (ECF No. 8, p. 695). Further, he described a decreased range of

motion in her right hand; 4/5 grip strength with fine motor movements and the ability to grasp and

manipulate objects; a scar on her right forearm; good motor strength and tone; and a normal gait

with the ability to rise from a sitting position without assistance, stand on toes and heels, tandem

walk, and bend and squat without difficulty. From a mental perspective, Dr. Hanberry recorded

no evidence of depression or anxiety, the ability to communicate without difficulty, intact recent

and remote memory, and good insight and cognitive function. X-rays of her right forearm also

revealed previous surgical fixation of the distal radius, a well healed ulna, intact ulnar styloids,

and mild osteopenia. (Id. at 696). Accordingly, the doctor concluded she could sit, stand, and/or

walk for a full workday; should be limited in holding or carrying objects heavier than 10 pounds

due to decreased strength and mobility in the right hand; should be limited in any overhead tasks

or jobs that require manual labor; could hold a conversation; and could respond appropriately to

questions and carry out and remember instructions.

On March 14, 2022, ALJ Jones penned a letter to Plaintiff’s counsel advising her that he

proposed to enter the results of Dr. Hanberry’s consultative examination into the record and of her

right to submit written comments concerning the evidence, a written statement as to the facts and

law believed to apply to the case, additional records the Plaintiff wished for him to consider, and/or

written questions for the author of the new evidence subject to his discretion concerning their

necessity. (ECF No. 8, pp. 430-431). The letter further stated that counsel could request a

supplemental hearing, which he would grant unless he decided to issue a fully favorable decision.

(Id.).

Ten days later, counsel filed objections to the proffered evidence. (ECF No. 8, pp. 433-

439). She maintained that Dr. Hanberry was not qualified to conduct orthopedic and mental health

examinations of the Plaintiff because his specialty is urology and men’s health. Further, counsel

argued that Dr. Hanberry did not conduct a thorough examination of Plaintiff, spending only five

minutes with her, and incorrectly noting that she denied mood changes, depression, suicidal

ideation, anxiety, and difficulty concentrating or sleeping at night. Additionally, she insisted it

was not clear from Dr. Hanberry’s opinion which medical records he reviewed in conjunction with

Plaintiff’s exam. His assessment stated only “available DDS documentation,” and he failed to

mention the surgical and imaging records contained in the record. Had he reviewed the full record,

counsel posited that he would not have stated the Plaintiff alleged disability due to forearm pain.

As such, she requested that Dr. Hanberry’s opinion be given no weight, or in the alternative, that

he be asked to complete interrogatories.

The ALJ denied Plaintiff’s request to submit the interrogatories to Dr. Hanberry. In his

opinion, he made the following findings:

Ms. Gallo’s second brief, dated March 24, 2022, objected to entering

into evidence the consultative examination conducted by Dr. Jordan

Hanberry in October 2021. The bases for this objection included that

Dr. Hanberry’s specialty of urology and men’s health is unrelated to

the claimant and her medical conditions; that he made inaccurate

statements within his report; that it is unclear what medical records

and other documents he reviewed prior to making his

determinations; and that his assessments regarding the claimant’s

mental abilities are unqualified. As a result, Ms. Gallo asked that

Dr. Hanberry’s report be given either no weight or that he answer

submitted interrogatories. (Exh. E17E). After consideration of

these grounds for objection, the undersigned also overrules this

objection. Hallex 1-2-7 provides guidance that an administrative

law judge will evaluate whether additional questioning is necessary.

In this situation, further questioning is not necessary because the

usefulness of Dr. Hanberry’s report can be limited to his physical

findings upon exam and corresponding assessments. With the

addition of the medical records, two other consultative

examinations, the claimant’s hearing testimony, and other evidence

of record, there is sufficient evidence to make a finding in this case.

(ECF No. 8, pp. 25-26).

Utilizing the balancing test established in Eldridge, the private interest involved here is

Plaintiff’s interest in a fair determination of her qualification (or lack thereof) for social security

disability benefits and a meaningful opportunity to present her case. A disability determination is

based on several factors, including the objective medical evidence in the case. Merely limiting

admission of the report to Dr. Hanberry’s “physical findings” is not sufficient to cure the alleged

errors Plaintiff has raised. She contests both his qualification to conduct an orthopedic

examination and the thoroughness of said exam. Additionally, the Plaintiff seeks clarification as

to which medical records were submitted to Dr. Hanberry for review because his opinion fails to

clearly state the evidence upon which it relies.

The information sought to be gleaned through said interrogatories could impact the

credibility of both the physician and his physical findings – findings upon which the ALJ relied in

determining Plaintiff’s RFC. Moreover, given the Social Security Administration’s Program

Operations Manual System provision for a supplemental hearing upon request (and such a hearing

was offered by the ALJ), it appears the Administration has internally weighed the costs and

benefits of providing a hearing and concluded the additional process afforded by a hearing

normally outweighs the hardship. Submission of interrogatories is a much less burdensome

procedure than a supplemental hearing and does not appear to be an undue burden. Therefore, we

believe the Plaintiff should have been allowed to submit her interrogatories to the physician.

Additionally, we note that the ALJ improperly discounted Dr. Eric Boe’s August 2021

opinion that the Plaintiff could never carry any amount of weight; lift/carry in a competitive work

situation; perform posturals; or grasp, turn, twist, fine manipulate, reach in front, or reach overhead

with her right arm. (ECF No. 8, pp. 553-556). Rather than reaching out to Dr. Boe to clarify

whether his restrictions were temporary or should apply indefinitely, the ALJ afforded his opinion

no weight. (Id. at 39). Six months later, however, we note that Dr. Hanberry also concluded the

Plaintiff would be limited in her ability to hold or carry objects heavier than 10 pounds and could

not perform manual labor. Because Plaintiff’s ability to lift, carry, and handle is crucial,3 we find

remand is also necessary to allow the ALJ to reconsider Plaintiff’s RFC. See Ellis v. Barnhart,

3 Most unskilled sedentary jobs require good use of both hands and fingers. See 20 CFR §

404.1567(a).

392 F.3d 988, 994 (8th Cir. 2005) (duty to seek clarification from treating physician rises when

crucial issue is undeveloped).

Accordingly, we recommend remand to allow the Plaintiff a meaningful opportunity to

address the post-hearing report. On remand, the ALJ should also reconsider the evidence

concerning the Plaintiff’s RFC. It is strongly recommended that he recontact Dr. Boe to determine

the duration of his restrictions.

III. Conclusion

Based on the foregoing, it is RECOMMENDED that the Commissioner’s 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 (14) 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. We remind the parties

that objections must be both timely and specific to trigger de novo review by the district

court.

DATED this 27th day of August 2025.

/s/

Mark E. Ford

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE