Nunn

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

LISA NUNN PLAINTIFF

v. CIVIL NO. 25-5083

FRANK BISIGNANO, Commissioner

Social Security Administration DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Lisa Nunn, 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) 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 her current applications for DIB and SSI on March 24, 2022,

alleging an inability to work since August 1, 2021, due to fibromyalgia, osteoarthritis, back

problems and knee problems. (Tr. 81, 209, 211). For DIB purposes, Plaintiff maintained insured

status through September 30, 2023. (Tr. 15, 221). An administrative telephonic hearing was held

on January 17, 2024, at which Plaintiff appeared with counsel and testified. (Tr. 38-80).

By written decision dated March 27, 2024, the ALJ found that during the relevant time

period, Plaintiff had an impairment or combination of impairments that were severe. (Tr. 17).

Specifically, the ALJ found Plaintiff had the following severe impairments: fibromyalgia,

osteoarthritis (knees and hips), a disorder of the skeletal spine, and multiple sclerosis. 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) and 416.967(b) except she

can frequently climb ramps and stairs, stoop, kneel, crouch, and crawl. The

claimant can occasionally climb ladders, ropes, and scaffolds. In terms of

environmental limitations, the claimant must avoid concentrated exposure to

hazards such as machinery with moving mechanical parts and unprotected heights.

The claimant can have no exposure to noise intensity greater than moderate, as

defined by the SCO, and may tolerate light setting equivalent to an office setting.

The claimant can perform simple and routine tasks at a consistent pace but not at a

production rate pace where each task much (sic) be completed within a strict time

deadline.

(Tr. 18). With the help of a vocational expert, the ALJ determined Plaintiff could perform work as

a housekeeping cleaner, a merchandise marker and an advertising material distributor. (Tr. 29).

Plaintiff then requested a review of the hearing decision by the Appeals Council, who

denied that request on February 20, 2025. (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. 13, 15, 16).

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 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. §§ 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 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. §§ 404.1520, 416.920.

III. Discussion:

In her appeal brief, Plaintiff claims the ALJ’s decision is not supported by substantial

evidence in the record. (ECF No. 13). Specifically, Plaintiff raises the following arguments for

reversal: A) The ALJ’s improper termination of cross-examination violated due process by

preventing resolution of a critical record conflict; B) The ALJ’s decision is not supported by

substantial evidence because she failed to fulfill her burden at Step-Five; and C) The ALJ’s RFC

determination omits key limitations in handling and fingering. Upon review, the Court finds the

ALJ did not fully consider Plaintiff’s alleged upper extremity impairments when evaluating her

disability. Accordingly, the Court will only address this issue on reversal.

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 [her]

RFC.” Id.

In the present case, the ALJ determined that Plaintiff maintained the RFC to perform light

work with some postural and environmental limitations. However, the ALJ determined Plaintiff

had no manipulative limitations. (Tr. 18). After reviewing the evidence of record, the Court is

troubled by the ALJ’s dismissal of Plaintiff’s ongoing and consistent complaints of bilateral upper

extremity pain, numbness and tingling. In late 2023, when Plaintiff’s multiple sclerosis diagnosis

was confirmed with objective testing to include a MRI of the brain, a lumbar puncture, laboratory

testing and clinical correlation, Plaintiff reported an increase in her upper extremity pain,

numbness and tingling that resulted in her dropping items. (Tr. 992, 1077, 1083-1086, 1138). The

record reveals that Plaintiff consistently reported experiencing numbness and tingling in her upper

extremities to her treatment providers in late 2023 into early 2024. (Tr. 900, 1046, 1123, 1170).

The ALJ appears to dismiss any upper extremity limitations by pointing to examination findings

that reveal Plaintiff had a normal grip strength and the opinions of the non-examining medical

consultants who opined as to Plaintiff capabilities four months prior to her reports of an increase

in her bilateral upper extremity symptoms and the confirmation of her diagnosis of multiple

sclerosis. 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 alleged bilateral upper extremity

impairments. While on remand, the ALJ should also address Plaintiff’s complaints of vision

changes that occurred in late 2023, to include blurred vision and intermittent diplopia. (Tr. 900,

1047, 1123).

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 30th day of September 2025.

Anca Comstock

CHRISTY£OMSTOCK

UNITED STATES MAGISTRATE JUDGE