United States District Court, E.D. Arkansas, Western Division
BONIFACIA M. CARDENAS PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT
following Recommended Disposition
(“Recommendation”) has been sent to Judge J. Leon
Holmes. Any party may file written objections to all or part
of this Recommendation. Objections must identify the factual
or legal basis for the objection. To be considered, all
objections must be received by the Clerk of Court within
fourteen (14) days of this Recommendation. By not objecting,
parties may waive the right to appeal questions of fact.
Cardenas applied for social security disability benefits with
an alleged onset date of June 20, 2009. (R. at 109). After a
hearing, the administrative law judge (ALJ) denied Ms.
Cardenas's application. (R. at 15-16). The case was
remanded after judicial review. (R. at 468). In the interim,
Ms. Cardenas filed a subsequent application on January 28,
2015, which was allowed at the initial level, limiting the
remanded case to the period before January 28, 2015. (R. at
478). The ALJ denied Ms. Cardenas's applications for the
period preceding the second application. (R. at 370-71). The
ALJ's decision became final on the sixty-first day
following the decision per 20 C.F.R §§ 404.984(a),
416.1484(a). (R. at 352). Ms. Cardenas has requested judicial
The Commissioner's Decision
found that Ms. Cardenas had severe impairments, including:
chronic low back pain, joint pain, hand pain, and adjustment
disorder with mixed anxiety and depressed mood. (R. at 357).
In assessing the severity of Ms. Cardenas's mental
impairments and after determining they did not meet a
listing, the ALJ found that Ms. Cardenas had mild limitations
in activities of daily living and in concentration,
persistence, and pace; and she had moderate limitations in
the domain of social functioning. (R. at 357-58). The ALJ
found that Ms. Cardenas had the residual functional capacity
(RFC) to perform sedentary work, which requires the ability
to lift/carry up to ten pounds occasionally; stand/walk for
two hours in an eight-hour workday; sit for a total of six
hours in an eight-hour workday; occasionally stoop, balance,
bend, crouch, kneel, or crawl; frequently finger and handle
bilaterally; and perform simple, routine, and repetitive
tasks with supervision that is simple, direct, and concrete.
(R. at 359).
RFC precluded Ms. Cardenas's past relevant work. (R. at
369). The ALJ took testimony from a vocational expert (VE),
who testified that a person with Ms. Cardenas's age,
education, work experience, and RFC could perform jobs such
as document preparer or call out operator. (R. 370). The ALJ
held, therefore, that Ms. Cardenas was not disabled. (R. at
Cardenas argues that the ALJ's RFC is inconsistent with
his finding that she had moderate limitations in social
functioning. She also contends that the ALJ's
determination is contrary to the opinion evidence; that the
ALJ failed to consider listing 12.05C; that the ALJ failed to
include borderline intellectual functioning in the RFC; that
the ALJ failed to properly consider her inability to afford
medical treatment and her medical improvement; and that the
jobs identified by the VE were inconsistent with the RFC.
task of the Court is to determine whether substantial
evidence supports the Commissioner's findings. Prosch
v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000).
“Substantial evidence” in this context means,
“enough that a reasonable mind would find it adequate
to support the ALJ's decision.” Slusser v.
Astrue, 557 F.3d 923, 925 (8th Cir. 2009) (citation
omitted). In performing this analysis, the Court looks both
to evidence supporting the Commissioner's findings and
also to evidence that detracts from the decision. Milam
v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015). The Court
will not reverse the Commissioner's decision, however,
solely because substantial evidence would have supported a
found that Ms. Cardenas had moderate limitations in social
functioning while considering whether her impairments met a
listing. (R. at 358). Ms. Cardenas argues that the RFC
contains no limitations on social interactions to account for
these limitations. The Commissioner responds that the step 3
determination applies only to the consideration of the
listings and has no bearing on the limitations assessed in
the determinations made at step 3 are not an RFC assessment.
The mental RFC assessment “requires a more detailed
assessment by itemizing various functions contained in the
broad categories found in paragraphs B and C of the adult
mental disorders listings in 12.00 of the Listing of
Impairments.” Titles II & XVI: Assessing
Residual Functional Capacity in Initial Claims, SSR
96-8P (S.S.A. July 2, 1996). The regulations note that the
Commissioner will generally find an impairment to be
non-severe if the degree of limitation is “none”
or “mild” unless evidence shows a more than
minimal limitation in the ability to do basic work
activities. 20 C.F.R. §§ 404.1520a(d)(1),
416.920a(d)(1). The ALJ proceeds to an RFC assessment
concerning impairments that are severe but do not meet a
listing. 20 C.F.R. §§ 404.1520a(d)(3),
416.920a(d)(3). The RFC must account for all of a
claimant's impairments. Mabry v. Colvin, 815
F.3d 386, 390 (8th Cir. 2016).
the ALJ clearly noted that Ms. Cardenas had limitations in
that she isolated herself from others. In fact, the ALJ found
that Ms. Cardenas had moderate limitations in social
functioning. (R. at 358). The RFC includes no limitations
related to social functioning, in spite of those findings.
(R. at 359). The listings indicate that moderate limitations
in an area indicate that a claimant's ability to operate
in that domain is “fair, ” a greater limitation
than the “slightly limited” ability indicated by
mild limitations. 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
By definition, this indicates a “more than
minimal” impact on the ability to do certain work
activities. It is incongruous to find an impairment meets the
criteria of severity in one portion of the decision but also
to find that there is no impact to the claimant's RFC.
Commissioner argues that the difference between a step 3
determination and an RFC assessment obviates inconsistency.
The regulations and rulings, however, do not anticipate
inconsistency; rather, they require more detail concerning
the impairment in the RFC. SSR 96-8p. If the ALJ finds
“moderate” limitations at step 3, the ALJ must
spell out the specific limitations in the RFC that are
consistent with those moderate limitations. Other courts have
held similarly. See, e.g., Clevenger ...