Painter v. Saul

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

NORTHERN DIVISION

REBEKAH A. PAINTER, )

)

Plaintiff, )

)

v. ) No. 2:20 CV 22 RWS

)

KILOLO KIJAKAZI1, )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM AND ORDER

Plaintiff Rebekah A. Painter brings this action pursuant to 42 U.S.C. §§

405(g) and 1383(c)(3) seeking judicial review of the Commissioner’s decision

denying her application for disability benefits under the Social Security Disability

Insurance Program (SSDI),Title II of the Social Security Act, 42 U.S.C. §§ 401-

434 and for benefits under the Supplemental Security Income Program (SSI), Title

XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385. For the reasons set forth

below, I will reverse the decision of the Commissioner and remand this matter for

further proceedings.

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for Andrew Saul as the defendant in this suit.

No further action need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social

Security Act, 42 U.S.C. § 405(g).

Procedural History

Plaintiff was born in 1981. She protectively filed a Title II application for a

period of disability and disability insurance benefits and a Title XVI application

for supplemental security income on April 18, 2018. (Tr. 184-186.) She alleges

that she became disabled beginning February 6, 2018, because of trigeminal

neuralgia, osteoarthritis, venous reflux, posttraumatic stress disorder (PTSD),

major depressive disorder, generalized anxiety disorder / panic disorder, migraines,

polycystic ovary syndrome (PCOS), asthma, and carpal tunnel syndrome. (Tr.

228.)

Plaintiff’s applications were initially denied on August 30, 2018. (Tr. 100,

114.) After a hearing before an ALJ on May 9, 2019, the ALJ issued a decision

denying benefits on June 12, 2019. (Tr. 7-22.) On February 26, 2020, the Appeals

Council denied plaintiff’s request for review. (Tr. 1-6.) The ALJ’s decision is

now the final decision of the Commissioner. 42 U.S.C. §§ 405(g) and 1383(c)(3).

In this action for judicial review, Painter contends that the ALJ failed to

consider Painter’s care from a daily home assistance provider in determining her

residual functional capacity (RFC). In addition, Painter asserts that the ALJ failed

to consider medical treatments that would cause Painter to be absent from work

two or three days per month. Painter asks that I reverse the Commissioner’s final

decision and either award her benefits or remand the matter for further evaluation.

For the reasons that follow, I will remand the matter for further proceedings.

Medical Records and Other Evidence Before the ALJ

With respect to the medical records and other evidence of record, I adopt

plaintiff’s recitation of facts (ECF #19-1) to the extent they are admitted by the

Commissioner (ECF #27-1), as well as the additional facts submitted by the

Commissioner (ECF #27-2) as they are not contested by plaintiff. Additional

specific facts will be discussed as needed to address the parties’ arguments.

Discussion

A. Legal Standard

To be eligible for disability insurance benefits under the Social Security Act,

plaintiff must prove that he is disabled. Pearsall v. Massanari, 274 F.3d 1211,

1217 (8th Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552,

555 (8th Cir. 1992). The Social Security Act defines disability as the “inability to

engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which

has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A). An individual will be declared disabled “only

if [his] physical or mental impairment or impairments are of such severity that [he]

is not only unable to do [his] previous work but cannot, considering [his] age,

education, and work experience, engage in any other kind of substantial gainful

work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

To determine whether a claimant is disabled, the Commissioner engages in a

five-step evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482

U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the

claimant is engaged in substantial gainful activity. If the claimant is working,

disability benefits are denied. Next, the Commissioner decides whether the

claimant has a “severe” impairment or combination of impairments, meaning that

which significantly limits his ability to do basic work activities. If the claimant’s

impairment(s) is not severe, then he is not disabled. The Commissioner then

determines whether claimant’s impairment(s) meets or equals one of the

impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. If claimant’s

impairment(s) is equivalent to one of the listed impairments, he is conclusively

disabled. At the fourth step, the Commissioner establishes whether the claimant

can perform his past relevant work. If so, the claimant is not disabled. Finally, the

Commissioner evaluates various factors to determine whether the claimant is

capable of performing any other work in the economy. If not, the claimant is

declared disabled and becomes entitled to disability benefits.

I must affirm the Commissioner’s decision if it is supported by substantial

evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402

U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).

Substantial evidence is less than a preponderance but enough that a reasonable

person would find it adequate to support the conclusion. Johnson v. Apfel, 240

F.3d 1145, 1147 (8th Cir. 2001). “[Substantial evidence] means – and means only

– such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal

quotation marks and citations omitted). Determining whether there is substantial

evidence requires scrutinizing analysis. Coleman v. Astrue, 498 F.3d 767, 770 (8th

Cir. 2007).

I must consider evidence that supports the Commissioner’s decision as well

as any evidence that fairly detracts from the decision. McNamara v. Astrue, 590

F.3d 607, 610 (8th Cir. 2010). If, after reviewing the entire record, it is possible to

draw two inconsistent positions and the Commissioner has adopted one of those

positions, I must affirm the Commissioner’s decision. Anderson v. Astrue, 696

F.3d 790, 793 (8th Cir. 2012). I may not reverse the Commissioner’s decision

merely because substantial evidence could also support a contrary outcome.

McNamara, 590 F.3d at 610.

When evaluating evidence of pain or other subjective complaints, the ALJ is

never free to ignore the subjective testimony of the claimant, even if it is

uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d

1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant’s

subjective complaints when they are inconsistent with the record as a whole. See

e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the

subjective complaints, the ALJ is required to consider whether a claimant’s

subjective complaints are consistent with the medical evidence. See Polaski v.

Heckler, 739 F.2d 1320 (8th Cir. 1984) (listing factors such as the claimant’s daily

activities, the duration, frequency, and intensity of the pain, precipitating and

aggravating factors, dosage, effectiveness and side effects of medication, and

functional restrictions).2 When an ALJ gives good reasons for the findings, the

court will usually defer to the ALJ’s finding. Casey v. Astrue, 503 F.3d 687, 696

(8th Cir. 2007). However, the ALJ retains the responsibility of developing a full

and fair record in the non-adversarial administrative proceeding. Hildebrand v.

Barnhart, 302 F.3d 836, 838 (8th Cir. 2002).

B. ALJ’s Decision

In his written decision, the ALJ found that plaintiff had not engaged in

substantial gainful activity since the alleged onset date of February 6, 2018. (Tr.

12.) The ALJ found that plaintiff had the following severe impairments: trigeminal

2 This was once referred to as a credibility determination, but the agency has now eliminated use of the term

“credibility” to clarify that subjective symptom evaluation is not an examination of an individual’s character.

However, the analysis remains largely the same, so the Court’s use of the term credibility refers to the ALJ’s

evaluation of whether a claimant’s “statements about the intensity, persistence, and limiting effects of symptoms

are consistent with the objective medical evidence and other evidence of record.” See SSR 16-3p, 2017 WL

5180304, at *8 (Oct. 25, 2017); 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3); Lawrence v. Saul, 970 F.3d 989, 995

n.6 (8th Cir. 2020) (noting that SSR 16-3p “largely changes terminology rather than the substantive analysis to be

applied” when evaluating a claimant’s subjective complaints).

neuralgia; migraine headaches; arthritis; peripheral venous insufficiency; carpal

tunnel syndrome, obesity, and asthma. (Id.) The ALJ found plaintiff had the non-

severe impairments of depression and anxiety. (Id.) The ALJ determined that

plaintiff’s impairments or combination of impairments did not meet or medically

equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 14.)

The ALJ found plaintiff to have the residual functional capacity (RFC) to perform

sedentary work with the following limitations:

[Claimant can] lift or carry 10 pounds occasionally and five pounds

frequently with the right upper extremity. She can lift or carry ten

pounds occasionally. She can occasionally balance and stoop, but

cannot climb, kneel, crouch or crawl. She can frequently handle and

finger. She must avoid concentrated exposure to smoke, fumes, dust

and gasses. She must avoid workplace hazards, such as dangerous

machinery or at unprotected heights.

(Tr. 15.) The ALJ concluded that plaintiff could not perform her past

relevant work based on her RFC. (Tr. 20.) The ALJ consulted a vocational expert

(VE) to assess whether jobs within plaintiff’s RFC existed in significant numbers

in the national economy. (Tr. 20-21). The VE identified the jobs of food and

beverage order clerk (13,000 positions); printed circuit board screener (20,000

positions); and optical goods final assembler (7,000 positions). (Tr. 21.) The ALJ

therefore determined that plaintiff was not disabled within the meaning of the

Social Security Act. (Id.)

Plaintiff claims that this decision is not supported by substantial evidence

because the ALJ should have expressly considered her receipt of assisted living

help in taking care of her daily living needs and her two to three day absence from

work each month.

C. RFC

Painter’s most severe problem contributing to her alleged disability is her

trigeminal neuralgia. (TR. 37.) This condition causes unexplained chronic pain in

the face. It can be on either side of the face and feels like a stabbing, crushing,

constant pain. (Tr. 38.) The pain is constant and is usually up to a three on a scale

of ten. (Tr. 50.) Once or twice a week the pain can reach a seven or an eight. (Tr.

39.) When the pain is at this level Painter is unable to do work. (Tr. 51.) After

trying multiple treatments Painter turned to infusions of lidocaine to control the

pain. (Tr. 38.) The lidocaine infusions are done on an inpatient basis, each

treatment lasting two to three days. (Id.) These treatments allow her pain to be

greatly reduced but by the third week post-treatment it wears off and she can

experience intense pain after that period. (Tr. 39.) The lidocaine infusions worked

so well that Painter has them on a regular basis every three to four weeks. (Tr. 38.)

She has had a catheter port surgically placed to allow an easier administration of

her monthly lidocaine infusions. (Tr. 677.)

The ALJ’s decision acknowledged this information regarding Painter’s

trigeminal neuralgia. He confirmed that Painter receives an infusion treatment

approximately every month. (Tr. 17) However, the ALJ’s decision fails to discuss

the undisputed evidence that Painter must be admitted to the hospital for two or

three days every month to receive an infusion treatment. At the hearing the ALJ

asked the VE a hypothetical question of whether the potential jobs based on

Painter’s RFC would still be available if an individual was absent an average of

two days a month. (Tr. 59.) The VE responded that if a hypothetical individual

were absent two days a month those jobs would be “eliminated.” (Id.) The ALJ’s

decision does not address Painter’s undisputed two to three day hospital stay every

month or the VE’s position that missing work two days a month would eliminate

any potential job for Painter.

Moreover, in addressing Painter’s daily living activities the ALJ concluded

that Painter could prepare meals daily, provide care for her pet, attend to her own

personal care, and complete household chores. (Tr. 19.) At the hearing Painter

testified that she had assistance from Services for Independent Living which

provided a home health aide two hours a day, seven days a week. (Tr. 46-47.) She

testified that the service aide cooks, does household chores, cleans every room of

the house, does laundry, does dishes, and provides one hour of transportation per

week to take Painter to the store and help her shop. (Tr. 46) The ALJ does not

mention this service in his decision.

The Commissioner responds that the ALJ’s failure to mention and discuss

Painter’s two to three day monthly treatments, the VE’s opinion about missing

work two days a month, and Painter’s use of the Services for Independent Living

aide does not undermine the ALJ’s decision. The Commissioner states that the

ALJ is not required to discuss every piece of evidence submitted. (citing Hensley

v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). The Commissioner also notes that the

ALJ’s failure to discuss a specific piece of evidence does not mean it was not

considered (citing Chaney v. Colvin, 812 F.3d 672, 678 (8th Cir. 2016). Be that as

it may, when an ALJ fails to discuss a pivotal piece of undisputed evidence that

would completely undermine his decision, his omission should be addressed. I

find that the ALJ’s decision is not based on substantial evidence on the record as a

whole because he failed to address the critical monthly impact of Painter’s infusion

treatments on her ability to keep a job. As a result, I will remand this case for the

ALJ to address this issue. In addition, upon remand the ALJ should also explicitly

address the impact of the daily assisted living help Painter receives and how it

impacts Painter’s daily living assessment.

Conclusion

Because the ALJ’s failed to explicitly addresses Painter’s monthly infusion

treatments in relation to her ability to keep a job and the ALJ failed to explicitly

address the impact of Painter’s assisted living help on her daily living activities his

decision is not supported by substantial evidence on the record as a whole. As a

result, this case will be remanded for the ALJ to specifically address these issues.

Accordingly,

IT IS HEREBY ORDERED that, pursuant to sentence-four of 42 U.S.C. §

405(g), the decision of the Commissioner is REVERSED and the case is

REMANDED for further proceedings in accordance with this memorandum and

order.

A separate Judgment is entered herewith.

Ww

RODNEY W. SIPPEL

UNITED STATES DISTRICT JUDGE

Dated this 28" day of September, 2021.

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