Lane v. Kijakazi

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MARK LANE, )

)

Plaintiff, )

)

)

v. ) Case No. 4:20-cv-1520-NAB

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security,1 )

)

)

Defendant. )

MEMORANDUM OPINION

This is an action under 42 U.S.C. § 405(g) for judicial review of the final decision of

Defendant Kilolo Kijakazi, Acting Commissioner of Social Security (the “Commissioner”)

denying the application of Plaintiff Mark Lane (“Plaintiff”) for Disability Insurance Benefits

(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. (the “Act”). The parties

consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).

(Doc. 9). Because I find the decision denying benefits was not supported by substantial evidence,

I will reverse the Commissioner’s denial of Plaintiff’s application and remand the case for further

proceedings.

I. PROCEDURAL BACKGROUND

In May 2017, Plaintiff applied for DIB, alleging that he had been unable to work since

September 2016 due to bulging discs, herniated discs, nerve damage, and tail bone damage. (Tr.

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, therefore, 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).

262, 429).2 His application was initially denied. (Tr. 275-78). Plaintiff filed a Request for Hearing

by Administrative Law Judge (“ALJ”) (Tr. 279-80). At the hearing, Plaintiff amended the alleged

onset date to August 2, 2017. (Tr. 229). After a hearing, the ALJ issued an unfavorable decision

on October 22, 2019. (Tr. 200-10). Plaintiff filed a Request for Review of Hearing Decision with

the Social Security Administration’s Appeals Council (Tr. 335-38), but the Appeals Council

declined to review the case on August 27, 2020. (Tr. 1-4). Plaintiff has exhausted all administrative

remedies, and the decision of the ALJ stands as the final decision of the Commissioner of the

Social Security Administration.

With regard to Plaintiff’s testimony, medical and vocational records, the Court accepts the

facts as set forth in the parties’ statements of facts and responses.

II. STANDARD FOR DETERMINING DISABILITY UNDER THE ACT

To be eligible for benefits under the Social Security Act, a claimant must prove he or she

is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of Health

& Hum. Servs., 955 F.2d 552, 555 (8th Cir. 1992). Under the Social Security Act, a person is

disabled if she is unable “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). Accord Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The impairment must be

“of such severity that he [or she] is not only unable to do his [or her] previous work but cannot,

considering his [or her] age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy, regardless of whether such work

2 It appears that Plaintiff’s application was initially denied in July 2017 because Plaintiff was still working 40

hours a week at a subsidies rate that was above substantial gainful activity (“SGA”). (Tr. 261). Plaintiff filed a request

for reconsideration of the SGA denial. (Tr. 274).

exists in the immediate area in which he [or she] lives, or whether a specific job vacancy exists for

him [or her], or whether he [or she] would be hired if he [or she] applied for work.” 42 U.S.C.

§ 423(d)(2)(A).

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

evaluation process. 20 C.F.R. § 404.1520(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th

Cir. 2011) (discussing the five-step process). At Step One, the Commissioner determines whether

the claimant is currently engaging in “substantial gainful activity”; if so, then the claimant is not

disabled. 20 C.F.R. § 404.1520(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the Commissioner

determines whether the claimant has “a severe medically determinable physical or mental

impairment that meets the [twelve-month duration requirement in § 404.1509], or a combination

of impairments that is severe and meets the duration requirement”; if the claimant does not have a

severe impairment, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(ii); McCoy, 648 F.3d

at 611. To be severe, an impairment must “significantly limit[] [the claimant’s] physical or mental

ability to do basic work activities.” 20 C.F.R. § 404.1520(c). At Step Three, the Commissioner

evaluates whether the claimant’s impairment meets or equals one of the impairments listed in 20

C.F.R. Part 404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. § 404.1520(a)(4)(iii); McCoy,

648 F.3d at 611. If the claimant has such an impairment, the Commissioner will find the claimant

disabled; if not, the Commissioner proceeds with the rest of the five-step process. 20 C.F.R. §

404.1520(d); McCoy, 648 F.3d at 611.

Prior to Step Four, the Commissioner assesses the claimant’s residual functional capacity

(“RFC”), 20 C.F.R. § 404.1520(a)(4), which is “the most [a claimant] can still do despite [his or

her] limitations.” 20 C.F.R. § 404.1545(a)(1). See also Moore v. Astrue, 572 F.3d 520, 523 (8th

Cir. 2009). At Step Four, the Commissioner determines whether the claimant can return to his or

her past relevant work, by comparing the claimant’s RFC with the physical and mental demands

of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f); McCoy, 648

F.3d at 611. If the claimant can perform his or her past relevant work, the claimant is not disabled;

if the claimant cannot, the analysis proceeds to the next step. 20 C.F.R. §§ 404.1520(a)(4)(iv),

404.1520(f); McCoy, 648 F.3d at 611. At Step Five, the Commissioner considers the claimant’s

RFC, age, education, and work experience to determine whether the claimant can make an

adjustment to other work in the national economy; if the claimant cannot make an adjustment to

other work, the claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),

404.1560(c)(2); McCoy, 648 F.3d at 611.

Through Step Four, the burden remains with the claimant to prove that he or she is disabled.

Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,

given the claimant’s RFC, age, education, and work experience, there are a significant number of

other jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d

1062, 1064 (8th Cir. 2012); 20 C.F.R. § 404.1560(c)(2).

III. THE ALJ’S DECISION

Applying the foregoing five-step analysis, the ALJ in this case found, at step one, that

Plaintiff has not engaged in substantial gainful activity since September 2, 2016, the alleged onset

date. (Tr. 202). At step two, the ALJ found that Plaintiff had the following severe impairments:

degenerative disc disease and spondylosis of the lumbar spine, obesity, diabetes mellitus, and

osteoarthritis of the left shoulder. (Tr. 202). At step three, the ALJ found that Plaintiff did not have

an impairment or combination of impairments that meets or medically equals the severity of one

of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr. 204).

The ALJ found that Plaintiff had the following RFC:

[Plaintiff can] perform sedentary work as defined in 20 [C.F.R. §] 404.1567(a) in

that he can lift or carry 10 pounds occasionally. He can stand and/or walk 2 hours

in an 8-hour workday and sit up to 6 hours in an 8-hour workday. [Plaintiff] cannot

climb ladders, ropes, scaffolds, ramps or stairs. He can occasionally balance and

stoop, but never kneel, crouch, and crawl. He should be allowed to use a cane to

assist with ambulation. He should also be allowed to alternate between sitting and

standing up to every 45 minutes if necessary. He cannot push or pull with the left

lower extremity. He is limited to occasional overhead reaching with the left upper

extremity. He should avoid concentrated exposure to excessive vibration,

unprotected heights, and hazardous machinery.

(Tr. 204-05). Moving to step four, the ALJ found that Plaintiff is unable to perform any past

relevant work. (Tr. 208). At the fifth and final step of the sequential inquiry, after considering

Plaintiff’s age, education, work experience, and RFC, the ALJ relied on the testimony of the

vocational expert and found that there are jobs that exist in numbers in the national economy that

Plaintiff can perform such as ampoule sealer, final assembler, and circuit board assembler. (Tr.

209). The ALJ concluded that Plaintiff “has not been under a disability . . . from September 2,

2016, through the date of th[e] decision[.]” (Tr. 210).

IV. DISCUSSION

Plaintiff challenges the ALJ’s Decision on multiple grounds. Because I find the pain

evaluation, where the ALJ rejected Plaintiff’s allegations regarding the intensity, persistence, and

limiting effects of his symptoms, is not supported by substantial evidence, the Court will remand

on this issue. As such, the Court need not reach Plaintiff’s remaining arguments.

A. Standard for Judicial Review

The decision of the Commissioner must be affirmed if it “complies with the relevant legal

requirements and is supported by substantial evidence in the record as a whole.” Pate-Fires v.

Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Ford v. Astrue, 58 F.3d 979, 981 (8th Cir.

2008)); see also 42 U.S.C. § 405(g). “Under the substantial-evidence standard, a court looks to an

existing administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the

agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is less than a

preponderance, but is enough that a reasonable mind would find it adequate to support the

Commissioner’s conclusion.” Pate-Fires, 564 F.3d at 942 (quotation marks omitted). See also

Biestek, 139 S. Ct. at 1154 (“Substantial evidence . . . means—and means only—’such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’”) (quoting

Consol. Edison, 305 U.S. at 229).

In determining whether substantial evidence supports the Commissioner’s decision, the

court considers both evidence that supports that decision and evidence that detracts from that

decision. Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012). However, the court “‘do[es]

not reweigh the evidence presented to the ALJ, and [it] defer[s] to the ALJ’s determinations

regarding the credibility of testimony, as long as those determinations are supported by good

reasons and substantial evidence.’” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890, 894

(8th Cir. 2006)). “If, after reviewing the record, the court finds it is possible to draw two

inconsistent positions from the evidence and one of those positions represents the ALJ’s findings,

the court must affirm the ALJ’s decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011)

(quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).

B. Opinion Evidence

Courts normally defer to an ALJ’s credibility determination. See Halverson v. Astrue, 600

F.3d 922, 932 (8th Cir. 2010). Per 20 C.F.R. § 404.1529, when evaluating disability, the SSA will

“consider all your symptoms, including pain, and the extent to which your symptoms can

reasonably be accepted as consistent with the objective medical evidence and other evidence.” The

Eighth Circuit has held that the ALJ must consider the five Polaski factors when considering a

claimant’s subjective descriptions of disabling pain: (1) the claimant’s daily activities; (2) the

duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage,

effectiveness, and side effects of medication; and (5) functional restrictions. Grindley v. Kijakazi,

9 F.4th 622, 630 (8th Cir. 2021) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).

But the ALJ is “not required to discuss each Polaski factor so long as he acknowledges and

considers the factors before discounting a claimant’s subjective complaints.” Halverson v. Astrue,

600 F.3d 922, 932 (8th Cir. 2010) (citation omitted).

“After careful consideration of the evidence,” the ALJ concluded that Plaintiff’s

“statements concerning the intensity, persistence and limiting effect of [his] symptoms are not

entirely consistent with the medical evidence and other evidence in the record[.]” (Tr. at 205).

Prior to this statement, and consistent with the Eighth Circuit’s requirements, the ALJ recognized

his obligation to assess Plaintiff’s symptoms based on the requirements of 20 C.F.R. § 404.1529

and SSR 16-3p. (Id.). See Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (citation omitted)

(recognizing 20 C.F.R. § 404.1529 “largely mirror[s] the Polaski factors”).

Throughout the relevant discussion and analysis, the ALJ noted – among other things –

that Plaintiff continued to receive conservative treatment, had not been referred for surgery,

objective imaging remained stable and was inconsistent with disabling pain, that Plaintiff’s pain

was well controlled, and there was improvement in his left leg symptoms. Based on these findings,

the ALJ found Plaintiff’s subjective complaints of pain were not consistent with the objective

medical evidence of record.

After the ALJ’s decision in October 2019, Plaintiff submitted to the Appeals Council

numerous additional medical records, some dated prior to the ALJ’s decision and some dated after

it. With respect to some of the records, the Appeals Council found that they did not show a

reasonable probability that they would change the outcome of the decision. (Tr. 2). With respect

to others, the Appeals Council found that they did not relate to the period at issue and therefore

did not affect the decision about whether he was disabled beginning on or before October 22, 2019.

(Id.). The Appeals Council will review a case if it “receives additional evidence that is new,

material, and relates to the period on or before the date of the hearing decision, and there is a

reasonable probability that the additional evidence would change the outcome of the decision.” 20

C.F.R. § 404.970(a)(5) (effective Jan. 17, 2017 to Dec. 15, 2020). Where, as here, “the Appeals

Council denies review of an ALJ’s decision after reviewing new evidence, [the Court does] not

evaluate the Appeals Council’s decision to deny review, but rather [it] determine[s] whether the

record as a whole, including the new evidence, supports the ALJ’s determination.” McDade v.

Astrue, 720 F.3d 994, 1000 (8th Cir. 2013) (quoting Cunningham v. Apfel, 222 F.3d 496, 500 (8th

Cir. 2000)). Accord Perks v. Astrue, 687 F.3d 1086, 1093 (8th Cir. 2012). A remand is proper only

if the new evidence is relevant and probative of the claimant’s condition for the time period for

which the benefits were denied. Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002). See also

Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991) (holding that new evidence is relevant only

if it relates to claimant’s condition on or before the ALJ’s decision).

A September 2019 medical record indicates that physical therapy was not a success, and

the steroid injections did not help. (Tr. 90). Another visit from September 2019 with Dr.

Malbrough notes that conservative treatment does not appear to be working, and he recommends

surgery to relieve Plaintiff’s symptoms. (Tr. 219). Several records note that Plaintiff’s pain is no

longer well managed by his current medications and that Plaintiff wished in trying a longer

duration pain medication for consistent pain relief, with the physical exam noting that Plaintiff

periodically repositioned during the exam encounter. (Tr. 10-11, 80). In January 2020, Dr. Voges

recommended another MRI and indicated that Plaintiff will likely need to see a neurosurgeon or

“orthospine” surgeon. (Tr. 97). Plaintiff underwent another MRI in June 2020 with significant

findings, and it also noted a new right-sided posterior localized disc protrusion that appeared new

since a March 2019 imaging. (Tr. 51). A July 20, 2020 record noted that chronic degenerative disc

disease was found on imaging and that Plaintiff was scheduled with neurosurgery. (Tr. 19).

Further, a July 23, 2020 appointment noted that Plaintiff’s back pain symptoms “have been present

since a fall in September 2016.” (Tr. 23). This same visit also showed diminished findings in the

neurological portion of the physical exam and Dr. Sweeney finding that Plaintiff “has failed

conservative treatment options thus far and has obvious neurological deficits”. (Tr. 31). Dr.

Sweeney goes on to state that he recommends surgery. (Tr. 31). This new evidence is probative of

Plaintiff’s spine condition before October 2019. The Court does also note that some of the physical

exams throughout the above time period do appear rather normal.

However, given the ALJ’s reasoning for discounting Plaintiff’s subjective pain allegations,

the Court finds that this case should be remanded to allow the ALJ the opportunity to consider the

objective medical record of evidence and make a new finding about Plaintiff’s subjective pain

allegations. For example, the ALJ relied on medical records of Dr. Malbrough showing

conservative treatment, (Tr. 206), but later records from this same doctor contradict the earlier

records showing Plaintiff did not respond well to injections and surgery was a better option moving

forward. That a surgeon a month before the ALJ’s decision, as well as several months after,

determined Plaintiff’s back issues were sufficiently severe after failed conservative treatment to

require surgical repair could very well inform the ALJ’s analysis about the weight he gave to

Plaintiff’s subjective complaints.

Upon reconsideration of appropriate evidence, the ALJ may well determine that Plaintiff

is not disabled. The Court is aware that upon remand, the ALJ’s decision as to non-disability may

not change after properly considering all evidence of record and undergoing the required analysis,

but the determination is one the Commissioner must make in the first instance. See Buckner v.

Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000) (when a claimant appeals from the Commissioner’s

denial of benefits and the denial is improper, out of an abundant deference to the ALJ, the Court

remands the case for further administrative proceedings); Leeper v. Colvin, No. 4:13-CV-367

ACL, 2014 WL 4713280 at *11 (E.D. Mo. Sept. 22, 2014) (ALJ duty to make disability

determination).

V. CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that the relief requested in Plaintiff's Complaint and Brief

in Support of Complaint is GRANTED in part and DENIED in part. (Docs. 1, 27).

IT IS FURTHER ORDERED that the decision of the Commissioner is REVERSED and

REMANDED for further proceedings.

IT IS FURTHER ORDERED that a Judgment of Reversal and Remand will be filed

contemporaneously with this Memorandum and Order remanding this case to the Commissioner

of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4.

□□ (SJl__

NANNETTE A. BAKER

UNITED STATES MAGISTRATE JUDGE

Dated this 29th day of September, 2022.

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