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Kicker v. Saul

United States District Court, E.D. Missouri, Eastern Division

September 23, 2019

DANIELLE KICKER, Plaintiff,
v.
ANDREW M. SAUL, [1]Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE

         This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of Defendant Andrew M. Saul, Commissioner of Social Security (the “Commissioner”) denying the application of Plaintiff Danielle Kicker (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (the “Act”). The parties consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). (Doc. 8). 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 March 2015, Plaintiff applied for DIB and SSI, alleging an inability to work since January 11, 2015. (Tr. 182-97). Her applications were initially denied. (Tr. 118-24). On August 27, 2015, Plaintiff filed a Request for Hearing by Administrative Law Judge (“ALJ”) (Tr. 125-26). A hearing was held before the ALJ on May 1, 2017. (Tr. 45-97). On the same day, Plaintiff amended her alleged disability onset date to August 5, 2015. (Tr. 225). On October 31, 2017, the ALJ issued an unfavorable decision. (Tr. 14-39). On October 31, 2017, Plaintiff filed a Request for Review of Hearing Decision with Defendant agency’s Appeals Council. (Tr. 181). On May 9, 2018, the Appeals Council denied Plaintiff’s Request for Review. (Tr. 2-7). The decision of the ALJ stands as the final decision of the Commissioner of the Social Security Administration.

         II. Factual Background

         On May 1, 2017, Plaintiff testified at the hearing before the ALJ as follows. Plaintiff was born on October 17, 1977. (Tr. 51). She drives on a daily basis, but does not drive long distances, because her feet will fall asleep. (Tr. 51). She has three children, aged 6, 10, and 18, and she lives with her mother, her grandmother, and her two younger children. (Tr. 52). She has completed some beauty college. (Tr. 53). Her most recent job was verifying applications for Obamacare. (Tr. 53). She stopped working there in August 2015, when she went out for back surgery, and she was on short-term disability in late 2015. (Tr. 54). She never returned to work after her back surgery. (Tr. 55). Plaintiff has also worked in the past as a preschool teacher, a manager in retail, and a pharmacy tech. (Tr. 77-80).

         Plaintiff testified that the conditions that keep her from going back to work are her feet, her hands, and her back. (Tr. 55). Her pain in her right foot is at a six or seven on a scale of one to ten, and it has been going on since late 2016. (Tr. 56). Plaintiff also testified that her hands going to sleep has been happening for about six months. (Tr. 57). With regard to her back, Plaintiff testified that since her September 2015 back surgery, she has back pain, it “feels like everything is out of order again, ” she sometimes cannot stand up straight, and she sometimes cannot sit or stand too long. (Tr. 57-58). She testified that she had some small improvement in her pain after surgery, but by the time of the hearing it was worse than it was before. (Tr. 58-59). Before surgery, she estimated her pain level to be about a five or six. (Tr. 58). At the time of the hearing, her back pain was a six to a seven. (Tr. 59). Her back pain is worsened by being on her feet and relieved by sitting down with her feet up on a massaging chair. (Tr. 60).

         Plaintiff sees a psychiatrist, Dr. Aurora, every three months. (Tr. 60-61). Plaintiff takes medications including lithium, hydroxyzine, carbamazepine, lorazepam, and prasozine for nightmares. (Tr. 64-65). She testified that she does not have any side effects from her medications. (Tr. 65). Plaintiff testified that her memory is “pretty good, ” her concentration is fair, and she remembers to take her medications each day. (Tr. 66). She gets nervous around crowds of people but gets along pretty well with family and friends. (Tr. 66).

         With regard to the medical records, the Court accepts the facts as reflected in the parties’ respective statements of facts. The Court will cite to specific portions of the record as needed in the discussion below.

         III. 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 & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled a person who 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); 1382c(a)(3)(A); see also 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 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); 1382c(a)(3)(B).

         To determine whether a claimant is disabled, the Commissioner engages in a five-step evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(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), 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the Commissioner determines whether the claimant has a severe impairment, which is “any impairment or combination of impairments which significantly limits [the claimant’s] physical or mental ability to do basic work activities”; if the claimant does not have a severe impairment, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611. 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), 416.920(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), 416.920(d); McCoy, 648 F.3d at 611.

         Prior to Step Four, the Commissioner must assess the claimant’s “residual functional capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e), 416.945(a)(1). 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), 416.920(a)(4)(iv), 416.920(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. Id. 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), 416.920(a)(4)(v), 416.920(g), 416.960(c)(2); McCoy, 648 F.3d at 611.

         Through Step Four, the burden remains with the claimant to prove that he 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 ...


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