United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
brings this suit to challenge the Social Security
Commissioner's final administrative decision denying her
application for supplemental security income
(“SSI”) under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381-1383f. For the reasons
discussed below, the Commissioner's decision will be
reversed and the case will be remanded for further
is currently 37 years old. In her application for SSI
disability benefits, which was filed on February 5, 2015,
Plaintiff claimed a disability onset date of June 1, 2013
(Filing 14-5, pp. 2). She indicated her disability was caused by
multiple sclerosis (“MS”) and possible heart
problems (Filing 14-6, p. 6).
application was denied initially on April 20, 2015 (Filing
14-3, pp. 2-11; Filing 14-4, pp. 4-12), and upon
reconsideration on June 5, 2015 (Filing 14-3, pp. 12-21;
Filing 14-4, pp. 16-24). Following these denials, Plaintiff
requested an administrative hearing (Filing 14-4, pp. 25-27).
David G. Buell, an administrative law judge
(“ALJ”), conducted a hearing on April 24, 2017.
Plaintiff was represented by counsel and testified at the
was also provided by a vocational expert, Stephen Kuhn.
See Transcript (Filing 14-2, pp. 46-80).
issued an unfavorable decision on July 25, 2017 (Filing 14-2,
pp. 18-37). Using the 5-step sequential analysis prescribed
by Social Security regulations,  the ALJ made the following
1. The claimant has not engaged in substantial gainful
activity since December 16, 2014, the application date (20
CFR 416.971 et seq.) (Exh. 11E/01; 14E/01).
2. The claimant has the following severe impairments:
multiple sclerosis and degenerative disc disease of the
cervical spine (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as defined in
20 CFR 416.967(a) except the claimant can occasionally stoop,
kneel, crouch, and crawl. The claimant can perform work that
does not require exposure to sustained, concentrated hot, and
cold temperature, vibration, fumes, or dust. The claimant can
perform work that does not expose the claimant to hazards,
such as climbing ladders, work at unprotected heights, or
operating motor vehicles. The claimant would require the use
of a cane but was able to continue the normal job duties,
including the lifting and carrying of objects.
5. The claimant has no past relevant work (20 CFR 416.965)
6. The claimant ... was 33 years old, which is defined as a
younger individual age 18-44, on the date the application was
filed (20 CFR 416.963).
7. The claimant has at least a high school education and is
able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the
claimant does not have past relevant work (20 CFR 416.968).
9. Considering the claimant's age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 CFR 416.969 and
10. The claimant has not been under a disability, as defined
in the Social Security Act, since December 16, 2014, the date
the application was filed (20 CFR 416.920(g)).
(Filing 14-2, pp. 23-33 (discussion under paragraphs 3, 4, 5,
and 9 omitted)).
August 8, 2017, Plaintiff requested review of the ALJ's
decision by the Appeals Council of the Social Security
Administration (Filing 14-4, pp. 77-78). The request for
review was denied on March 29, 2018 (Filing 14-2, pp. 5-10).
The ALJ's decision thereupon became the final decision of
the Commissioner. See Van Vickle v. Astrue, 539 F.3d
825, 828 (8th Cir. 2008).
commenced this action on May 29, 2018 (Filing 1), after
obtaining an extension of time from the Appeals Council
(Filing 14-2, pp. 2-4). The Commissioner filed an answer
(Filing 13) and the administrative record (Filing 14) on
November 14, 2018, after obtaining an extension of time from
the court (Filing 12).
December 12, 2018, Plaintiff filed a motion for an order
reversing the Commissioner's decision (Filing 16) and a
supporting brief (Filing 17). On January 14, 2019, the
Commissioner filed a cross-motion for affirmance (Filing 18)
and a supporting brief (Filing 19). Plaintiff filed a reply
brief (Filing 20) on January 28, 2019, and the matter is now
ripe for decision. See General Order No. 2015-05,
In the Matter of Procedures for Social Security
Cases (Filing 4).
argues the ALJ's decision should be reversed, and the
case remanded, because (1) the ALJ failed to consider at the
third step of the sequential analysis whether Plaintiff's
multiple sclerosis met or equaled Listing 11.09, (2) the ALJ
failed to develop the record and erroneously relied upon his
own lay judgment and an outdated state agency opinion to
reject the treating sources' opinions, (3) the ALJ's
step-4 residual functional capacity (“RFC”)
finding failed to include all of Plaintiff's limitations,
and (4) the ALJ was not properly appointed under the
Constitution to hear and decide the case (Filing 17, p. 1).
The Commissioner disputes Plaintiff's first three
arguments and contends Plaintiff forfeited her Appointments
Clause claim by failing to raise the issue at any point in
the administrative proceedings (Filing 19, p. 1).
Weaver, D.O., the state agency medical expert who reviewed
Plaintiff's medical records on April 14, 2015, made the
following findings of fact:
AOD is 6/1/13; POD is 12/16/14. Claimant asserts to have had
MS x 10-11 years; however, no there was no confirmation of
that. Claimant is currently pregnant. She last delivered
11/5/13. At 1/10/14 follow-up there was no mention of any
NMSK issues, nor at 1/25/14 exam for a toe laceration. Brain
MRI 3/4/14 showed some demyelinating lesions suspicious for
MS, which is reasonable EOD in the event of an allowance.
There is insufficient evidence to determine claimant's
condition from AOD to EOD. At 8/11/14 Community Hospital (CH)
visit for urinary & BM issues, TS states claimant
“was never definitely diagnosed with MS”. TS
initiated evaluation, but claimant “left before (TS)
could complete current evaluation” and “did not
return”. Claimant was seen in ER 9/20/14 for an
URI. She is on no MS medication, and “has not seen a
neurologist in two years”. Exam showed “equal
strength and movement in upper and lower extremities
bilaterally”. At 11/3/14 McCook Clinic (MC) exam
11/3/14 claimant presented with a cane, reporting balance
issues with some weakness. Exam showed UE & LE strength
remained equal and symmetric. At 11/14/14 MC recheck claimant
“feels well with minor complaints” (balance and
vision, related to MS). Exam noted a “normal
gait”. At 11/19/14 Neurology Associates exam she
reports intermittent general weakness with climbing and
walking most notable for a “few months”; however,
“she did not seek medical attention”. Eye exam
was normal with no visual field deficit. VA 20/70 OD; 20/40
OS. Motor strength was normal in lower arms. In LE strength
was 4/5 with some decreased vibratory sensation. Gait was
unsteady, but no ataxia. Conservative management due to 10
weeks pregnant. 11/28/14 C & T-spine MRI reveals
demyelination plaques. By 12/6/14 NA recheck she had no new
changes. She still felt off balance, but TS notes “gait
is stable” and balance was “currently
improving”. No. aphagia or dysarthria. U.S. strength
remains 5/5; RLE 4 5, LLE 4 with reduced temperature
sensitivity. Impression is relapsing-remitting MS. NA entry
12/15/14 states “her symptoms have been stable”.
At 1/11/15 NA exam there are no new changes and her numbness
was “improved”, and “overall motor strength
has improved”, with LE strength now 5/5 except RT hip
& foot. NA records 2/9/15 state “her leg weakness
is stable”. Claimant additionally implies she is
disabled due to cardiac issues. At 11/19/14 NA visit she had
no palpitations or difficulty breathing. CH notes 12/2/14
that claimant had been on metoprolol, but quit 6-8 weeks ago
with “no problems since she stopped”. EKG was NSR
with no changes from previous. P=76. Further, “stress
EKG showed no abnormalities”. This allegation is not
MDI. Claimant appears to have had a flare of MS in 2014, but
recently shows improvement with conservative therapy. The
extent of some limitations in ADLs appear greater than
anticipated from recent MER. With regular medical care,
claimant appears currently likely capable of activity listed
(Filing 14-3, p. 5).
following summation of Plaintiff's medical records
appears as part of the ALJ's step-four analysis of
In terms of the claimant's alleged multiple sclerosis and
degenerative disc disease, on March 4, 2014, the claimant had
an MRI of the brain and orbits before and after IV contrast
that found “multiple bilateral white matter
hyperintense foci, some of which enhance and is most
suspicious for active multiple sclerosis”. There were
“normal orbits, optic nerves, and optic chiasm, with
demyelinating lesion along with the right trigone which could
affect the optic tract and could cause a left-sided
homonymous hemianopsia”, but would need to “be
confirmed with ophthalmologic visual field defect
evaluation” (Exh. 1F/12).
The claimant also had an MRI of the cervical spine on March
4, 2014, that showed multiple foci of abnormal signal in the
cervical cord, most consistent with demyelination plaque.
There was also mild to moderate volume central disc extrusion
at ¶ 5-C6 with small disc protrusion at ¶ 3-C4
(Exh. 1F/05). The claimant also showed mild thoracic spine
degenerative changes (Exh. 1F/06).
On September 20, 2014, the claimant presented to the
emergency department with chest pain that was persistent from
the previous night to presentation (Exh. 2F/06). Her physical
exam showed no abnormalities and her cardiac enzyme blood
work was normal, as was her chest x-ray (Exh. 2F/06-07). She
was discharged with instructions to use an albuterol inhaler
for an upper respiratory infection (Exh. 2F/07).
On December 17, 2014, the claimant presented to Anil Kumar,
M.D., for an exam due to numbness in the legs and hands (Exh.
4F/06). The claimant's physical exam showed she could get
in and out of a chair with minimal support and overall her
gait was stable and she could walk with minimal assistance
(Exh. 4F/06). Her deep tendon reflexes were brisk throughout
and her upper extremity strength was full (Exh. 4F/06). Her
lower extremity strength was only slightly reduced and she
had good sensation in most areas (Exh. 4F/06).
On November 25, 2014, the claimant presented to Steven
Thompson, P.T., stating she was “pretty sure that she
has MS and just has not gotten the official diagnosis
yet” (Exh. 1F/07). The claimant ambulated with a cane
with a neurologically weak type gait pattern but could rise
and sit 10 times in 30 seconds from a seated position (Exh.
1F/07). She was able to complete single leg stances for 16
seconds (Exh. 1F/07).
On December 2, 2014, the claimant presented to the emergency
department with shortness of breath (Exh. 2F/01). She stated
she was 13 weeks pregnant and had multiple sclerosis (Exh.
2F/01). The claimant's physical exam showed that her
lungs were clear to auscultation anteriorly and posteriorly
bilaterally (Exh. 2F/01). The claimant's chest x-ray was
normal and the remainder of her physical exam showed she had
no other abnormalities in her mouth, nose, or throat (Exh.
2F/01). The claimant was instructed to stop smoking, eat
regular meals, drink enough fluid, and take her prenatal
vitamins (Exh. 2F/02).
The claimant's physical exam with Dr. [Anil] Kumar on
January 12, 2015, showed she had a broad based gait and used
a cane (Exh. 4F/10). She showed either full or nearly full
strength in the lower extremities which was noted to be an
improvement (Exh. 4F/10). The claimant showed impaired
coordination in finger-to-nose testing but she showed full
strength in her upper extremities with no pronator drift or
tremor (Exh. 4F/10). The claimant was put on a conservative
medication management program and she was noted to be
improving in her symptoms (Exh. 4F/10).
On March 3, 2015, the claimant presented to Dr.
[sic] Thompson for physical therapy ambulating with
two canes but was recommended for crutches instead (Exh.
7F/01). The claimant's physical exam showed that her
“gait is somewhat unsteady and she was characteristic
lack of dorsiflexor strength and her feet tend to land very
flat rather than with a normal heel toe type fashion”
The claimant reported [to PT Thompson] on March 12, 2015,
that she was using crutches and they were “working much
better for her” and she was able to complete 45 minutes
of therapeutic exercise” (Exh. 7F/04).
On March 18, 2015, the claimant presented to Rana Zabad,
M.D., for management of her multiple sclerosis (Exh. 12F/01).
The claimant reported that she had numbness and weakness in
her upper extremities and was nine weeks pregnant (Exh.
12F/01). Her physical exam showed that she had
normal strength, bulk, and note in her arms her deep tendon
reflexes were “pathologically brisk” (Exh.
12F/03). Her lower extremity strength showed only a slight
reduction in the right side hip flexors, knee flexors, and
big toe extensors [4/5], but full strength in the knee
extensors, dorsiflexors, and plantaflexors (Exh. 12F/03). The
claimant had full strength in her left lower extremities in
all areas (Exh. 12F/03). Her gait was broad based and she
could not heel or toe walk and was considered a fall risk
(Exh. 12F/03). The claimant use[d] crutches to
walk and her sensory exam showed subjective
sensory loss in stocking and gloves (Exh. 12F/03). She was
asked to return in three to six months (Exh.
On July 10, 2015, the claimant presented for a MRI of the
brain to be compared to her March 2014 MRI (Exh. 10F/16). The
claimant had new focal areas of active demyelination
involving the middle third of the right corona radiata and
resolution of previous foci of active demyclination that were
seen in March 2014 (Exh. 10F/17).
Then on July 10, 2015, the claimant had an MRI of the
cervical spine that was also compared to earlier images (Exh.
10F/18). The claimant had no significant change from her
prior image at the C5-C6 area, that showed focal central disc
extrusion with moderate canal stenosis (Exh. 10F/19). The
claimant had multifocal demyelinating disease throughout the
cervical spinal cord as well as involving the structures in
the posterior fossa and upper thoracic cord (Exh. 10F/19).
The claimant had no new lesions and the pattern of disease
had not significantly changed from her prior image (Exh.
On August 25, 2016, the claimant presented to the emergency
department with complaints of pain after a fall (Exh.
10F/37). Her physical exam showed generalized tenderness all
along the spine and paravertebrally (Exh. 10F/37). The
claimant was noted to have excellent biceps, triceps, hand
grasp strength as well as equal and strong reflexes (Exh.
10F/37). Her CT scan of the cervical and thoracic spine
showed no acute abnormalities (Exh. 10F/37). She was told to
put ice packs on the sore areas, rest, and take over the
counter medication for any pain (Exh. 10F/37).
On September 1, 2016, the claimant presented to David Powell,
P.A.C., for an exam (Exh. 11F/11). The claimant had slightly
reduced strength in her right lower extremity and moderately
reduced strength in her left lower extremity (Exh. 11F/12).
The claimant was noted to have a previous fall but Mr. Powell
stated her “overall function is improving” (Exh.
On September 21, 2016, the claimant had a MRI of the brain
that showed multifocal white matter lesions consistent with
the history of multiple sclerosis (Exh. 10F/41). There was an
overall interval increase in number however. Although the
previous right centrum semiovale enhancing lesions no longer
enhance, there is a new enhancing left periventricular lesion
The claimant had a stable focal lesion of the thoracic cord
at ¶ 6-T7 but there was no abnormal enhancing lesions of
the thoracic cord or vertebrae (Exh. 10F/44). She had a
stable shallow disc protrusion at ¶ 7-T8 (Exh. 10F/44).
A CT scan of her cervical spine diffuse abnormal signal
throughout the entire cervical and upper thoracic cord with
interval progression consistent with a history of multiple
sclerosis (Exh. 10F/43). There was no abnormal enhancement
(Exh. 10F/43). The claimant had moderate central disc
protrusions at ¶ 3-C4 and C5-C6 causing mild to moderate
central stenosis slightly progressed from the prior exam on
July 10, 2015 (Exh. 10F/43).
On November 29, 2016, David Powell, stated the claimant
“will be discharged from services on the 30th due to
meeting goals and HH has not been able to get into the home
for the past two weeks, [the claimant] did agree to services
today and discharging on the 30th (Exh.
On January 4, 2017, the claimant presented to Dr. Zabad for a
follow up exam (Exh. 12F/17). The claimant reported that she
had a bowel movement every eight days and “she cannot
walk” (Exh. 12F/17). The claimant reported “She
cannot do anything” and “laying in bed she falls
out” (Exh. 12F/17). Her physical exam showed that she
had good vision and continued to have normal strength, bulk,
and tone in her upper extremities (Exh. 12F/18). The claimant
showed no changes in the deep tendon reflexes and a slight
reduction in the strength of her lower extremities (Exh.
12F/19). Her gait was unchanged and her ...