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Schmitz v. Berryhill

United States District Court, D. Nebraska

March 25, 2019

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Richard G. Kopf Senior United States District Judge

         Plaintiff 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.[1] For the reasons discussed below, the Commissioner's decision will be reversed and the case will be remanded for further proceedings.


         Plaintiff 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).[2] She indicated her disability was caused by multiple sclerosis (“MS”) and possible heart problems (Filing 14-6, p. 6).

         Plaintiff's 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 hearing.

         Testimony was also provided by a vocational expert, Stephen Kuhn. See Transcript (Filing 14-2, pp. 46-80).

         The ALJ 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, [3] the ALJ made the following findings:

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) (Exh. 4D/01).
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 416.969(a)).
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)).

         On 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).

         Plaintiff 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).

         On 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).

         II. ISSUES

         Plaintiff 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).


         Arthur 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”.[4] 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”.[5] 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 on RFC.

(Filing 14-3, p. 5).

         The following summation of Plaintiff's medical records appears as part of the ALJ's step-four analysis of Plaintiff's RFC:

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).[6]
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).[7]
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).[8]
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” (Exh. 7F/01).[9]
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).[10]
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).[11] 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[12] 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. 12F/04).[13]
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. 10F/19).
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. 11F/11).[14]
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 (Exh. 10F/41).
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. 13F/05).[15]
On January 4, 2017, the claimant presented to Dr. Zabad for a follow up exam (Exh. 12F/17).[16] 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[17] and her ...

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