Killian v. Colvin

Filing 18

MEMORANDUM: For the reasons set forth above, the decision of the Commissioner of Social Security is reversed under Sentence 4 of 42 U.S.C. § 405(g) and remanded for further proceedings. The court instructs that on remand (1) the ALJ must reconsi der the Step Three determination and, regardless of the decision on this issue, provide a legally sufficient narrative discussion, and (2) the ALJ must reassess plaintiff's RFC, considering the relevant medical record and other evidence; if needed, the ALJ must acquire a consulting medical opinion to on the plaintiff's RFC. An appropriate Judgement Order is issued herewith. Signed by Magistrate Judge David D. Noce on 5/24/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BRANDI KILLIAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 1:15 CV 57 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the application of plaintiff Brandi
Killian for disability insurance benefits (DIB) and supplemental security income benefits
(SSI) under Titles II and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401,
1381. The parties have consented to the exercise of plenary authority by the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth
below, the decision of the Administrative Law Judge is reversed and remanded.

I. BACKGROUND
Plaintiff was born on March 21, 1982. (Tr. 31.) She filed her applications for DIB
and SSI on October 2, 2011. (Tr. 13.) In both applications, plaintiff alleged an onset date
of August 2, 2011 and alleged disability due to myasthenia gravis (MG).1 (Tr. 35, 209.)

1

Myasthenia gravis is a chronic condition that causes muscles to tire and weaken easily. It is
most likely to develop in women aged between twenty and forty. Brain & Nervous System
Health
Center,
Understanding
Myasthenia
Gravis
-the
Basics,
http://www.webmd.com/brain/understanding-myasthenia-gravis-basics (last visited Mar. 7,
2016).

The claim was initially denied on December 9, 2011. Thereafter, plaintiff filed a written
request for a hearing before an Administrative Law Judge (ALJ) on January 18, 2012.
The ALJ held a video hearing on September 24, 2013, and on October 4, 2013, the
ALJ decided plaintiff was not disabled. (Tr. 10-12.) On February 9, 2015, the Appeals
Council denied plaintiff’s request for review. (Tr. 21.) The decision of the ALJ is
therefore the final decision of the Commissioner.

II. MEDICAL AND OTHER HISTORY
In July and August 2011, at age 29, plaintiff was seen on several occasions in the
emergency rooms at Jackson Family Care and Southeast Missouri Hospital for facial
weakness and being unable to voluntarily close her eyes. (Tr. 309-10, 428-29.) She
reported frequent mild headaches, blurred vision, and drooping on the left side of her
face. (Tr. 358.) She reported no tingling, numbness, or muscle weakness. (Id.)
On August 2, 2011, a laboratory testing revealed that plaintiff’s antibodies were
markedly elevated, and she was treated by Randall Stahly, D.O., for Grave’s disease.2
(Tr. 307.)

During the examination, she demonstrated significant facial and eyelid

weakness, some 4/5 upper extremity weakness,3 and normal lower extremities strength.
(Id.) Plaintiff was diagnosed with MG associated with Grave’s disease. (Tr. 313.) She
was scheduled for a thymectomy4 and admitted to the hospital. (Tr. 307-08, 313.)

2

    Grave’s  disease  is  an  immune  system  disorder  that  results  in  hyperthyroidism.  
http://www.mayoclinic.org/diseases‐conditions/graves‐disease/basics/definition/con‐
20025811 (last visited May 21, 2016). 

3
When evaluating muscle strength, physiotherapists commonly use an Oxford Scale to grade
strength from zero to five, with five being full strength. A grade of 4/5 indicates that a patient
has a reduced muscle strength, but contraction can still move joints against some resistance.
UCSD Biochemical Genetics and Metabolomics Laboratory, Medical Research Council (MRC)
Scale for Muscle Strength, http://ucsdbglab.org/Tools/MuscleScales.htm (last visited Mar. 7,
2016).
4

Thymectomy, surgery to remove a thymoma, is typically performed to prevent the potential
spread of cancer. Brain & Nervous System Health Center, Understanding Myasthenia Gravis -2

On August 23, 2011, because she was diagnosed Grave’s disease, elevated
antibodies, and a possible thymoma,5 revealed by a CT scan, plaintiff underwent a
thymectomy. (Tr. 335.) On the following day, plaintiff had an appointment with Dr.
Stahly. She had some mild bifacial weakness which had improved from two weeks
before. (Tr. 311.) A motor examination demonstrated very subtle 4.5/5 weakness of the
shoulder girdles with 5/5 strength in her hand grips, forearms, and lower extremities.
(Id.)
On September 12, 2011, plaintiff’s examination by Dr. Stahly was unremarkable.
(Tr. 305.)

Dr. Stahly noted that plaintiff’s facial weakness had resolved, and she

demonstrated no obvious axial weakness or extremity weakness. (Id.)
On September 14, 2011, plaintiff visited Randy G. Brown, M.D. The doctor
found that plaintiff’s pre-operative symptoms had essentially resolved, and she had no
major complaints. (Tr. 295.)
On September 21, 2011, Dr. Stahly performed a follow-up examination and
observed that plaintiff had responded well to her thymectomy, and that she was relatively
symptom free. (Tr. 303.) Dr. Stahly released plaintiff to full duty at work as an office
manager. (Id.)
On January 16, 2012, plaintiff again visited Dr. Brown, who found that plaintiff’s
symptoms had resolved and she had no complaints. (Tr. 491.) The physician further
wrote that, overall, plaintiff was doing well, and she may resume activity as tolerated.
(Id.)
On February 1, 2012, plaintiff had her first visit with Ksenija Kos, M.D., at St.
John’s Mercy Medical Center, Division of Neurology, who became her treating
physician. Plaintiff had no symptoms of MG. (Tr. 406.) An examination revealed

the Basics, http://www.webmd.com/brain/understanding-myasthenia-gravis-basics (last visited
Mar. 7, 2016).
5

Thymoma is a tumor of the thymus, which about 15% of all MG patients have. Brain &
Nervous System Health Center, Understanding Myasthenia Gravis -- the Basics,
http://www.webmd.com/brain/understanding-myasthenia-gravis-basics (last visited Mar. 7,
2016). 
3

normal muscle tone, normal fine finger movement, and 5/5 strength without atrophy. (Tr.
407.) Dr. Kos recommended that plaintiff slowly taper Prednisone6 and restart taking
Mestinon.7 (Id.)
On March 21, 2012, plaintiff visited another physician, Charles J. Lastrapes Jr.,
D.O., at Cross Trails Medical Center of Cape Girardeau. Plaintiff’s examination was
essentially normal. Dr. Lastrapes diagnosed hyperthyroidism, allergic rhinitis, and MG
without exacerbation. (Tr. 389.)
On April 5, 2012, plaintiff returned to Dr. Kos. For the first time after her
thymectomy, plaintiff reported mild facial and tongue weakness. (Tr. 404.) Muscle tone
was normal, the physician diagnosed a 5/5 strength without atrophy, and normal fine
finger movements. (Id.) The physician recommended that plaintiff continue her current
dose of Prednisone and start taking CellCept.8 (Tr. 405.)
Plaintiff visited Dr. Lastrapes on May 16, 2012 complaining of symptoms. She
reported fatigue, blurred vision, headaches, etc. (Tr. 380-81.) The physician diagnosed
hyperthyroidism and MG without exacerbation. (Id.)
On August 6, 2012, plaintiff visited Dr. Kos and reported mild weakness of tongue
and throat muscles, and intermittent mild difficulty swallowing.

(Tr. 401.)

Upon

examination, plaintiff had mild facial weakness, but had full muscle strength and normal
fine finger movements. (Id.) Dr. Kos recommended a continued decreased dose of
Prednisone and an increased dose of CellCept. (Tr. 402.)

6

Prednisone is an oral steroid medication used to calm airway inflammation in a patient’s
asthma.
Asthma
Health
Center,
Prednisone
and
Asthma,
http://www.webmd.com/asthma/guide/prednisone-asthma (last visited Mar. 7, 2016).
7

Mestinon is used to improve muscle strength in patients with MG. It works by preventing the
breakdown of a certain natural substance in the patient’s body. WebMD, Drugs & Medications:
Mestinon, http://www.webmd.com/drugs/2/drug-3740/mestinon-oral/details (last visited Mar. 7,
2016).
8

CellCept is a medication most commonly used in MG to suppress the immune system. Brain &
Nervous System Health Center, How Is Myasthenia Gravis Diagnosed and Treated?
http://www.webmd.com/brain/understanding-myasthenia-gravis-treatment (last visited Mar. 7,
2016).
4

Plaintiff returned to Dr. Lastrapes on September 5, 2012. She reported being tired
all of the time, insomnia, and fatigue. (Tr. 376.) She also reported having difficulty
sleeping at night with increased headaches, even with the Ambien. (Id.) The doctor
repeated his diagnoses, and prescribed Ritalin,9 CellCept, and Prednisone. (Tr. 378.)
On February 11, 2013, upon examination by Dr. Kos, plaintiff was diagnosed with
bilateral 4/5 proximity muscle weakness along with moderate facial weakness. (Tr. 399.)
The doctor prescribed IVIg10 and stated that Ritalin helped plaintiff’s fatigue. (Tr. 400.)
During another visit with Dr. Kos on March 20, 2013, plaintiff was again diagnosed with
proximity muscle weakness and moderate facial weakness, but was also reported she
benefitted from IVIg and Ritalin. (Tr. 395-97.)
At Dr. Kos’s recommendation, plaintiff received infusions to treat her MG
symptoms. On May 26, 2013, plaintiff received an infusion, and reported increased
symptoms of blurred vision, throat weakness, and fatigue. (Tr. 441-43.) On June 26,
2013, a second infusion was performed.

Plaintiff again reported continued blurred

vision, daily weakness, and fatigue. (Tr. 436-38.)
On July 11, 2013, Dr. Kos completed a medical source statement and a MG
questionnaire. Dr. Kos opined that plaintiff could lift and carry five pounds frequently
and fifteen pounds occasionally; stand and walk for one hour; and, sit for one hour during
an eight-hour workday. (Tr. 409.) She had no difficulty pushing or pulling, but she
could never climb, stoop, or crawl. (Tr. 409-10.) She could occasionally balance, kneel,
crouch, reach, and handle objects. (Tr. 410.) She should avoid moderate exposure to
extreme cold and heat, and avoid any exposure to hazards or heights. (Id.) It was
unknown to the physician whether plaintiff needed to lie down or recline during the day,

9

Ritalin is used to treat attention deficit, it helps to increase a patient’s ability to concentrate, it is
also used to treat certain sleep disorders. WebMD, Drugs & Medications: Mestinon,
http://www.webmd.com/drugs/2/drug-9475/ritalin-oral/details (last visited Mar. 7, 2016).
10

IVIg is intravenous immunoglobulin. In severe cases, a MG patient will be prescribed IVIg,
which helps the patient with a weakened immune system fight off infections. WebMD, Drugs &
Medications: IVIg, http://www.webmd.com/a-to-z-guides/immunoglobulin-therapy (last visited
Mar. 7, 2016).
5

but he opined that plaintiff would experience a decrease in concentration, persistence,
pace, or other limitations “during exacerbation.” (Id.) (Dr. Kos did not explain or
specify what he meant by “exacerbation.”) In the MG questionnaire, Dr. Kos stated that
plaintiff had muscle weakness of her face, legs, and arms. (Tr. 412.) The physician
further opined that due to her MG, plaintiff had substantial muscle weakness during
repetitive activity, and she could not sustain work throughout a normal work day or week
because of her daily fatigue and weakness. (Id.)
Upon examination on September 16, 2013, Dr. Kos stated that plaintiff was doing
well.

(Tr. 495.)

Despite this, the physician still diagnosed 4/5 proximity muscle

weakness and moderate facial weakness. (Tr. 497.) It was further noted that plaintiff did
not tolerate IVIg well, the benefits from the infusion did not last long, and she developed
severe headaches. (Tr. 495.)
On August 27, 2014, Dr. Kos finished another medical source statement and a
migraine questionnaire. The physician opined that due to her muscle weakness, facial
weakness, throat weakness, blurred vision, and fatigue, plaintiff’s ability to work was
limited. (Tr. 516-18.) According to the statement, plaintiff could rarely lift twenty
pounds and only occasionally lift ten pounds. She could never stoop, crawl, or climb.
She could rarely twist, balance, or crouch. (Tr. 517.) She had no limitation in reaching
or handling objects. But the doctor stated that plaintiff could sit less than two hours and
stand one hour during an eight-hour workday. (Id.) In the migraine questionnaire, the
doctor wrote that plaintiff’s migraines were generally controlled with medication. (Tr.
517.) She could not function in a work setting when a migraine headache occurred,
which could happen as often as once a week or as infrequently as once a month. Plaintiff
could return to work in two to five days after a migraine. (Id.)

III. ALJ HEARING
The ALJ held a video hearing on September 24, 2013. (Tr. 13, 29.) Plaintiff
attended the hearing with her counsel and testified to the following facts. (Tr. 29-47.)
She was at the time 31 years old and weighed 175 pounds. (Tr. 31.) She lived with her
6

husband and her child, aged five. (Id.) She completed two years of college. (Id.)
Plaintiff had a driver’s license, and she drove to the hearing from her home, which was
less than a mile away. (Tr. 32.) She did not report any difficulty in making the trip at the
time, but at times she had blurred vision which caused problems with driving. (Id.)
Plaintiff used to work for an insurance company as a full-time office manager
before August 2011. (Tr. 32-33.) At that time, plaintiff’s symptoms began. She had no
movement in the left side of her face, had difficulty closing her eyes, and had blurred
vision. (Tr. 34.) She experienced muscle weakness and was unable to walk up or down
steps. She had difficulty making phone calls because of muscle weakness in her throat.
(Id.) Plaintiff was diagnosed with MG and underwent surgery. (Id.) After spending
about a month in the hospital following her surgery, plaintiff returned to work. (Tr. 33.)
However, plaintiff’s symptoms resumed. She first switched to a part-time position
within the same insurance company, but the stress of working caused more MG
symptoms. (Tr. 35.) In November 2011, she resigned from the insurance company, and
started working for another company’s accounting department, which was a less stressful
job. (Tr. 33.) Plaintiff’s throat weakness and blurred vision increased in severity. She
also experienced weakness in her legs and arms. In May 2012, plaintiff stopped working.
(Tr. 33-35.)
Plaintiff stated that after stopping working, she stayed at home, took care of her
child, and did some house work and the laundry. (Tr. 36.) Her husband helped her to
take the laundry downstairs because her muscles were too weak to lift it. She tired easily,
and needed to sit or take naps while doing housework. (Id.) Plaintiff had difficulty
holding and turning a steering wheel, and had little strength carrying objects over ten
pounds. (Id.) When plaintiff had fatigue in her extremities, she could do no activity for
more than thirty minutes. This happened about four days a week. (Tr. 37.) Plaintiff also
stated that, due to her fatigue, she had difficulty concentrating. The blurred vision
occurred every day. (Tr. 39.) In answering the ALJ’s question, plaintiff stated that she
was able to cook, and she would attend her son’s school activities from time to time. (Tr.
42-43.)
7

A Vocational Expert (VE) testified regarding the availability of work for a person
with plaintiff’s various limitations. (Tr. 45-47.) The ALJ described a hypothetical
person, aged thirty one, with the same education and past work experiences as plaintiff,
who could frequently lift ten pounds; walk or stand two hours out of an eight-hour
workday; and, sit for six hours out of an eight-hour workday. Additionally, the person
could occasionally climb stairs, but she could never climb ropes, scaffolds, and ladders.
She could occasionally stoop, crouch, kneel, and crawl. Furthermore, the person could
occasionally push and pull.

She should avoid prolonged exposures to temperature

extremes and humidity, and should also avoid heights, hazardous objects, and moving
machineries. She was also limited to jobs that would not demand attention to detail or
complicated instructions. The VE testified that this person could return to a receptionist’s
position.

(Tr. 45.)

In a second hypothetical question, the ALJ added additional

restrictions that she was limited to simple instructions. The VE testified that she would
not be able to do a receptionist’s job, but this person could perform work in the national
and local economies. (Tr. 45-46.) The ALJ further added additional limitations on the
hypothetical person, that she was limited to occasional reaching and handling. The VE
responded that this would preclude all jobs for the person. (Tr. 46.)
Plaintiff’s attorney added additional restrictions on the ALJ’s first hypothetical
person, that she would on average leave early, or miss work for two to three days a month
due to health impairments. (Id.) The VE testified that there would be no job for the
person. (Id.) In answering plaintiff’s attorney’s question, the VE further testified that
absence due to sickness would be limited to one day per month. (Id.)

IV. DECISION OF THE ALJ
On October 4, 2013, the ALJ found plaintiff not disabled. (Tr. 13.) At the First
Step, of the required 5-step analytic process, the ALJ found that plaintiff had not been
engaged in substantial activity since August 2, 2011, the alleged onset date. (Tr. 15.)
At Step Two the ALJ found plaintiff had one severe impairment, myasthenia
gravis (MG). (Id.)
8

At Step Three the ALJ found plaintiff did not have an impairment that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. § 416.920(d), § 416.925 and § 416.926). (Tr. 16.) The
ALJ considered plaintiff’s MG and opined without detailed analysis that, while plaintiff
was on prescribed therapy, there was no evidence of significant difficulty with speaking,
swallowing, or breathing, and no evidence of significant motor weakness of muscles of
extremities during repetitive activity with resistance. (Id.)
The ALJ then considered the record and determined that plaintiff had the residual
functional capacity (RFC) to perform sedentary work as defined in 20 C.F.R.
§ 404.1567(a) and 416.967(a). Plaintiff can lift and carry ten pounds frequently; sit for
six hours out of an eight-hour workday; and stand and walk for two hours out of an eighthour workday.

(Tr. 16.)

In his decision, the ALJ stated nothing about his own

observation of plaintiff, but instead relied on plaintiff’s medical records and her
testimony. The ALJ formed his conclusion on two grounds: plaintiff’s testimony was not
entirely credible (Tr. 17), and plaintiff’s treating physician’s opinions were entitled to
minimal weight. (Tr. 19.)
First, the ALJ opined that plaintiff’s allegation of her significant impairments was
not supported by her medical records. (Tr. 17.) The ALJ stated that plaintiff never
reported to any treatment provider having significant muscle weakness. Furthermore, her
treating physician never documented significant muscle weakness in her extremities. (Tr.
17-18.)
Second, the ALJ gave minimal weight to plaintiff’s treating physician’s opinions
because they were inconsistent with the records. (Tr. 19.) The ALJ reasoned that the
treating physician’s notes contained no notation of plaintiff’s significant weakness, the
physician generally noted that plaintiff was doing well, and she was able to complete
some daily activities. (Id.)
At Step Five the ALJ, with the testimony of a VE, found that plaintiff was unable
to perform any past work.

(Id.)

After considering plaintiff’s medical record and

testimony, the ALJ found work in significant numbers in the national economy that
9

plaintiff could perform. (Tr. 20.) Subsequently, the ALJ found that plaintiff was not
disabled. (Id.)

V. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and
are supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner’s decision. Id. As long
as substantial evidence supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or
because the court would have decided the case differently. See Krogmeier v. Barnhart,
294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove that she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D),
(d)(1)(A), 1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework
is used to determine whether an individual is disabled. 20 CFR § 404.1520(a)(4); see
also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process);
Pate-Fires, 564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3)
her disability meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to Steps Four and Five.

Step Four requires the

Commissioner to consider whether the claimant retains the RFC to perform her past
10

relevant work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of
demonstrating she is no longer able to return to her PRW. Pate-Fires, 564 F.3d at 942. If
the Commissioner determines the claimant cannot return to PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy.

Id.; 20 C.F.R.

§ 404.1520(a)(4)(v). In this case, the ALJ found plaintiff could not perform her past
relevant work, but found there was other work she could perform.

VI. DISCUSSION
Plaintiff argues that the ALJ: (1) failed to give proper weight to the opinions of
plaintiff’s treating physician, Dr. Kos; (2) erred in discrediting plaintiff’s subjective
complaints, and (3) failed to provide a sufficient narrative statement in support of the
ALJ’s RFC finding.
A. Treating Physician’s Opinion
Plaintiff argues that the ALJ erred by giving only minimal weight to the opinions
of plaintiff’s treating physician, Dr. Kos. (Pl.’s Br. 7.) The court disagrees.
A treating physician’s opinion is entitled to controlling weight regarding “the
nature and severity of a claimant’s impairments,” if it is well-supported by acceptable
diagnostic procedures and is “not inconsistent with other substantial evidence.” Romine
v. Colvin, 609 F. App’x 880 (8th Cir. 2015) (quoting Cline v. Colvin, 771 F.3d 1098,
1103 (8th Cir. 2014)).

Such controlling weight, however, is neither inherent nor

automatic. Cline, 771 F.3d at 1103. The Commissioner “may discount or even disregard
the opinion of a treating physician where other medical assessments are supported by
better or more thorough medical evidence, or where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions.” Id., (quoting
Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012)). The Commissioner must always
give good reasons for the weight she gives. Id.

11

The ALJ provided good reasons for giving minimal weight to Dr. Kos’s opinions.
First, Dr. Kos’s treatment notes did not contain “any notations of the claimant having
significant weakness.”

(Tr. 19.)

Although Dr. Kos documented some mild upper

extremity weakness, there was no notation of any treatment for either upper or lower
extremities. (Id.) Second, Dr. Kos generally noted that plaintiff was doing well. (Id.)
Third, Dr. Kos’s opinion was inconsistent with plaintiff’s reported daily activities. (Id.)
Plaintiff started her visits with Dr. Kos in February 2012. Before February 2013,
however, neither plaintiff nor Dr. Kos reported significant muscle weakness in plaintiff’s
extremities. (Tr. 401-06.) Between February 2013 and September 2013, the time of the
ALJ hearing, plaintiff had three visits with Dr. Kos. Upon each visit, the physician noted
that plaintiff had “muscle weakness of was +4/5 in proximal [upper extremities] muscles
bilaterally.” (Tr. 396, 399, 497.) As the ALJ lawfully pointed out, however, Dr. Kos
prescribed no medication specifically addressing lower extremity muscle weakness. (Id.)
The physician prescribed CellCept and IVIg on each occasion, and added Prednisone
upon the last visit. (Id.) CellCept and Prednisone are commonly prescribed to treat
immune system disorders and MG, physicians also prescribe IVIg for immune system
problems.11 The descriptions of said treatments, however, bear no specific indication of
muscle weakness treatment. Notably, Dr. Kos wrote in her treatment plan on September
16, 2013 that “[s]he is currently on CellCept to 1500 mg po bid – but she still has facial
weakness.” (Tr. 497.) While the physician emphasized facial weakness, he was silent on
lower extremity weakness. (Tr. 396, 399, 497.)
Plaintiff argues that Dr. Kos opined that plaintiff was unable to work because of
“fatigue and weakness on a daily basis” instead of “significant weakness.” (Pl.’s Br. 8.)
Plaintiff further argues that “[t]he fact that her treatment records do not document
weakness during a brief examination does not suggest that [plaintiff] did not experience
substantial weakness with repetitive activity.” (Id.) The court disagrees. The question at

11

Brian & Nervous System Health Center, Diagnosis & Treatment of Myathenia Gravis,
WebMD, http://www.webmd.com/brain/understanding-myasthenia-gravis-treatment (last visited
Feb. 8, 2016).
12

issue here is whether Dr. Kos’s treatment was consistent with her conclusion, and
therefore whether or not the ALJ should have given it controlling weight.
During the nineteen months Dr. Kos treated her, plaintiff was diagnosed with mild
muscle weakness on three occasions. (Tr. 396, 399, 497.) “An ‘ALJ [is] not required to
give controlling weight to a treating physician's opinion where substantial evidence in the
record . . . [is] inconsistent with [the treating physician's] own treatment notes and other
relevant evidence.” Romine, 609 F. App’x at 886 (quoting Perkins v. Astrue, 648 F.3d
892, 899 (8th Cir. 2011)).

Had Dr. Kos diagnosed plaintiff’s muscle weakness as

significant, she would have prescribed treatment commensurate with that level. Dr. Kos
emphasized facial weakness in her treatment notes, but did not do the same for the
extremity weakness.
Although the ALJ is responsible for determining RFC based on all relevant
evidence in the record, plaintiff bears the burden of establishing disability. Harris v.
Barnhart, 356 F.3d 926, 930 (8th Cir. 2004); 42 U.S.C. § 404.1520(a). Plaintiff had
adequate opportunity to provide affidavits, testimonies, or other evidence to clarify the
physician’s muscle-weakness treatment, but she failed to do so.
The ALJ also discounted Dr. Kos’s opinion also because she noted that plaintiff
was “doing well” on one occasion. (Tr. 19, 495.) She was diagnosed of only 4/5
weakness, meaning “some reduced muscle strength.” (Tr. 399.) On several occasions,
she had “full muscle strength and normal fine finger movements.” (Tr. 401, 497.)
Plaintiff is correct to argue that a general comment of doing well does not mean that
plaintiff is not disabled.

(Pl.’s Br. 8-9.)

But the question is again whether the

inconsistency in the medical record supports the ALJ’s rejection of Dr. Kos’s opinions.
The court believes it does.
Dr. Kos made the “doing-well” comment in the examination of plaintiff on
September 16, 2013, a week before the ALJ hearing. (Tr. 495.) In this medical record,
Dr. Kos maintained most of her previous diagnoses and prescriptions, adding two
comments: (1) plaintiff had been doing well since her last visit, and (2) plaintiff did not
tolerate IVIg well, and the benefits from the infusion did not last long. (Id.) Two
13

reasonable inferences could be made from this record: (1) plaintiff was recovering from
her symptoms, despite of some side effects; or (2) plaintiff’s symptoms developed and
she suffered more from them. The ALJ made a reasonable choice between the two, based
on substantial evidence, that plaintiff was recovering. There is no substantial basis for
disturbing the ALJ’s decision. See Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)
(“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.”)
Finally, the ALJ discounted Dr. Kos’s opinions because of plaintiff’s reported
daily activities. (Tr. 19.) In the ALJ hearing, plaintiff testified that she was able to cook,
clean, shop, do laundry, and take care of her child. (Tr. 36-43.) She attended her son’s
school activities and she can drive. (Id.) On the other hand, plaintiff also testified that
she had difficulty lifting the laundry; her husband had to help her with shopping and
cooking; she would easily feel tired when performing housework; and she had to take
naps often. (Id.) This testimony reveals both plaintiff’s capabilities to perform daily
activities and limitations she faced. The ALJ considered this when stating plaintiff “may
not be able to engage in all of the activities” and “it may take her longer to perform the
tasks.” (Tr. 18-19.)
Furthermore, Dr. Kos’s medical source statement on July 11, 2013, states that
plaintiff could stand and walk one hour in a workday, but she could never climb. (Tr.
409-10.) Plaintiff’s testimony, however, indicated that she was able to climb up and
down the stairs when doing laundry. (Tr. 37-38.) It is also unclear from her testimony
how many hours plaintiff was able to stand and walk in a day, but she also testified that it
took her all day to vacuum three rooms, indicating she could walk and push, even if it
required sitting from time to time. (Tr. 41.)
Substantial evidence supports the ALJ’s decision to give Dr. Kos’s opinion
minimal weight.

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B. Plaintiff’s Credibility
Plaintiff argues that the ALJ’s credibility determination was not supported by
substantial evidence because the ALJ failed to explain how plaintiff was not credible
regarding her limitations. (Pl.’s Br. 13.) The court disagrees.
In evaluating a plaintiff’s subjective symptoms using the Polaski factors, the ALJ
must make a credibility determination. See Polaski v. Heckler, 739 F.2d 1322 (8th Cir.
1984); see also Ellis v. Barnhart, 392 F.3d 988, 995-96 (8th Cir. 2005). These factors
include: (1) the plaintiff’s daily activities; (2) the duration, frequency, and intensity of the
condition; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and
aggravating factors; and (5) functional restrictions. Polaski, 739 F.2d at 1322. The ALJ
does not need to discuss each factor separately. Rather the court will review the record as
a whole to ensure such evidence was not disregarded by the ALJ. See McCoy v. Astrue,
648 F.3d 605, 615 (8th Cir. 2011); see also Dunahoo, 241 F.3d at 1039 (“If the ALJ
discredits a claimant's credibility and gives a good reason for doing so, we will defer to
its judgment even if every factor is not discussed in depth.”). Subjective complaints may
be discounted if there are inconsistencies in the record as a whole. Polaski, 739 F.2d at
1322; see also Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009) (“[A]cts such as
cooking, vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are
inconsistent with subjective complaints of disabling pain.”); McDade v. Astrue, 720 F.3d
994, 998 (8th Cir. 2013) (The ALJ discounted plaintiff’s credibility when the evidence
showed that plaintiff “was not unduly restricted in his daily activities, which included the
ability to perform some cooking, take care of his dogs, use a computer, drive with a neck
brace, and shop for groceries with the use of an electric cart.”).
The ALJ may reject plaintiff’s complaints of pain as not credible, but in doing so
must give legally sufficient reasons, by citing inconsistencies in the record and discussing
the Polaski factors. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); see Kisling v.
Chater, 105 F.3d 1255, 1257 (8th Cir. 1997) (impairments which may be controlled with
treatment, including certain respiratory problems, do not support a finding of disability,

15

and failure to follow a prescribed treatment, including the cessation of smoking, without
good reason is grounds for denying an application for benefits).
The ALJ formed his credibility opinion on three grounds. First, plaintiff never
reported any significant muscle weakness in her extremities to any physician. (Tr. 1718.) Second, plaintiff’s alleged significant medical limitations due to fatigue were not
fully supported. (Tr. 18.) Third, plaintiff was able to perform many daily activities,
which ability was inconsistent with her alleged limitations due to significant pain. (Tr.
18-19.)
Substantial evidence supports the ALJ’s finding that plaintiff never reported
significant muscle weakness. On several occasions, plaintiff’s medical record shows
mild muscle weakness in her extremities. For instance, in August 2011, Dr. Stahly
documented that plaintiff had some “mild shoulder girdle weakness.” (Tr. 311.) From
February to September 2013, Dr. Kos noted that plaintiff had +4/5 muscle strength in her
upper extremities. (Tr. 399, 396, 409, 495, 516.) Given the fact that no physician
explicitly documented plaintiff’s significant muscle weakness, or described her fatigue as
significant, the ALJ’s first ground is supported by substantial evidence.
Next, the ALJ discussed how the medical record failed to support plaintiff’s
allegation of significant physical limitations.

“The ALJ may discredit subjective

complaints of pain only if they are inconsistent with the evidence on the record as a
whole.” Delrosa v. Sullivan, 922 F.2d 480, 485 (8th Cir. 1991). The whole medical
record should be taken into consideration, Pate-Fires, 564 F.3d at 942.

The ALJ

reviewed the medical record as a whole, and considered relevant notations, such as that
plaintiff was diagnosed only +4/5 muscle weakness in her upper extremities, that plaintiff
benefitted from the treatments, and that the treating physician never documented any
significant weakness in plaintiff’s lower extremities, as she claimed. (Tr. 18.)
Finally, the ALJ discredited plaintiff because her subjective complaints were
inconsistent with her daily activities. “[W]here an ALJ rejects a claimant's testimony
regarding pain, he must make an express credibility determination detailing his reasons

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for discrediting the testimony.” Delrosa v. Sullivan, 922 F.2d 480, 485 (8th Cir. 1991)
(quoting Prince v. Brown, 894 F.2d 283, 286 (8th Cir. 1990)).
Plaintiff’s testimony regarding her limitations in daily life is inconsistent with the
muscle weakness she complaints of. The ALJ found that plaintiff’s muscle weakness was
“mild” and not supportive of her allegation of significant weakness.

(Tr. 18.)

Furthermore, the ALJ stated that plaintiff’s “activities [were] not limited to the extent one
would expect.” (Tr. 18.) The court agrees. Dr. Kos’s physical examination notes show
that plaintiff had muscle weakness in her upper extremities, and she was unable to work
due to her symptoms. Dr. Kos further documented that plaintiff was significantly limited
to perform housework, shop, or drive.

(Tr. 399, 396, 409, 495, 516.)

Plaintiff’s

testimony, however, indicates her ability to perform a variety of daily activities. As
discussed before, plaintiff testified to both the activities she was and was not able to
perform. The ALJ’s opinion demonstrates substantial reasons to question plaintiff’s
credibility. The ALJ specified facts that plaintiff was able to cook and clean, she was
able to take care of her child and attend his school activities, she was able to do laundry
and shopping, with her husband’s help, and she was able to drive. (Tr. 18-19.) After
summarizing plaintiff’s daily activities, the ALJ held that “she [was] more active than
would be expected if all of her allegations were credible.” (Tr. 19.)
The court finds that substantial evidence supports the ALJ’s decision to discredit
plaintiff’s subjective complaints.

C. Plaintiff’s RFC
Plaintiff further argues that the ALJ’s determination regarding her RFC to perform
sedentary work was erroneous because the ALJ provided no evidentiary record to sustain
his RFC finding. (Pl.’s Br. 12.)
The RFC is what a plaintiff can do despite her limitations, which is to be
“determined on the basis of all relevant evidence, including medical records, physician’s
opinions, and claimant’s description of her limitations.” Dunahoo v. Apfel, 241 F.3d
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1033, 1039 (8th Cir. 2001); 20 C.F.R. § 404.1545(a)(1); see 20 C.F.R. § 416.929 (“In
determining whether you are disabled, we 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.”). It is the plaintiff’s burden to prove her
RFC, while the ALJ is responsible for determining RFC based on all relevant evidence in
the record. See Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004).
The ALJ has the duty to provide “a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts . . . and nonmedical
evidence.” Social Security Ruling 96-8p, 1996 WL 374184, at *7. A summary of the
medical record does not fulfill the narrative discussion requirement. George v. Astrue,
No. 4:10 CV 02136 RWS/NAB, 2012 WL 1032973, at *14 (E.D. Mo. Mar. 5, 2012).
The ALJ, however, is not required to make explicit findings for every aspect of the RFC.
Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003). The ALJ has no obligation to
obtain additional medical evidence, if other evidence in the record provides a sufficient
basis for the decision. Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013). Where the
evidence in the record is insufficient, however, the ALJ must have other medical
evidence to support the RFC assessment. Brown v. Colvin, No. 4:13 CV 01693 SPM,
2014 WL 2894937, at *6 (E.D. Mo. June 26, 2014).
Here, the ALJ provided no specific explanation or medical opinion how the
evidence supported his conclusion that plaintiff could maintain a sedentary RFC. The
ALJ started his discussion regarding plaintiff’s RFC by discrediting plaintiff’s subjective
complaints.

(Tr. 17-19.)

Following which, the ALJ discredited Dr. Kos’s opinion

regarding plaintiff’s limitations. (Tr. 19.) The ALJ then concluded that plaintiff had the
RFC to perform sedentary work, without citing any other medical opinion. (Tr. 16.)
Plaintiff correctly argues that “[a]fter discounting Dr. Kos’s opinions, the record
was left undeveloped regarding [plaintiff’s] functional abilities.” (Pl.’s Br. 11.) After
discrediting plaintiff’s complaints and Dr. Kos’s opinions, what remains is nothing more
than a minimally weighted treating physician’s opinion.

Although the ALJ briefly

summarized plaintiff’s daily activities, there was no adequate basis for the ALJ’s finding.
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Where the ALJ failed to cite other medical opinions, he acted as a evaluating physician
himself.
The court agrees with the Commissioner that plaintiff bears the burden of
providing evidence, (Def.’s Br. 19,) and that the ALJ did not dismiss Dr. Kos’s opinion
“in its entirety.” (Id.) This argument, however, masks the insufficiency of the basis for
the ALJ’s finding. Plaintiff provided evidence about her limitations, namely, Dr. Kos’s
opinions. The ALJ, on the other hand, sought no other medical opinion, despite of the
fact the he gave minimal weight to Dr. Kos’s opinions, and mentioned no conflicting
medical evidence in the record. No evidence supports the ALJ’s RFC opinion. See Leise
v. Astrue, No. 4:06 CV 196 DDN, 2007 WL 5117110, at *8 (E.D. Mo. Feb. 26, 2007)
(holding that the ALJ must have some evidence to support her RFC findings, even if the
ALJ has lawfully rejected claimant’s evidence).
Defendant argues that the ALJ properly considered plaintiff’s medical record. The
court disagrees. The ALJ determined that plaintiff was able to “sit for six hours out of an
eight-hour workday, and stand and walk for two hours out of an eight-hour workdays.”
(Tr. 16.) Dr. Kos, however, opined that plaintiff was able to sit for one hour, and stand
and walk for one hour out of a workday. (Tr. 409.) Even if the ALJ gave minimal
weight to Dr. Kos’s opinion, he failed to provide any evidence to support his finding that
plaintiff was able to sit for six hours a day instead of only one. The court, therefore, finds
that the ALJ’s decision regarding plaintiff’s RFC is not supported by substantial
evidence.
Furthermore, the ALJ failed to consider plaintiff’s other significant limitations.
For instance, in answering plaintiff’s attorney’s question, the VE testified that a person in
the ALJ’s hypothetical would not remain employed if she is absent from work for more
than one day per month. (Tr. 46.) Plaintiff’s medical record shows, however, that she
was prescribed IVIg infusions on a monthly basis, which resulted in severe headaches.
(Tr. 495.) Following each infusion, plaintiff reported increased symptoms of blurred
vision, throat weakness, and fatigue. (Tr. 436-38, 441-42.) Dr. Kos also opined that
plaintiff’s migraine headaches would occur with widely varying frequency, and plaintiff
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was unable to work for two to five days afterwards. (Tr. 519.) This indicates that
plaintiff might be absent longer than acceptable to maintain employment. The ALJ’s
opinion, however, mentioned nothing about such potential limitation.
The court therefore, finds that the ALJ’s decision regarding plaintiff’s RFC is not
supported by substantial evidence.

D. Step Three Determination
The court notes that the ALJ's consideration of the Step Three required analysis is
legally insufficient. The court may review the issue sua sponte. See Miles v. Colvin, 973
F. Supp. 2d 1030, 1043 (E.D. Mo. 2013) (quoting Battles v. Shalala, 36 F.36 43, 45 n. 2
(8th Cir. 1994)).
Under the five-step regulatory framework, the ALJ must consider whether
plaintiff’s impairment meets or equals a listed impairment. Bowen v. Yuckert, 482 U.S.
137, 140-142 (1987); 20 C.F.R. § 404.1520(a)(4)(i)-(iii). “If the impairment meets or
equals one of the listed impairments, the claimant is conclusively presumed to be
disabled.” Bowen, at 142.
The listing for myasthenia gravis provides two situations where a claimant’s
symptoms meet its requirements for a conclusive disability finding:
11.12 Myasthenia gravis. With:
A. Significant difficulty with speaking, swallowing, or breathing while on
prescribed therapy; or
B. Significant motor weakness of muscles of extremities on repetitive
activity against resistance while on prescribed therapy.
Listing 11.12, 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ’s decision has a very brief summary discussion of Step Three. The ALJ
concluded that plaintiff’s condition did not meet Listing 11.12 (MG) as there was “no
evidence of significant difficulty with speaking, swallowing, or breathing while on
prescribed therapy and no evidence of significant motor weakness of muscles of
extremities on repetitive activity against resistance while on prescribed therapy.” (Tr.
16.)
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While it is within the ALJ’s authority to discredit or disregard evidence, he must at
least state a legitimate basis for his finding. See George v. Astrue, 4:10 CV 02136 RWS
NAB, 2012 WL 1032973, at *14 (E.D. Mo. Mar. 5, 2012). Plaintiff introduced evidence
of her difficulty with swallowing. She testified in the ALJ hearing that she had to resign
from the insurance company because she was unable to talk to customers due to the
weakness in her throat. (Tr. 35.) She suffered from the same symptom while she was
working as a part-time accountant. (Id.) Dr. Kos repeatedly diagnosed that she had
throat weakness. (Tr. 401, 436-38, 441-43, 516-18.) There is also evidence in the record
that plaintiff had motor weakness of muscles of her extremities, from both plaintiff’s own
testimony, and from Dr. Kos’s notes. (Tr. 34-42, 396-400, 412.) In his opinion, the ALJ
gave no substantial basis for discrediting plaintiff’s testimony in this regard.
Therefore, the ALJ’s brief, conclusory discussion of Step Three is legally
insufficient and requires reversal and remand.
VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social
Security is reversed under Sentence 4 of 42 U.S.C. § 405(g) and remanded for further
proceedings. The court instructs that on remand (1) the ALJ must reconsider the Step
Three determination and, regardless of the decision on this issue, provide a legally
sufficient narrative discussion, and (2) the ALJ must reassess plaintiff’s RFC, considering
the relevant medical record and other evidence; if needed, the ALJ must acquire a
consulting medical opinion to on the plaintiff’s RFC.
An appropriate Judgement Order is issued herewith.

/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE

Signed on May 24, 2016.

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