Schmitz v. Berryhill

Filing 21

MEMORANDUM AND ORDER that the decision of the Commissioner is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and the case is remanded for further proceedings consistent with the foregoing opinion. Final judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CYNTHIA JEAN SCHMITZ,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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4:18CV3074

MEMORANDUM
AND ORDER

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.
I. PROCEDURAL BACKGROUND
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.

1

Sections 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g), 1383(c)(3), provide
for judicial review of the Commissioner’s final administrative decisions under Title XVI.
2

Plaintiff has a protective filing date of December 16, 2014 (Filing 14-6, p. 2).

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.
4D/01).

The claimant has no past relevant work (20 CFR 416.965) (Exh.

3

See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (“During the five-step
process, the ALJ considers (1) whether the claimant is gainfully employed, (2) whether the
claimant has a severe impairment, (3) whether the impairment meets the criteria of any
Social Security Income listings, (4) whether the impairment prevents the claimant from
performing past relevant work, and (5) whether the impairment necessarily prevents the
claimant from doing any other work.” (quotation and citation omitted)).

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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).

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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).
III. MEDICAL RECORDS
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
4

Plaintiff was seen at the McCook Clinic on August 11, 2014, by David J. Powell,
PA-C (Filing 14-7, p. 48). The lab work was completed on August 14, 2014 (Filing 14-7, p.
45). The physician’s assistant diagnosed Plaintiff with a lower urinary tract infection and
prescribed medication (Filing 14-7, p. 44).

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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. US strength remains 5/5; RLE 4 5, LLE
4+/5 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
5

Plaintiff reported symptoms included “vision disturbances, limb weakness and loss
of balance (numbness); associated symptoms included urinary incontinence and difficulty
concentrating”; Plaintiff indicated “the disease has been worsening” (Filing 14-7, p. 42). On
examination by David Powell, PA-C, Plaintiff had generalized muscle weakness and
impaired coordination walking on her heels; it was his impression that the March 4, 2014
brain MRI showed changes consistent with active MS (Filing 14-7, p. 43).

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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 C5-C6 with small disc protrusion at C3-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).

6

This brain MRI was performed at the Community Hospital in McCook, Nebraska;
the stated reason for the MRI was “R/O COMPRESSION LESION, VISION LOSS ESP RT
EYE” (Filing 14-7, p. 12).
7

These spinal MRIs were actually performed on November 28, 2014, at the McCook
Community Hospital, as ordered by Davakumaran J. Kumar, M.D., a neurologist who
practices in North Platte, Nebraska; the stated reason for both MRIs was “MULTIPLE
SCLEROSIS” (Filing 14-7, pp. 5-7). Dr. Kumar first saw Plaintiff on November 19, 2014,
on referral from David Powell, PA-C. At that time, Plaintiff reported that the onset of muscle
weakness had been occurring in an intermittent pattern for 10 years, but had been increasing
over the past year; that she had difficulty rising from a chair, climbing stairs, combing her
hair, walking, and writing; that she had increased weakness after exertion; that the muscle
weakness was located over her entire body, but was worst in her hands and feet; and that she
experienced muscle twitching, numbness in her hands and legs, and tingling (Filing 14-7, p.
70). On physical examination, Plaintiff had normal lower arm strength but reduced strength
(4/5) in both legs; impaired sensory level at T4; deep brisk tendon reflexes; equivocal plantar
reflexes; and an unsteady gait but no ataxia (Filing 14-7, p. 71). In addition to ordering the
spinal MRIs, Dr. Kumar referred Plaintiff to a physical therapist (Filing 14-7, p. 72).

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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
8

Dr. Anil Kumar is a neurologist and a colleague of Davakumaran J. Kumar, M.D.
Plaintiff reported that her symptoms had gotten worse since her last visit to the clinic on
November 19, 2014, with increased numbness in her left hand and more problems with
balance and movement; Plaintiff stated she had been doing PT twice a week (Filing 14-7, p.
73). Before seeing Plaintiff, Dr. Anil Kumar consulted with Rana K. Zabad, M.D., a
neurologist specializing in treatment of MS at the University of Nebraska Medical Center
(Nebraska Medicine), who recommended starting Plaintiff on steroids or intravenous
immunoglobulin (IVIG) if her symptoms were getting worse (Filing 14-7, p. 75). He also
spoke to Plaintiff’s OB-GYN, who approved the use of steroids if Plaintiff was having acute
exacerbation of her MS (Filing 14-8, p. 8). Because Plaintiff’s symptoms were found to be
mildly improved (with no sensory level and strength in lower extremities increasing from 4/5
to +4/5), Dr. Kumar did not pursue this course of treatment (Filing 14-7, p. 75).

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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

9

When Plaintiff visited the McCook Clinic on February 26, 2015, she “presented in
a wheelchair” (Filing 14-10, p. 20). PA-C Powell noted Plaintiff had muscle weakness in the
lower extremities (right 4/5, left 3+/5) and walking on heels was impaired (Filing 14-10, p.
21).
10

The crutches were prescribed by a physician at the McCook Clinic on March 4,
2015 (Filing 14-10, p. 33).
11

This is a misreading of the record. Dr. Zabad was merely summarizing Plaintiff’s
medical history in her notes, stating in part: “In 2014, [Plaintiff] went to see a PA for
imbalance and numbness in her hands, from wrist down, worse distally. She found out she
was 9-week[s] pregnant. She was referred to Dr. Kumar in December 2014. Currently she
is still pregnant with an expected delivery date [of] June 12, 2015. She has been using BL
[bilateral] crutches since 2/2015. They help her walking straighter.” (Filing 14-10, p. 37) See
also PAC Powell’s office notes of November 3, 2014 (Filing 14-7, pp. 42-43) and notes of
prenatal visit at McCook Clinic on November 14, 2014 (Filing 14-7, pp 38-41). Plaintiff told
Dr. Zabad her symptoms were now “bad enough” that she was now willing to try disease
modification treatment (DMT) (Filing 14-10, p. 37).

-8-

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 walk12 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
12

On examination by Dr. Zabad, however, Plaintiff “ambulated without her crutches”
(Filing 14-10, p. 39). She could not toe, heel, or tandem walk. Plaintiff also tested Romberg
positive (Filing 14-10, p. 39).
13

Dr. Zabad assessed Plaintiff as having “[c]linically definite RRMS [relapsingremitting MS] with very active disease and high burden of disease on the spinal cord and
moderate on the brain” (Filing 14-10, p. 40). Dr. Zabad thought Plaintiff might benefit from
intravenous solumedrol (IVSM) treatment; provided that an ultrasound of the fetus scheduled
for the following week showed no congenital malformations, the Plaintiff could opt to be
administered high dose steroids for 3 days at her local hospital or family physician’s office
in McCook; however, it was “explained to [Plaintiff] that in the postpartum period, she might
go on to have another relapse” (Filing 14-10, p. 40).

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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).
14

Plaintiff reported “her overall function is improving since falling at home,” but also
stated her “leg weakness and numbness have gotten a lot worse since last visit” (Filing 14-10,
p. 12). On examination, Plaintiff had 4/5 strength in both arms and 3+/5 strength in both legs;
regarding coordination, PA-C Powell noted, “Pt unable to rise from wheelchair unassisted”;
regarding gait, he noted, “Pt not able to walk unassisted, weakness is severe enough that not
able to manage with cane, crutch or walker; and no musculoskeletal evaluation was made
because “Pt presents in Wheel chair. Unable to stand or ambulate on her own power” (Filing
14-10, p. 13). Six months earlier, on April 7, 2016, PA-C Powell did not do strength testing
and indicated he was unable to perform a musculoskeletal examination because Plaintiff
presented in a wheelchair (Filing 14-10, p. 16). Plaintiff was next seen at the McCook Clinic
on August 12, 2016, at which time she reported having fallen 3 days before; Plaintiff
requested another referral for physical therapy and to be evaluated for a manual wheelchair
(Filing 14-10, p. 14). Plaintiff’s muscle strength was unchanged from the last visit and PA-C
Powell noted that Plaintiff was unable to rise or walk without assistance (Filing 14-10, p. 15).
He further noted: “Home Health has been notified. They will follow up on Monday. Pt is
home bound due to MS, increasing weakness restricting mobility. Pt needs evaluation for
bathing, meal prep and light house keeping” (Filing 14-10, p. 14). Plaintiff was referred to
PT and “Started Wheelchair” (Filing 14-10, p. 15). Prior to the September 1, 2016 office
visit, PA-C Powell spoke to an MS caseworker for Dr. Zabad about a plan to start Plaintiff
on rituximab; he also spoke with Home Health and noted that Plaintiff was being fitted for
a manual wheelchair (Filing 14-10, pp. 13, 27-28). On April 4, 2017, Plaintiff was seen by
Alyssa B. Bauer, NP-C, at the McCook Clinic. Plaintiff complained of leg pain and
increasing leg weakness over the past month; the nurse practitioner prescribed ropinorile for
restless leg syndrome and was referring Plaintiff to Dr. Zabad or Dr. Kumar for follow-up
(Filing 14-10, pp. 64-65).

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The claimant had a stable focal lesion of the thoracic cord at T6-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 T7-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 C3-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 unchanged17 and her coordination testing showed her foot tapping

15

On January 3, 2017, PA-C Powell completed an incapacity statement for the
Nebraska Department of Human Services, stating that Plaintiff should receive 24/7 child care
services because of “Immobility secondary to MS. Pt. is wheel chair bound. Requires aid to
transfer” (Filing 14-10, p. 35).
16

Dr. Zabad noted that Plaintiff “has received her first dose of rituximab in August
2016” (Filing No. 14-10, p. 56). It was also noted that Plaintiff was previously prescribed
Copaxone, but stopped taking it in April 2016 when she lost her insurance (Filing 14-10, p.
53). Plaintiff reported that her house was condemned following an electrical fire, and that she
was no longer receiving physical therapy or home health services (Filing 14-10, p. 53). Dr.
Zabad thought Plaintiff “definitely needs some physical therapy but unfortunately her life
circumstance [very poor social support and poor finance] is a big impediment to proceed with
that”; Dr. Zabad also opined that psychological stressors were likely contributing to
Plaintiff’s worsening MS (Filing 14-10, p. 56).
17

Dr. Zabad noted: “Gait was broadbased. She cannot toe, heel or TW [tandem walk].
Romberg positive. Today she did not have her crutches. She was ambulating holding to the

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was slower on the right than the left (Exh. 12F/19).18 She was asked to return
in three to four months (Exh. 12F/20).19
(Filing 14-2, pp. 27-29).
IV. DISCUSSION
“By statute, ‘[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive.’” Howard v. Massanari, 255 F.3d
577, 580 (8th Cir. 2001) (quoting 42 U.S.C. § 405(g)). “Substantial evidence is less than a
preponderance, but enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusions.” Nash v. Comm’r, Soc. Sec. Admin., 907 F.3d 1086, 1089 (8th
Cir. 2018) (quoting Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007). “[T]his court
considers evidence that detracts from the Commissioner’s decision as well as evidence that

walls. She was spastic parapetic worse on the left side. There was some slapping of the left
foot.” (Filing 14-10, p. 55)
18

In addition, Plaintiff displayed bilateral dysmetria with heel-to-shin (HTS) testing
and no rebound (Filing 14-10, p. 55). Dr. Zabad noted the same lack of coordination during
previous exams (Filing 14-10, pp. 39, 46, 51).
19

Although not discussed by the ALJ, Dr. Zabad also saw Plaintiff on December 1,
2015 (Filing 14-10, pp. 44-48), and again on April 5, 2016 (Filing 14-10, pp. 49-52). On the
first of these visits, it was noted that glatiramer acetate (GA) therapy was initiated in
September 2015, but Plaintiff had stopped taking the medication recently because it did not
help and she had injection site reactions (Filing 14-10, p. 44). On examination, strength, bulk
and tone were normal in Plaintiff’s arms; leg strength was 4-/5 in both hip flexors, 4/5 in
right knee flexor, 4/5 in right big toe extensor, 5-/5 in left big toe extensor, but otherwise
normal; deep tendon reflexes were pathologically brisk; Plaintiff’s gait was broadbased; she
could not toe, heel, or tandem walk, was Romberg positive, and had bilateral foot drop;
Plaintiff ambulated with her crutches but was considered a fall risk (Filing 14-10, p. 46). At
the April 5, 2016 visit, Plaintiff reported “an increase in the frequency of falls. Her legs feel
like dead weight. She reports constipation for more than a week followed by an explosive
diarrhea.” (Filing 14-10, p. 49) Dr. Zabad felt Plaintiff needed “aggressive treatment” with
either rituximab or Lemtrada (Filing 14-10, p. 51). On examination, strength, bulk and tone
were normal in Plaintiff’s arms; leg strength was decreased to 3/5 in right hip flexor, but
other measurements were unchanged (Filing 14-10, p. 50). Plaintiff’s gait was also
unchanged; she ambulated on crutches but was considered a fall risk (Filing 14-10, p. 50).

-12-

supports it.” Travis, 477 F.3d at 1040. “If substantial evidence supports the Commissioner’s
conclusions, this court does not reverse even if it would reach a different conclusion, or
merely because substantial evidence also supports the contrary outcome.” Id.
The court must also determine whether the Commissioner’s decision “is based on
legal error.” Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000). “Legal error may be an error
of procedure, the use of erroneous legal standards, or an incorrect application of the law.”
Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). No deference is
owed to the Commissioner’s legal conclusions. See Juszczyk v. Astrue, 542 F.3d 626, 633
(8th Cir. 2008) (stating that allegations of legal error are reviewed de novo).
“At step three [of the 5-step sequential analysis], the ALJ considers whether the
claimant’s severe impairment meets or equals an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1.” Scott v. Berryhill, 855 F.3d 853, 855 (8th Cir. 2017); 20 C.F.R. §
416.920(a)(4)(iii). “If so, then the ALJ must find the claimant disabled.” Id.; 20 C.F.R. §
404.1520(d). “[T]he listings were designed to operate as a presumption of disability that
makes further inquiry unnecessary.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990). “Thus, if
the ALJ determines at step three of the sequential analysis that a claimant has a listed
impairment, the claimant ‘must be held disabled, and the case is over.’” Brown v. Colvin, 825
F.3d 936, 939 (8th Cir. 2016) (quoting Jones v. Barnhart, 335 F.3d 697, 699 (8th Cir. 2003)).
“The burden of proof is on the plaintiff to establish that his or her impairment meets
or equals a listing.” Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004) (citing
Sullivan v. Zebley, 493 U.S. at 530-31). “To meet a listing, an impairment must meet all of
the listing’s specified criteria.” Id.
The ALJ’s decision in this case focused primarily upon whether Plaintiff’s
impairments met or medically equaled Listing 1.02 for major dysfunction of a joint or Listing
1.04 for disorders of the back. The ALJ determined that Listing 1.02 was not met or equaled
because “the evidence does not demonstrate that the claimant has the degree of difficulty in
performing fine and gross movements as defined in l.00B2c or the degree of difficulty in
ambulating as defined in l.00B2b” (Filing 14-2, p. 24). The ALJ determined that Listing 1.04
was not met or equaled because “the medical evidence “does not establish the requisite
evidence of nerve root compression, spinal arachnoiditis or lumbar spinal stenosis” and

-13-

“there is no evidence that the claimant’s back disorder has resulted in an inability to ambulate
effectively, as defined in l.00B2b (Filing 14-2, p. 24). Plaintiff does not directly contest these
findings.
Instead, Plaintiff complains that the ALJ gave inadequate consideration to Listing
11.09 for multiple sclerosis,20 as he stated, without further explanation:
The record does not show a disorganization of motor function as
described in 11.04B; or a visual or mental impairment as described under the
criteria in 2.02, 2.03, 2.04, or 12.02; or a significant, reproducible fatigue of
motor function with substantial muscle weakness on repetitive activity,
demonstrated on physical examination, resulting from neurological
dysfunction in areas of the central nervous system known to be pathologically
involved by the multiple sclerosis process.
(Filing 14-2, p. 25).
In making this finding, the ALJ referenced the language of a superseded version of
Listing 11.09, which, before being replaced on September 29, 2016, had identified as a
disabling condition:
11.09 Multiple sclerosis. With:
A. Disorganization of motor function as described in 11.04B;21 or
20

“Multiple sclerosis (MS) is a chronic, inflammatory, degenerative disorder that
damages the myelin sheath surrounding the nerve fibers in the brain and spinal cord. The
damage disrupts the normal transmission of nerve impulses within the brain and between the
brain and other parts of the body, causing impairment in muscle coordination, strength,
balance, sensation, and vision. There are several forms of MS, ranging from mildly to highly
aggressive. Milder forms generally involve acute attacks (exacerbations) with partial or
complete recovery from signs and symptoms (remissions). Aggressive forms generally
exhibit a steady progression of signs and symptoms with few or no remissions. The effects
of all forms vary from person to person.” 20 C.F.R. § 404, Subpt. P, App. 1, § 11.00N1
(effective September 29, 2016).
21

Section 11.04B defined the required motor function disorganization as “[s]ignificant
and persistent disorganization of motor function in two extremities, resulting in sustained
disturbance of gross and dexterous movements, or gait and station (see 11.00C).” 20 C.F.R.
Pt. 404, Subpart. P, App. 1, § 11.04B (in effect prior to September 29, 2016). Section 11.00C

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B. Visual or mental impairment as described under the criteria in 2.02,
2.03, 2.04, or 12.02; or
C. Significant, reproducible fatigue of motor function with substantial
muscle weakness on repetitive activity, demonstrated on physical examination,
resulting from neurological dysfunction in areas of the central nervous system
known to be pathologically involved by the multiple sclerosis process.
20 C.F.R. Pt. 404, Subpt. P., App. 1, § 11.09 (in effect prior to Sept. 29, 2016).
The criteria in the Listing of Impairments that the Commissioner uses to evaluate
disability claims involving neurological disorders, including multiple sclerosis, were revised
comprehensively on July 1, 2016, with the new regulations taking effect on September 29,
2016, nearly 10 months before the ALJ’s July 25, 2017 decision. See Revised Medical
Criteria for Evaluating Neurological Disorders, 81 Fed. Reg. 43048, 2016 WL 3551949
(July 1, 2016). The revised listings apply to “new applications filed on or after the effective
date of the rules, and to claims that are pending on or after the effective date.” Id. at 43051.
Accordingly, the revised Listing 11.09 should have been used by the ALJ in the
analysis of Plaintiff’s claim, and it will be applied by the court in reviewing the ALJ’s
decision. See id. at 43051 n. 6 (“This means that we will use the final rule[s] on and after
their effective date in any case in which we make a determination or decision. We expect that
Federal courts will review our final decisions using the rule[s] that were in effect at the time
we issued the decisions.”). The revised listing requires a finding of disability for a claimant
who has:
11.09 Multiple sclerosis, characterized by A or B:
A. Disorganization of motor function in two extremities (see 11.00D1),
resulting in an extreme limitation (see 11.00D2) in the ability to stand up from
provided: “Persistent disorganization of motor function in the form of paresis or paralysis,
tremor or other involuntary movements, ataxia and sensory disturbances (any or all of which
may be due to cerebral, cerebellar, brain stem, spinal cord, or peripheral nerve dysfunction)
which occur singly or in various combinations, frequently provides the sole or partial basis
for decision in cases of neurological impairment. The assessment of impairment depends on
the degree of interference with locomotion and/or interference with the use of fingers, hands,
and arms.” 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 11.00C (in effect prior to Sept. 29, 2016).

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a seated position, balance while standing or walking, or use the upper
extremities; or
B. Marked limitation (see 11.00G2) in physical functioning (see
11.00G3a), and in one of the following:
1. Understanding, remembering, or applying information (see
11.00G3b(i)); or
2. Interacting with others (see 11.00G3b(ii)); or
3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii));
or
4. Adapting or managing oneself (see 11.00G3b(iv)).
20 C.F.R. § 404, Subpt. P, App. 1, § 11.09 (effective September 29, 2016).
Plaintiff contends a finding of disability is required under part A of this listing because
she has disorganization of motor function in both lower extremities22 resulting in an extreme
limitation in her ability to stand up from a seated position or to balance while standing or
walking.23 To meet this Listing, Plaintiff must show either “that once seated [she] is unable
to stand and maintain an upright position without the assistance of another person or the use
of an assistive device, such as a walker, two crutches, or two canes,” 20 C.F.R. § 404, Subpt.
P, App. 1, § 11.00D2a (effective September 29, 2016), or else that she is “unable to maintain
an upright position while standing or walking without the assistance of another person or an
assistive device, such as a walker, two crutches, or two canes,” 20 C.F.R. § 404, Subpt. P,
App. 1, § 11.00D2b (effective September 29, 2016).

22

“Disorganization of motor function means interference, due to [a] neurological
disorder, with movement of two extremities; i.e., the lower extremities, or upper extremities
(including fingers, wrists, hands, arms, and shoulders).” 20 C.F.R. § 404, Subpt. P, App. 1,
§ 11.00D1 (effective September 29, 2016). The affected extremities may include “both lower
extremities, or both upper extremities, or one upper extremity and one lower extremity.” Id.
23

“Extreme limitation means the inability to stand up from a seated position, maintain
balance in a standing position and while walking, or use [the] upper extremities to
independently initiate, sustain, and complete work-related activities. The assessment of
motor function depends on the degree of interference with standing up; balancing while
standing or walking; or using the upper extremities (including fingers, hands, arms, and
shoulders).”20 C.F.R. § 404, Subpt. P, App. 1, § 11.00D2 (effective September 29, 2016).

-16-

Although the ALJ in this case merely stated his conclusion the Plaintiff’s MS
symptoms were not sufficiently severe to meet the requirements of Listing 11.09, the Eighth
Circuit has held that “[a]n ALJ’s failure to address a specific listing or to elaborate on his
conclusion that a claimant’s impairments do not meet the listings is not reversible error if the
record supports the conclusion.” Vance v. Berryhill, 860 F.3d 1114, 1118 (8th Cir. 2017)
(citing Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006); Pepper ex rel. Gardner v.
Barnhart, 342 F.3d 853, 855 (8th Cir. 2003)); see also Senne v. Apfel, 198 F.3d 1065, 1067
(8th Cir. 1999) (“We have consistently held that a deficiency in opinion-writing is not a
sufficient reason for setting aside an administrative finding where the deficiency had no
practical effect on the outcome of the case.”).24 However, “[r]emand is warranted ‘where the
ALJ’s factual findings, considered in light of the record as a whole, are insufficient to permit
[the court] to conclude that substantial evidence supports the Commissioner’s decision.” Id.
(quoting Scott ex rel. Scott v. Astrue, 529 F.3d 818, 822 (8th Cir. 2008)).
Here, the ALJ concluded that Listing 11.09 was not met because “[t]he record does
not show a disorganization of motor function as described in 11.04B” (Filing 14-2, p. 25).
Former section 11.04B described the disorganization of motor function as being “significant
and persistent” and “resulting in sustained disturbance of gross and dexterous movements,
or gait and station.” See 20 C.F.R. Pt. 404, Subpart. P, App. 1, § 11.04B (in effect prior to
September 29, 2016). The ALJ’s decision gives no indication that he considered Plaintiff’s
disorganization of motor function to be insignificant or non-persistent. The ALJ instead
appears to have concluded that Plaintiff’s MS did not cause a sustained disturbance of her
gait and station – in other words, there was not a sufficient degree of interference with her
ability to walk and stand. See 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 11.00C (in effect prior
to Sept. 29, 2016).

24

Similarly, the fact that the ALJ discussed Plaintiff’s medical evidence only in
conjunction with his RFC determination does not necessarily imply that his step-three
determination was flawed. See Vance v. Colvin, No. 8:15CV115, 2016 WL 225665, at *3 (D.
Neb. Jan. 19, 2016) (“The fact that the ALJ’s actual discussion of the medical evidence came
later in the opinion was most likely motivated by a desire not to be redundant in his writing,
especially in light of the overlapping nature of the medical evidence.... The ALJ stated that
he had considered the medical evidence when evaluating the Listings. The fact that his actual
discussion of the medical evidence came later in the opinion is of no real significance under
the circumstances here.”), aff’d sub nom. Vance v. Berryhill, 860 F.3d 1114 (8th Cir. 2017).

-17-

Under the regulations in effect at the time the ALJ rendered his decision, such a
determination would require a finding that Plaintiff failed to establish she required assistance
(of another person or use of an assistive device such as a walker, two crutches, or two canes)
either to stand upright from a seated position or to remain upright while standing or walking.
See 20 C.F.R. § 404, Subpt. P, App. 1, § 11.00D (effective September 29, 2016).
In evaluating multiple sclerosis under Listing 11.09, the Commissioner considers a
claimant’s “signs and symptoms, such as flaccidity, spasticity, spasms, incoordination,
imbalance, tremor, physical fatigue, muscle weakness, dizziness, tingling, and numbness
when ... determin[ing] [his or her] ability to stand up, balance, walk, or perform fine and
gross motor movements. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 11.00N2 (effective
September 29, 2016). “Symptoms” are the claimant’s “own description of [his or her]
physical or mental impairment.” 20 C.F.R. § 416.902(n). “Signs” are “one or more
anatomical, physiological, or psychological abnormalities that can be observed, apart from
[the claimant’s] (symptoms). Signs must be shown by medically acceptable clinical
diagnostic techniques.” 20 C.F.R. § 416.902(l).
Social Security Ruling 16-3p, which applies to cases decided after March 28, 2016,
states that “if an individual alleges impairment-related symptoms, [the ALJ] must evaluate
those symptoms using a two-step process set forth in [the] regulations.” SSR 16-3p, Titles
II & XVI: Evaluation of Symptoms in Disability Claims, 82 Fed. Reg. 49462, 2017 WL
5180304, at *2 (Oct. 25, 2017) (footnote omitted); see 20 C.F.R. § 416.929. “First, [the ALJ]
must consider whether there is an underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to produce an individual’s symptoms, such
as pain. Second, once an underlying physical or mental impairment(s) that could reasonably
be expected to produce an individual’s symptoms is established, [the ALJ] evaluate[s] the
intensity and persistence of those symptoms to determine the extent to which the symptoms
limit an individual’s ability to perform work-related activities ....” Id. at 49463, 2017 WL
5180304, at *3.
“To decide whether the impairment meets the level of severity described in a listed
impairment, [the ALJ] will consider an individual’s symptoms when a symptom(s) is one of
the criteria in a listing to ensure the symptom is present in combination with the other
criteria.... Unless the listing states otherwise, it is not necessary [for the claimant] to provide

-18-

information about the intensity, persistence, or limiting effects of a symptom as long as all
other findings required by the specific listing are present.” Id. at 49467, 2017 WL 5180304,
at *11 (footnote omitted); see 20 C.F.R. § 416.929(d)(2).
Social Security Ruling 16-3p also specifies that the ALJ’s “decision must contain
specific reasons for the weight given to the individual’s symptoms, be consistent with and
supported by the evidence, and be clearly articulated so the individual and any subsequent
reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Id., 2017 WL
5180304, at *10. “In evaluating an individual’s symptoms, it is not sufficient for [the ALJ]
to make a single, conclusory statement that ‘the individual’s statements about his or her
symptoms have been considered’ or that ‘the statements about the individual’s symptoms are
(or are not) supported or consistent.’ It is also not enough for [the ALJ] simply to recite the
factors described in the regulations for evaluating symptoms.” Id.
The ALJ in this case stated that “the claimant’s allegations and symptoms have been
evaluated” under SSR 16-3p (Filing 14-2, p. 31). The ALJ summarized Plaintiff’s testimony
and concluded that her symptoms and claimed limitations were not supported by the medical
record:
The claimant alleged to the State agency that she was disabled due to
multiple sclerosis (Exh. 2E/2).25 The claimant alleged that she was “very
limited” and during a normal day she would “wake up, crawl to kids to get ’em
up for school” (Exh. 4E/01).26 The claimant stated her “legs aren’t awake at
6am” and then will sit on the couch to wait for kids rides to show up (Exh.
4E/01). The claimant stated she was not taking any medications but then
reported she was still looking for medication that helped and did not have side
effects (Exh. 4E/04). The claimant stated she used to go outside on her own
but no longer does because she is too weak and will fall (Exh. 4E/04). The
claimant stated she had numbness, fatigue, weakness, dizziness, blurred or
double fusion, and a slow thought processes (Exh. 4E/03). She stated she could
not sit for more than 20 minutes at a time, walk 20 feet with a cane, could not
stand without a cane, and could not tie her six-year-old’s shoes (Exh. 4E/02).

25

Exhibit 2E is a disability report dated February 5, 2015.

26

Exhibit 4E is a daily activities and symptoms report dated February 19, 2015.

-19-

The claimant testified she had an increase in symptoms and was in a
wheelchair at the hearing. She testified she had recently given birth and that
she lacked the strength to hold the infant in her lap.27 None of the records even
hints that she lacks the strength to do that. Those types of erroneous statement
[sic] detract from the reliability of her testimony.
After careful consideration of the evidence, the undersigned finds that
the claimant’s medically determinable impairments could reasonably be
expected to produce at least some of the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and limiting effects
of these symptoms are not entirely consistent with the medical evidence and
other evidence in the record for the reasons explained in this decision.
***
Under SSR 16-3p, the claimant’s allegations and symptom evaluation
have been evaluated. The undersigned has evaluated the claimant’s limitations
that are relevant to the claims made, and assessed the intensity, persistence,
and limiting effects of the individual’s symptoms. While the claimant has
made allegations of being unable to walk, her exams, including the most recent
exams, showed that she had only slightly reduced strength in her lower
extremities and full strength in her upper extremities (Exh. 12F/06-17).28
The claimant also used a wheelchair but there is no indication that it
was prescribed by a medical source. The claimant testified she needed to go

27

Plaintiff’s testimony concerned a child who was born in November 2013 (see Filing
14-7, p. 52), and who was nearly 3½ years old at the time of the hearing on April 24, 2017.
(Plaintiff’s attorney mistakenly stated the child was born in November 2014, at which time
Plaintiff was pregnant with her fifth child.) Plaintiff testified she experienced arm weakness
after the birth of her fourth child and needed to hold onto furniture when walking. Plaintiff
also testified the wheelchair made it easier to care for her youngest child, who was born in
June 2015, because she was able to hold him in her arms, feed him a bottle, and change his
diaper. (Filing 14-2, pp. 52-54, 58-59)
28

Exhibit 12F/06-17 includes Dr. Zabad’s progress notes for Plaintiff’s office visits
on March 18, 2015, December 1, 2015, April 5, 2016, and January 4, 2017 (Filing 14-10, pp.
44-53), and the record of a maternal fetal medicine consult at Nebraska Medicine on May 7,
2015 (Filing 14-10, pp. 41-43).

-20-

to the bathroom every 20 minutes but then told her doctor she goes to the
restroom every eight days (Exh. 12F/17).29
At the hearing, she testified that she can perform a sedentary job, if not
her inability to know when she needed to use the restroom.30
Her inconsistencies in the usage of a wheelchair when compared to her
objective physical exams casts doubt on her overall presentation. The
claimant’s allegations she was medically disabled is not consistent with the
medical evidence of record. The detailed analysis above shows the
longitudinal history of the claimant’s treatment, showing that she has been able
to perform work within the residual functional capacity. The objective medical
evidence does not support the claimant’s alleged symptoms of or its limiting
effects. The claimant’s exams are inconsistent with the claimant’s allegations
of disabling symptoms. The objective imaging and exams show that the
claimant had only mild impairment (Exh. 10F/17, 41).31 She has also shown

29

Plaintiff actually told Dr. Zabad on January 4, 2017, that “[s]he has a bowel
movement every 8 days” (Filing 14-10, p. 53). Similarly, on April 5, 2016, Plaintiff reported
to Dr. Zabad that she has “constipation for more than a week followed by explosive diarrhea”
(Filing 14-10, p. 49). On December 1, 2015, Plaintiff told Dr. Zabad “[s]he has bladder
urgency and incontinence,” but “was not constipated” (Filing 14-10, p. 44). When Plaintiff
first saw Dr. Zabad on March 18, 2015, it was noted that she had bladder urgency,
incomplete sensation, and incontinence (Filing 14-10, p. 37). Plaintiff testified at the hearing
that she goes the bathroom every 20 minutes to avoid accidents because “I can feel once I’m
close to urinating, I can feel that I have to but I don’t feel it until right when it’s coming”
(Filing 14-2, pp. 63-64).
30

The ALJ asked Plaintiff if she would be able to work as a security guard, sitting at
a desk and checking IDs as people entered a building. Plaintiff indicated she needs frequent
restroom breaks and also needs to transfer from her wheelchair into a lift chair every hour
to raise her feet in order to prevent swelling. (Filing 14-2, pp. 73-74)
31

Exhibit 10F/17 is the report on a brain MRI that was performed on July 10, 2015.
It found “[n]ew focal areas of active demyelination involving the middle third of the right
corona radiata” and “[r]esolution of previous foci of active demyelination seen on 3/4/2014
(Filing 14-9, p. 18). Exhibit 10F/41 is the report on a brain MRI that was performed on
September 21, 2016. It showed “mild cerebral atrophy without significant change” from the
previous MRI, but an “[o]verall increase in the number” of lesions (Filing 14-9, pp. 41-42).

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good response to treatment, resulting in a wider residual functional capacity
(Exh. 4F/06-10).32
While the claimant has otherwise alleged she is unable to work, the
limitations evidenced by the objective medical record do not support these
allegations. The claimant described the alleged symptoms and limitations at
the hearing in a manner that is not consistent with the medical record. The
limitations found by the providers during the exams in the record are
consistent with the ability to perform work related activities. The exams show
that she retained good strength, range of motion, and sensation (Exh. 4F/06-10;
12F/19).33 Therefore, when the entirety of the claimant’s record is assessed, the
claimant’s case has not been presented in a way that allows for a finding that
they were disabled.
(Filing 14-2, pp. 26-27, 30-31)
The ALJ determined that Plaintiff’s use of a wheelchair was inconsistent with her
physical exams, which “showed that she had only slightly reduced strength in her lower
extremities and full strength in her upper extremities” (Filing 14-2, p. 30). However, those
physical exams also showed that Plaintiff had a broad-based gait, could not toe, heel, or
tandem walk, was Romberg positive, and was considered a fall risk. See Dr. Zabad’s progress
notes (Filing 14-10, pp. 39, 46, 50, 55). Other coordination issues were also noted. Viewing
the record as a whole, the ALJ’s focus on muscle strength was misplaced. See, e.g., Monhart
v. Comm’r of Soc. Sec., No. 1:17 CV 790, 2018 WL 3772732, at *8 (N.D. Ohio Aug. 9,
2018) (holding that ALJ’s “reliance on muscle strength testing to undermine findings of
muscle coordination is inapposite,” and remanding for reconsideration by Commissioner of
whether claimant’s MS met Listing 11.09A).
The ALJ also found that Plaintiff’s use of a wheelchair “casts doubt on her overall
presentation.” Such a credibility determination runs counter to the Commissioner’s directive
that “[t]he focus of the evaluation of an individual’s symptoms should not be to determine
whether he or she is a truthful person.” SSR 16-3p, 82 Fed. Reg. at 49467, 2017 WL
32

Exhibit 4F/6-10 includes Dr. Anid Kumar’s office notes regarding his examination
of Plaintiff on December 17, 2014, and January 11, 2015 (Filing 14-7, pp. 75-79).
33

Exhibit 12F/19 includes results of Dr. Zabad’s examination of Plaintiff on January
4, 2017 (Filing 14-10, p. 55).

-22-

5180304, at *2. “Rather, [the ALJ] will focus on whether the evidence establishes a
medically determinable impairment that could reasonably be expected to produce the
individual’s symptoms and given the adjudicator’s evaluation of the individual’s symptoms,
whether the intensity and persistence of the symptoms limit the individual’s ability to
perform work-related activities ....” Id.
In addition, the ALJ observed that “there is no indication that [the wheelchair] was
prescribed by a medical source” (Filing 14-2, p. 30). Regardless of whether a script was
written, the record shows that the McCook Clinic was instrumental in getting Plaintiff fitted
for a manual wheelchair in August 2016 (Filing 14-10, pp. 13-14, 27-28). The record also
shows that a physician at the McCook Clinic prescribed crutches for Plaintiff in March 2015
(Filing 14-10, p. 33). The crutches had been recommended by Plaintiff’s physical therapist
because Plaintiff was having difficulty walking with two canes (Filing 14-8, p. 20).
Referencing brain MRIs that were performed in July 2015 and September 2016, the
ALJ concluded that “objective imaging and exams show that [Plaintiff] had only mild
impairment” (Filing 14-2, p. 31). But when the neurologist, Dr. Zabad, reviewed the first of
these MRIs with Plaintiff on April 5, 2016, her assessment was “[c]linically definite RRMS
with very active disease and high burden of disease on the spinal cord and moderate on the
brain” (Filing 14-10, p. 51). Dr. Zabad had made the same assessment on March 18, 2015,
when she reviewed the brain MRI that was performed in March 2014 (Filing 14-10, p. 40).
Comparing the MRIs, Dr. Zabad noted that the July 2015 brain MRI showed “3 new CEL
[contrast-enhancing lesions]” since March 2014 (Filing 14-10, p. 51). The September 2016
brain MRI, which was ordered by Dr. Zabad, also showed an “[o]verall increase in the
number” of lesions as compared to the July 2015 brain MRI (Filing 14-9, pp. 41-42). “ALJs
must not succumb to the temptation to play doctor and make their own independent medical
findings.” Pate-Fires v. Astrue, 564 F.3d 935, 947 (8th Cir. 2009) (quoting Rohan v. Chater,
98 F.3d 966 (7th Cir.1996).
Next, referencing Dr. Anid Kumar’s examinations of Plaintiff on December 17, 2014,
and January 11, 2015, the ALJ determined that Plaintiff “has also shown good response to
treatment” (Filing 14-2, p. 31). While Plaintiff’s condition had improved since she was
examined by Dr. Davakumaran J. Kumar on November 19, 2014, and showed additional

-23-

improvement since Dr. Anid Kumar’s first examination, the record does not show Plaintiff
was receiving any treatment other than physical therapy during this period of time.
It must also be noted that Plaintiff has been diagnosed with relapsing-remitting MS,
which the ALJ seems not to have taken into account. “Courts have long recognized that
multiple sclerosis is a progressive disease for which there is no cure and which is subject to
periods of remission and exacerbation.” Tyser v. Astrue, No. 4:09CV3078, 2010 WL
2541255, at *10 (D. Neb. June 17, 2010).
While multiple sclerosis is not per se disabling, the ALJ in evaluating a
claimant with MS must consider “the frequency and duration of the
exacerbations, the length of the remissions, and the evidence of any permanent
disabilities.” [Wilcox v. Sullivan, 917 F.2d 272, 277 (6th Cir.1990)]. Since at
least 1984, the Social Security regulations have recognize that “[i]n conditions
which are episodic in character, such as multiple sclerosis ... consideration
should be given to frequency and duration of exacerbations, length of
remissions, and permanent residuals.” 20 C.F.R. Ch. III, Pt. 404, Subpt. P,
App. 1, § 11.00(D). Thus, “‘[w]hen a claimant with multiple sclerosis applies
for social security benefits, it is error to focus on periods of remission from the
disease to determine whether the claimant has the ability to engage in
substantial gainful employment .’” Hopkins v. Commissioner of Social Sec.,
2009 WL 1360222 at *16, Case No. 1:07-cv-964 (S.D. Ohio May 14, 2009)
(quoting Jones v. Secretary of HHS, 35 F.3d 566 (6th Cir.1994)
(unpublished)).
Id. (reversing and remanding for award of benefits after finding the ALJ failed to consider
the progressive nature of plaintiff’s MS and improperly focused on periods of remission).
Finally, again referencing Dr. Anid Kumar’s office notes and also the results of Dr.
Zabad’s examination of Plaintiff on January 4, 2017, the ALJ found “exams show that
[Plaintiff] retained good strength, range of motion, and sensation” (Filing 14-2, p. 31). When
Dr. Kumar saw Plaintiff on January 12, 2015, she was walking with the help of a cane (Filing
14-7, p. 79). At the office visit to Dr. Zabad two years later, Plaintiff, who was without her
crutches, ambulated by holding onto the wall, was spastic parapetic, worse on the left side,
and had some slapping of the left foot” (Filing 14-10, p. 55). Dr. Zabad also noted on
examination, as she had previously, that Plaintiff displayed bilateral dysmetria with heel-toshin (HTS) testing and no rebound (Filing 14-10, p. 55).

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After examining Plaintiff’s testimony, the ALJ turned to a discussion of medical
opinions, giving “little weight” to a “multiple sclerosis medical source statement” that was
provided by Plaintiff’s treating physician at the McCook Clinic in April 2017, “some weight”
to the opinions of the state agency physicians who reviewed Plaintiff’s medical records
through February 2015, and “scant weight” to the January 2017 “incapacity statement” PA-C
Powell provided to the Nebraska Department of Human Services. No opinions were sought
from any of the treating neurologists. The ALJ stated:
As for the opinion evidence, on April 13, 2017 the claimant’s treating
doctor, Mark Serbousek, M.D., submitted an incomplete and contradictory
statement on the claimant’s abilities (Exh. 14F/1).34 The undersigned gives
many of those conclusions little weight. He writes his conclusion that she is
“wheelchair bound” and cannot stand more than five minutes, but there is no
testing or exams by Dr. Serbousek to corroborate this finding. He provides no
factual support for those conclusions. He has no basis for concluding she can
stand no more than five minutes. He has no way of knowing that other than
what she may have told him. There has been no testing to find that the
claimant is was [sic] unable to stand beyond the five minute limit or unable to
walk with a cane, these assertions when considered with the lack of testing,
indicate a heavy reliance on the claimant’s reporting rather than the objective
testing done during exams.
Similarly, he concludes that the claimant would be off task 25 percent
or more during a normal workday, but there is no mention of any
concentration, persistence or pace difficulties in the exam notes and the
claimant showed no problems in these areas during the hearing (Exh. 14F/0104). There is no apparent factual foundation for any of his opinions and he did
not provide any. Finally, there are several areas that are “unknown” to Dr.
Serbousek, including if there was any reproducible fatigue of motor function
with substantial muscle weakness (Exh. 14F/02).
Looking at the State agency findings, at the initial level, State agency
medical consultant, Arthur Weaver, D.O., found the claimant had a severe
impairment due to multiple sclerosis (Exh. 1A/05). Dr. Weaver stated the
claimant could occasionally lift and carry 20 pounds and frequently carry 10
pounds. The claimant could sit for six hours in an eight-hour workday and
stand and/or walk for six hours in an eight-hour workday. The claimant’s

34

This medical source statement was signed by both Dr. Serbousek and his physicians
assistant, David Powell (Filing 14-10, p. 73).

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limitations on pushing or pulling were the same as the ability to lift and carry
but she may use a cane to assist in balancing but it was not required for
ambulation (Exh. 1A/06). The claimant could occasionally climb ramps and
stairs and never climb ladders, ropes, or scaffolds (Exh. 1A/06). She could
occasionally balance, stoop, kneel, crouch, and crawl (Exh. 1A/07). The
claimant should avoid concentrated exposure to extreme cold, extreme heat,
vibration, and hazards (Exh. 1A/07).
At the reconsideration level, Jerry Reed, M.D., another State agency
medical consultant, found the same severe impairment and affirmed the
physical residual functional capacity as written at the initial level (Exh.
3A/07).
These findings are given some weight. There has [sic] been additional
physical exams and objective imaging that was not available to those
consultants and, obviously, was not considered during their evaluations. To the
extent the above residual functional capacity varies from these opinions, this
variation is attributable to the testimony and additional evidence that was not
yet available to the State agency medical consultants.35
The undersigned gives scant weight to medical opinions of David
Powell, P.A.C. who stated the claimant would need childcare 24 hours a day,
seven days a week because she was incapacitated (Exh. 11F/34).36 Statements
that a claimant is “disabled”, “unable to work”, can or cannot perform a past
job, meets a Listing or the like are not medical opinions but are administrative
findings dispositive of a case, requiring familiarity with the Regulations and
legal standards set forth therein. Such issues are reserved to the Commissioner,
who cannot abdicate his statutory responsibility to determine the ultimate issue
of disability. Opinions on issues reserved to the Commissioner, such as those
of the doctors reported above, can never be entitled to controlling weight, but
must be carefully considered to determine the extent to which they are
35

The state agency medical consultants determined that Plaintiff could perform light
work (i.e., she could lift no more than 20 pounds at a time and frequently lift or carry objects
weighing up to 10 pounds). See 20 C.F.R. § 416.967(b). The ALJ determined that Plaintiff
was limited to sedentary work (i.e., she could lift no more than 10 pounds at a time and
occasionally lift or carry articles like docket files, ledgers, and small tools). See 20 C.F.R.
§ 416.967(a). The ALJ also specified that Plaintiff would require the use of a cane but could
continue the normal job duties, including the lifting and carrying of objects.
36

Exhibit 11F/34 is the incapacity statement PA-C Powell prepared for the Nebraska
Department of Health and Human services on January 3, 2017 (Filing 14-10, p. 35).

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supported by the record as a whole or contradicted by persuasive evidence (20
CFR 404.1527(d)(2) and Social Security Ruling 96-Sp.).
(Filing 14-2, pp. 30-31)
The medical source statement (Exhibit 14F/01) that Plaintiff’s counsel submitted to
the McCook Clinic asked: “Does your patient have significant and persistent disorganization
of motor function in two extremities resulting in sustained disturbance of gross and dexterous
movement or gait and station?” Dr. Serbousek and PA-C Powell answered in the affirmative
and explained: “Pt wheelchair bound. Has functional use of upper extremities.” (Filing14-10,
p. 70) Similarly, in the statement PA-C Powell completed for the Nebraska Department of
Health and Human Services in January 2017 (Exhibit 14F/34), he checked a box to indicate
Plaintiff was incapacitated (defined as having “any physical or mental illness, impairment
or defect which is so severe as to eliminate the caretaker’s ability to provide care for his/her
children”) and explained that Plaintiff is restricted by “[i]mmobility secondary to MS,” such
that she “is wheel chair bound” and [r]equires aid to transfer” (Filing 14-10, p. 35).
“Whether the findings for an individual’s impairment meet the requirements of an
impairment in the listings is usually more a question of medical fact than a question of
medical opinion. Many of the criteria in the listings relate to the nature and severity of
impairments; e.g., diagnosis, prognosis and, for those listings that include such criteria,
symptoms and functional limitations. In most instances, the requirements of listed
impairments are objective, and whether an individual’s impairment manifests these
requirements is simply a matter of documentation. To the extent that a treating source is
usually the best source of this documentation, the adjudicator looks to the treating source for
medical evidence with which he or she can determine whether an individual’s impairment
meets a listing. When a treating source provides medical evidence that demonstrates that an
individual has an impairment that meets a listing, and the treating source offers an opinion
that is consistent with this evidence, the adjudicator’s administrative finding about whether
the individual’s impairment(s) meets the requirements of a listing will generally agree with
the treating source’s opinion. Nevertheless, the issue of meeting the requirements of a listing
is still an issue ultimately reserved to the Commissioner.” SSR 96-5P, Titles II & XVI: Med.

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Source Opinions on Issues Reserved to the Comm’r, 61 Fed. Reg. 34471, 34473, 1996 WL
374183, at *3 (S.S.A. July 2, 1996) (emphasis supplied); see 20 C.F.R. § 416.927.37
“Under 20 CFR 404.1527(e) and 416.927(e), some issues are not medical issues
regarding the nature and severity of an individual’s impairment(s) but are administrative
findings that are dispositive of a case; i.e., that would direct the determination or decision of
disability.” Id., 1996 WL 374183, at *2. “Whether an individual’s impairment(s) meets or
is equivalent in severity to the requirements of any impairment(s) in the listings” is one such
issue. Id. “Nevertheless, [the Commissioner’s] rules provide that adjudicators must always
carefully consider medical source opinions about any issue, including opinions about issues
that are reserved to the Commissioner.” Id. “Because treating source evidence (including
opinion evidence) is important, if the evidence does not support a treating source’s opinion
on any issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of
the opinion from the case record, the adjudicator must make “every reasonable effort” to
recontact the source for clarification of the reasons for the opinion.” Id. at 344474, 1996 WL
374183, at *6.
The ALJ identified Dr. Serbousek as a treating source, but did not specifically discuss
his opinion that Plaintiff has “significant and persistent disorganization of motor function in
two extremities resulting in sustained disturbance of gross and dexterous movement or gait
and station.” Instead, the ALJ stated there were “no testing or exams by Dr. Serbousek” to
corroborate “his conclusion that [Plaintiff] is ‘wheelchair bound’ and cannot stand more than
five minutes,” or that Plaintiff is “unable to stand beyond the five minute limit or unable to
walk with a cane.” The ALJ inferred there was “heavy reliance on the [Plaintiff’s] reporting
rather than the objective testing done during exams.” The ALJ does not appear to have made
any effort to contact Dr. Serbousek for clarification of the reasons for his opinion that
Plaintiff’s impairments met the level of severity for Listing 11.09A (under the version of the
listing that was referenced in the ALJ’s decision).

37

Social Security Ruling 96-5p has been rescinded, effective for claims filed on or
after March 27, 2017, as being inconsistent with Revisions to Rules Regarding the Evaluation
of Medical Evidence, 82 Fed. Reg. 5844, 2017 WL 168819 (Jan. 18, 2017). See Rescission
of Social Security Rulings 96-2p, 96-5p, and 06-3p, 82 Fed. Reg. 15,263, 2017 WL 1105348
(Mar. 27, 2017). This ruling still applies to Plaintiff’s claim, however.

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“Well-settled precedent confirms that the ALJ bears a responsibility to develop the
record fairly and fully, independent of the claimant’s burden to press his case.” Combs v.
Berryhill, 878 F.3d 642, 646 (8th Cir. 2017) (citations omitted). “The ALJ’s duty to develop
the record extends even to cases ... where an attorney represented the claimant at the
administrative hearing.” Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004).
The ALJ’s decision elsewhere mentions that Plaintiff was seen by PA-C Powell on
September 1, 2016, but no reference is made to his notations that on examination, Plaintiff
was “unable to rise from wheelchair unassisted” and “not able to walk unassisted,” with her
“weakness ... severe enough that [she is] not able to manage with cane, crutch or walker”
(Filing 14-10, pp. 13, 15). The ALJ’s decision also makes no reference to PA-C Powell’s
examination of Plaintiff on April 7, 2016, when she presented in a wheelchair (Filing 14-10,
p. 16), or to his examination of Plaintiff on August 12, 2016, when it was noted that Plaintiff
was unable to rise or walk without assistance (Filing 14-10, p. 15). In addition, there is no
mention that PA-C Powell’s treatment plan on August 12, 2016, included the notation,
“Started Wheelchair” (Filing 14-10, p. 15).
Although a physicians assistant is not an “acceptable medical source” under the
Commissioner’s regulations, see 20 C.F.R. § 416.902(a), “opinions from any medical source
on issues reserved to the Commissioner must never be ignored.” SSR 96-5p, 61 Fed. Reg.
at 34472, 1996 WL 374183, at *3. “The adjudicator is required to evaluate all evidence in
the case record that may have a bearing on the determination or decision of disability,
including opinions from medical sources about issues reserved to the Commissioner. If the
case record contains an opinion from a medical source on an issue reserved to the
Commissioner, the adjudicator must evaluate all the evidence in the case record to determine
the extent to which the opinion is supported by the record.” Id.
The Commissioner’s regulations also provide that “[t]he adjudicator generally should
explain the weight given to opinions from [medical sources who are not acceptable medical
sources] or otherwise ensure that the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning,
when such opinions may have an effect on the outcome of the case.” 20 C.F.R. §
416.927(f)(1). In this case, the ALJ gave “scant” weight to PA-C Powell’s opinion that

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Plaintiff is “wheel chair bound” simply because he checked a box indicating that Plaintiff
was “incapacitated” for purposes of receiving child care.
V. CONCLUSION
For the various reasons discussed above, the ALJ’s decision is not supported by
substantial evidence on the record as a whole. Specifically, the ALJ did not make a proper
assessment at step three of the 5-step sequential analysis as to whether the Plaintiff’s severe
impairment meets or equals Listing 11.09A. This finding makes it unnecessary to discuss
alleged errors occurring at steps four and five. Because the case will be remanded for
reconsideration, it is also unnecessary to discuss Plaintiff’s constitutional challenge to the
ALJ’s authority to adjudicate her claim, or the Commissioner’s waiver argument. See, e.g.,
Mann v. Berryhill, No. 4:18-CV-3022, 2018 WL 6421725, at *8 (D. Neb. Dec. 6, 2018)
(noting that claimant could reassert Appointments Clause claim on remand, and
Commissioner could decide whether to assign a different ALJ to the case).
Accordingly,
IT IS ORDERED that the decision of the Commissioner is reversed pursuant to
sentence four of 42 U.S.C. § 405(g) and the case is remanded for further proceedings
consistent with the foregoing opinion. Final judgment will be entered by separate document.
March 25, 2019

BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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