DAVID D. NOCE, Magistrate Judge.
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.
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).
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.
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. (
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.
On August 23, 2011, because she was diagnosed Grave's disease, elevated antibodies, and a possible thymoma,
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. (
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. (
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. (
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 normal muscle tone, normal fine finger movement, and 5/5 strength without atrophy. (Tr. 407.) Dr. Kos recommended that plaintiff slowly taper Prednisone
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. (
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. (
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. (
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. (
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 IVIg
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. (
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. (
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 husband and her child, aged five. (
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. (
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. (
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. (
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). (
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. (
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. (
At Step Five the ALJ, with the testimony of a VE, found that plaintiff was unable to perform any past work. (
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.
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);
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 relevant work (PRW).
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.
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."
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. (
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. (
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." (
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."
Although the ALJ is responsible for determining RFC based on all relevant evidence
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. (
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. (
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.
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
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
The ALJ formed his credibility opinion on three grounds. First, plaintiff never reported any significant muscle weakness in her extremities to any physician. (Tr. 17-18.) 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."
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 for discrediting the testimony."
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.
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."
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.
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. 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." (
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 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.
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
Under the five-step regulatory framework, the ALJ must consider whether plaintiff's impairment meets or equals a listed impairment.
The listing for myasthenia gravis provides two situations where a claimant's symptoms meet its requirements for a conclusive disability finding:
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.)
While it is within the ALJ's authority to discredit or disregard evidence, he must at least state a legitimate basis for his finding.
Therefore, the ALJ's brief, conclusory discussion of Step Three is legally insufficient and requires reversal and remand.
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.