McDaniel v. Astrue

Filing 35

ORDER OF REMAND: Order reversing and remanding case for rehearing pursuant to sentence 4 of 42 U.S.C. 405(g). Case remanded to Commissioner of Social Security. Signed by Chief Judge David R. Herndon on 5/30/14. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEBRA E. McDANIEL,
Plaintiff,
Civil No. 12-cv-1000-DRH-CJP

vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant. 1

MEMORANDUM and ORDER
HERNDON, Chief Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Debra E. McDaniel seeks
judicial review of the final agency decision denying her Supplemental Security
Income (SSI) benefits pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in June, 2009, alleging disability beginning on
January 1, 2000. (Tr. 11). After holding an evidentiary hearing, ALJ Joseph L.
Heimann denied the application for benefits in a decision dated May 25, 2011.
(Tr. 11-20).

The Appeals Council denied review, and the decision of the ALJ

became the final agency decision. (Tr. 1). Administrative remedies have been

Carolyn W. Colvin was named Acting Commissioner of Social Security on February 14, 2013. She
is automatically substituted as defendant in this case. See Fed. R. Civ. P. 25(d); 42 U.S.C. §405(g)
("Any action instituted in accordance with this subsection shall survive notwithstanding any change
in the person occupying the office of Commissioner of Social Security or any vacancy in such
office.").

1

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exhausted and a timely complaint was filed in this Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1.

The ALJ erred in determining plaintiff’s RFC by failing to include all
limitations supported by the evidence and by improperly analyzing the
medical records.

2.

The ALJ failed to properly evaluate plaintiff’s credibility.
Applicable Legal Standards

To qualify for SSI, a claimant must be disabled within the meaning of the
applicable statutes. 2 For these purposes, “disabled” means the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. §423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C.
§423(d)(3).

“Substantial gainful activity” is work activity that involves doing

2

The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are
found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. As is relevant to this case, the
DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing medical
considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations.
Most citations herein are to the DIB regulations out of convenience.

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significant physical or mental activities, and that is done for pay or profit. 20
C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520. Under this
procedure, it must be determined: (1) whether the claimant is presently
unemployed; (2) whether the claimant has an impairment or combination of
impairments that is serious; (3) whether the impairments meet or equal one of the
listed impairments acknowledged to be conclusively disabling; (4) whether the
claimant can perform past relevant work; and (5) whether the claimant is capable of
performing any work within the economy, given his or her age, education and work
experience. Simila v. Astrue, 573 F.3d 503, 512-513 (7th Cir. 2009); Schroeter v.
Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
The Seventh Circuit Court of Appeals has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the
listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an applicant's residual
functional capacity (RFC) and ability to engage in past relevant work. If
an applicant can engage in past relevant work, he is not disabled. The
fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in
other work. If the applicant can engage in other work, he is not
disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
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This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must
determine not whether Ms. McDaniel was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th
Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)).
The Supreme Court has defined substantial evidence as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).

In reviewing for substantial

evidence, the entire administrative record is taken into consideration, but this
Court does not reweigh evidence, resolve conflicts, decide questions of credibility,
or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d
1384, 1390 (7th Cir. 1997). However, while judicial review is deferential, it is not
abject; this Court does not act as a rubber stamp for the Commissioner. See,
Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Heimann followed the five-step analytical framework described above.
He determined that Ms. McDaniel had only been sporadically employed in the past
and that none of her work rose to the level of substantial gainful activity. He found
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that she had severe impairments of cervical spine narrowing and spondylosis, mild
degenerative disc disease of the lumbosacral spine, old fractures of the clavicles,
minimal obstructive lung disease, mild coronary artery disease, personality
disorder not otherwise specified, and a history of alcohol and substance abuse. He
determined that her substance abuse was in remission and did not adversely affect
her overall mental status or functioning.

He further determined that her

impairments did not meet or equal a listed impairment.
The ALJ found that Ms. McDaniel’s allegations about her impairments and
limitations were not credible. He determined that she had the residual functional
capacity (RFC) to perform work at the light exertional level, with some physical and
mental limitations. She had no past relevant work. Based on the testimony of a
vocational expert, the ALJ found that plaintiff was not disabled because she was
able to do jobs which exist in significant numbers in the local and national
economies.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff.
The first version of the administrative record, filed at Doc. 18, was
incomplete. The Commissioner filed a corrected version at Doc. 30. The Court
cites to the corrected version herein.

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1.

Agency Forms

Plaintiff was born in 1962, and was almost 38 years old on the alleged onset
date of January 1, 2000. (Tr. 154).
Plaintiff filed three prior applications for SSI. (Tr. 14). In the most recent
prior application, filed in March, 2007, plaintiff alleged disability beginning on
January 1, 2000. (Tr. 153). That application was denied on August 1, 2007, and
plaintiff did not appeal. (Tr. 77-81, 165).
In a report filed in support of the current application, plaintiff said she
became unable to work as of January 1, 2000, because of emphysema, heart
problems, broken collar bones, problems with her neck, shoulders and back, and
depression. (Tr. 169).
Agency records indicate that plaintiff had total lifetime earnings of $3,056.36
through 2010. She earned about $545 in 2000. She earned nothing in 2001, and
about $580 in 2002. She had no earnings from 2003 through 2010. (Tr. 145).
Ms. McDaniel filed an Activities of Daily Living report in August, 2009, stating
that she did very little throughout the day. She said she was in pain all of the time,
and some days she did not get out of bed. (Tr. 187). She had no health insurance
and she had not been able to find a doctor who would treat her because she could
not pay. She said that pain management at Memorial Hospital would not treat her
because she could not pay. (Tr. 194).
2.

Evidentiary Hearing

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Ms. McDaniel was represented by an attorney at the evidentiary hearing on
March 16, 2011. (Tr. 27).
The ALJ asked plaintiff why she chose the date of January 1, 2000, as her
alleged date of onset.

She said she did not know.

(Tr. 33-34).

The ALJ

questioned her about her sporadic work history, and she testified that she had
babies in 1981, 1987 and 1988. She received welfare benefits while her children
were minors. (Tr. 34). After she lost her benefits, she depended on an abusive,
alcoholic boyfriend for financial support. (Tr. 36).
Ms. McDaniel testified that the main problems keeping her from working
were depression and pain in her neck and shoulders. She could not afford pain
medication or medicine for her depression. (Tr. 35-36). She was able to get
some medical treatment after a car accident in October, 2010, only because the
insurance on the car she was riding in covered it. (Tr. 36-37). (Tr. 45).
Plaintiff had not taken any medication since she was hospitalized for
gallbladder removal in February, 2011. Ms. McDaniel testified that, because she
had no health insurance and no money, the only way she could get pain medication
was to go to the emergency room and then try to borrow money to fill the
prescription given to her there. (Tr. 37-38).
Ms. McDaniel testified that her neck hurt constantly. She was able to move
her neck a full range side to side, but moving her neck a lot caused her to have
migraine headaches. Both of her collarbones had been broken in the past and had
not healed correctly. She was able to reach with her arms, but repetitive motions
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caused pain from her wrists to her shoulders and into her neck. (Tr. 38-40). She
was short of breath all the time because of emphysema. She had tried to quit
smoking, but was unable to do so and still smoked a pack a day. She was unable
to afford any medicine for her breathing.

She bummed cigarettes from her

children. She had not seen a doctor for her breathing in years because she had no
insurance and could not afford the medicine anyway. (Tr. 41-42).
Plaintiff saw a doctor for depression, and he gave her samples of Lexapro.
She could not afford to fill the prescriptions he gave her. (Tr. 50). She had been
hospitalized several times after suicide attempts. (Tr. 52-53).
A vocational expert (VE) also testified. The ALJ asked her to assume a
person of plaintiff’s age and work experience who could do work at the light
exertional level, limited to no climbing of ladders, ropes or scaffolds, no exposure to
vibration, and limited to simple routine tasks in a low stress environment with only
occasional decision making and occasional changes in the work setting. The VE
testified that this person would be able to do jobs which exist in the local economy,
such as hostess, cafeteria helper and light housekeeping.

(Tr. 62-63).

If a

restriction to only occasional interaction with the public, coworkers and
supervisors were added, the hostess job would be eliminated. (Tr. 63). If she
were limited to only frequent reaching (as opposed to constant), she could still
perform the cafeteria helper and housekeeping jobs according to the Dictionary of
Occupational Titles descriptions of those jobs. However, in the VE’s experience,
as those jobs are actually performed, a limitation to frequent reaching would
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eliminate those jobs as well. (Tr. 64-66).
3.

Medical Treatment

Ms. McDaniel’s prior application was denied in August, 2007. That denial
“stands as the final decision on her disability through the date of the decision. . . .”
Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007). The Court thus focuses on
medical evidence close to and after that date, while recognizing that earlier evidence
may be considered to the extent that it is relevant to plaintiff’s condition during the
time period in issue. See, Groves v. Apfel, 148 F.3d 809, 810-811(7th Cir. 1998).
There are no treatment records for the period of October, 2006, to May 18,
2008. (Tr. 14).
On May 18, 2008, Ms. McDaniel was admitted through the emergency room
to

St.

Elizabeth’s

Hospital

in

Belleville,

Illinois,

for

depression

and

suicidal/homicidal ideation. She reported that, two or three weeks earlier, she had
passed out after drinking and woken up with bruising. She believed she may have
been raped. Alcohol was “a major problem” for her. A drug screen was positive
for marijuana.

She had impaired concentration, feelings of hopelessness and

helplessness, and lack of appetite. She had received psychiatric care in the past,
but not for the last three years. She had four DUI convictions in the past and had
been in prison for driving on a revoked license.

The Axis I diagnoses were

recurrent major depressive disorder, alcohol dependence, alcohol withdrawal, and
marijuana abuse. The Axis II diagnosis was personality disorder, not otherwise
specified. She was treated with therapy and antidepressant medication. She was
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discharged on May 22, 2008, in improved condition and was to follow up with Dr.
Loynd at the Windsor Center. (Tr. 402-405).
In July, 2008, plaintiff was seen in the emergency room at Belleville
Memorial Hospital. She had been assaulted by her boyfriend, who had hit her with
an axe handle. She was intoxicated. (Tr. 463-468). A CT scan of the head was
negative. (Tr. 475). A CT scan of the abdomen/pelvis showed no acute pathology.
(Tr. 477). A CT of the cervical spine showed marked degenerative changes from
C3 through C7, but no fractures. (Tr. 478).
Plaintiff was seen by a nurse practitioner at State Street Health Center in East
St. Louis, Illinois, three times in 2008. In June, 2008, she was seen for “pain
management.” The NP noted a history of broken clavicles and a bulging disc. Her
clavicles were “deformed.” She had a full range of motion of the neck and back.
The NP noted emphysema and prescribed an inhaler. She also prescribed Flexeril
and Percocet. (Tr. 424). In July, plaintiff came in for a refill of her prescriptions.
No abnormal findings were noted on exam. She complained of pain in her neck
and shoulder. (Tr. 423). In September, the physical exam was again normal.
Plaintiff refused to go to pain management, and the NP explained that she was
“starting to taper off Percocet/Flexeril.” Plaintiff was given some medicine samples
and prescriptions. (Tr. 422).
She returned to the emergency room in November, 2008, complaining of
neck and shoulder pain. She had run out of her medications. There was a note
that she was on Lexapro.

A history of depression was noted.
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(Tr. 433-434).

Exam showed muscle spasm and decreased range of motion in the neck. Her low
back exam was normal with a painless range of motion. (Tr. 435). An x-ray of the
cervical spine showed advanced multilevel degenerative disc disease, stable since
the prior x-ray done in July, 2008. (Tr. 442).
Ms. McDaniel was seen in the emergency room at St. Elizabeth’s Hospital in
December, 2008, following an altercation with her boyfriend.

The doctor’s

impression was domestic dispute/emotional distress and alcohol intoxication.
(Tr. 397-399).
Following the assault with the axe handle, plaintiff was referred by the
emergency room doctor to Dr. Heffner for a neurosurgical consultation.
Heffner saw her in February, 2009.

Dr.

She reported that she had recently been

beaten again. She told him she was unable to afford to see a family doctor or to get
physical therapy.

X-rays and CT scan showed diffuse degenerative changes

throughout the cervical spine with no sign of disc herniation, fracture or nerve
compromise.

Dr. Heffner diagnosed cervical spondylosis and neck pain, and

advised her that she did not need any surgery. He recommended that she seek
treatment such as anti-inflammatory medication and physical therapy from a
primary care physician, but she said she could not afford it. (Tr. 497-498).
The only other documented medical treatment in 2009 consisted of two
emergency room visits. Plaintiff sought emergency room treatment for neck and
shoulder pain and headache in March, 2009. On exam, her neck was not tender
and had a painless range of motion. The diagnosis was cervical strain. She was
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advised to apply heat and was prescribed Darvocet and Flexeril. (Tr. 444-450).
In June, she went to the emergency room for a foot injury. (Tr. 457).
In September, 2009, Dr. Adrian Feinerman performed a consultative
physical examination. Plaintiff said she had shoulder pain since 1989, and neck
pain since a car accident fifteen years earlier. She also complained of pain in her
elbows, wrists and hands. She had been told she had heart disease. She had a
history of alcoholism. She was seeing a psychiatrist for depression and had been
prescribed Lexapro, but she was out of it.

The physical examination was

essentially normal. There was no abnormality of any extremity and no limitation
of motion of any joint. She complained of bilateral shoulder pain after active range
of motion.

Grip strength was strong and equal.

There was no anatomic

deformity of the cervical or lumbar spine, and range of motion was full. Muscle
strength was normal throughout, and there was no muscle spasm or atrophy. Fine
and gross manipulation were normal. (Tr. 507-516).
Harry J. Deppe, Ph.D., performed a psychological examination on the same
day.

Ms. McDaniel noted a long history of excessive alcohol use, and use of

marijuana and crack cocaine in the past. She was under the care of Dr. Loynd, a
psychiatrist, but was not taking any psychotropic medication.

The exam was

basically normal. Her mood was normal and she had a full range of affect. She
was fully oriented. She had no trouble staying focused and her memory was good.
She had good simple reasoning skills. Dr. Deppe concluded that she had fair
ability to maintain attention sufficient to perform simple, repetitive tasks, and fair
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ability to understand and follow simple instructions. (Tr. 490-495).
The transcript is missing some of Dr. Loynd’s records. The earliest record
is dated January 13, 2010, although he states he last saw plaintiff two months
earlier. She was doing well on her medications, with no side effects. Her mood
was good and she denied depressive symptoms. She was continued on Remeron,
Lexapro and Ambien. The doctor gave her samples of Lexapro. (Tr. 546-548).
Plaintiff saw Dr. Loynd again in June, 2010. She reported that she had run
out of medicine and was having a little more stress and anxiety.

She denied

depressive symptoms such as crying spells or suicidal thoughts. Dr. Loynd again
prescribed Remeron, Lexapro and Ambien, and gave her samples of Lexapro. He
encouraged plaintiff to “call back to re-order the Patient Assistance medications as
soon as possible.” 3 (Tr. 549-550).
In July, 2010, plaintiff was taken to the emergency room following a suicide
attempt. She had been drinking heavily, had an argument with her boyfriend, and
took an overdose of Ambien.

She also admitted using marijuana.

She was

discharged to an inpatient psychiatric unit in another hospital after two days. (Tr.
591-593). There are no records of an inpatient stay in the transcript.
Ms. McDaniel went to the emergency room in October, 2010, complaining of
chronic neck and back pain. She was out of pain medication and psychiatric
medication. She said she was unable to afford regular visits to a doctor. She was
“Patient assistance programs are run by pharmaceutical companies to provide free medications to
people who cannot afford to buy their medicine.” http://www.rxassist.org/, accessed on May 27,
2014.
3

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diagnosed with chronic pain and given prescriptions for Lexapro, Vicodin and
Ibuprofen. (Tr. 563-570). Two days later, she returned with neck, shoulder and
back pain following a car accident. She was diagnosed with a shoulder contusion
and strain of the cervical and lumbosacral spine. She was discharged to home
with prescriptions for pain medications. (Tr. 571-579).
Plaintiff returned to the emergency room on November 9, 2010, for
continuing neck and back pain. She had not filled her prescriptions because they
were too expensive.

She was given pain medication and discharged.

(Tr.

580-584).
Ms. McDaniel was seen at a Southern Illinois Healthcare Foundation facility
in November, 2010, and January 25, 2011, for pain in her shoulders, neck and
back. (Tr. 601 -603).
Ms. McDaniel went to the emergency room with chest pain in February, 2011.
A cardiac work-up was negative. She was diagnosed with acute cholecystitis, and
her gallbladder was removed. (Tr. 553-558).
In March, 2011, Southern Illinois Healthcare Foundation requested
authorization from the “third party insurance” (presumably, the insurance carrier
for the vehicle involved in the October, 2010, accident) for a lumbar MRI. (Tr.
599). This was done on April 11, 2011, and showed degenerative disc disease with
bulging disc at L5-S1. There was no thecal sac narrowing and minimal bilateral
neural foraminal narrowing. (Tr. 606-607).
5.

Opinions of Treating Doctors
Page 14 of 19

There are no reports from treating doctors in the transcript.
Analysis
The Court first turns to plaintiff’s challenge to the ALJ’s credibility
determination.
Social Security regulations and Seventh Circuit cases “taken together,
require an ALJ to articulate specific reasons for discounting a claimant's testimony
as being less than credible, and preclude an ALJ from ‘merely ignoring’ the
testimony or relying solely on a conflict between the objective medical evidence and
the claimant's testimony as a basis for a negative credibility finding.” Schmidt v.
Barnhart, 395 F.3d 737, 746-747 (7th Cir. 2005), and cases cited therein. The
credibility findings of the ALJ are to be accorded deference, particularly in view of
the ALJ’s opportunity to observe the witness. Powers v. Apfel, 207 F.3d 431, 435
(7th Cir. 2000).
SSR 96-7p requires the ALJ to consider a number of factors in assessing the
claimant’s credibility, including the objective medical evidence, the claimant’s daily
activities, medication for the relief of pain, and “any other factors concerning the
individual’s functional limitations and restrictions due to pain or other symptoms.”
SSR 96-7p, at *3. “[D]iscrepancies between objective evidence and self-reports
may suggest symptom exaggeration.” Getch v. Astrue, 539 F.3d 473, 483 (7th Cir.
2008).
The ALJ is required to give “specific reasons” for his credibility findings.
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). It is not enough just to
Page 15 of 19

describe the plaintiff’s testimony; the ALJ must analyze the evidence. Ibid. See
also, Terry v. Astrue, 580 F.3d 471, 478 (7th Cir., 2009)(The ALJ “must justify the
credibility finding with specific reasons supported by the record.”)
Of particular relevance here, an ALJ may not conclude that a claimant is
exaggerating her pain and limitations based on lack of medical treatment or failure
to take medication without taking into account the claimant’s inability to afford
treatment. Garcia v. Colvin, 741 F.3d 758, 761-762 (7th Cir. 2013), citing SSR
96-7p, 1996 WL 374186, at *7-8.
The Commissioner concedes that ALJ Heimann specifically discussed two
factors in assessing plaintiff’s credibility, i.e., her sparse work record and the fact
that she was not taking any medication at the time of the hearing. See, Doc. 32, pp.
10-13.
ALJ Heimann found it significant that much of plaintiff’s treatment was
emergency room care, and remarked that she never really had “what can be called
regular medical attention or treatment.” He recognized that she testified that she
could not afford medication or regular medical care, but concluded that this was
not true because she recently had gallbladder surgery. In addition, he stated that
there was “no evidence that she has ever been refused medical treatment because of
inability to pay.” Tr. 17. The ALJ’s conclusions are not supported by the record
and are the result of faulty reasoning.
First, plaintiff’s gallbladder surgery came about after she presented to the
emergency room with apparent chest pain. She was admitted for a cardiac
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work-up, and it was determined that her gallbladder was the cause of her pain.
The ALJ equated plaintiff’s ability to obtain hospital treatment in an emergency
situation with ability to obtain ongoing care from a doctor and to obtain
prescription medications from a pharmacy. This was error. Hospitals face legal
requirements to treat uninsured patients in certain circumstances. See, Beller v.
Health and Hospital Corporation, 703 F.3d 388, 390 (7th Cir. 2012), discussing
the Emergency Medical Treatment and Active Labor Act. Individual doctors and
pharmacies are not similarly required to provide care and medications to patients
who cannot pay.
Secondly, the ALJ overlooked evidence in concluding that there was no
evidence that Ms. McDaniel had ever been refused treatment because of inability to
pay. Plaintiff stated in an agency form that she had not been able to find a doctor
who would treat her without payment and that pain management at Memorial
Hospital would not treat her because she could not pay. See, Tr. 194. There are
repeated references in emergency rooms records to the fact that she had no
insurance and had not been able to afford to fill prescriptions.
This case is remarkably similar to Pierce v. Colvin, 739 F.3d 1046,
1050-1051 (7th Cir. 2014), in which the credibility determination was held to be
erroneous where the ALJ relied heavily on the absence of objective support for
plaintiff’s claim while ignoring her lack of health insurance and misstated some of
the evidence. See also, Morgan v. Astrue, 393 Fed. Appx. 371, 375 (7th Cir.
2010), holding that a credibility determination based on “unsound reasoning” is
Page 17 of 19

erroneous.
The erroneous credibility determination requires remand. “An erroneous
credibility finding requires remand unless the claimant's testimony is incredible
on its face or the ALJ explains that the decision did not depend on the credibility
finding.” Pierce, 739 F.3d at 1051.

Here, plaintiff’s testimony is not incredible

on its face, and it is clear that the decision depended in large part on plaintiff’s
credibility.
It is not necessary to address plaintiff’s other point, but, as in Pierce, the
determination of plaintiff’s RFC will require “a fresh look” after reconsideration of
Ms. McDaniel’s credibility. Ibid. In addition, the Court notes that the current
record does not contain all of Dr. Loynd’s records.
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that Ms. McDaniel is disabled or
that she should be awarded benefits. On the contrary, the Court has not formed
any opinions in that regard, and leaves those issues to be determined by the
Commissioner after further proceedings.
Conclusion
The Commissioner’s final decision denying Debra E. McDaniel’s application
for social security disability benefits is REVERSED and REMANDED to the
Commissioner for rehearing and reconsideration of the evidence, pursuant to
sentence four of 42 U.S.C. §405(g).

Page 18 of 19

The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATE:

Digitally signed by
David R. Herndon
Date: 2014.05.30
10:53:46 -05'00'

May 30, 2014

Chief Judge
United States District Court

2