McDaniel v. Berryhill

Filing 21

MEMORANDUM AND ORDER -IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. [Docs. 1 , 16 .] IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commissioner affir ming the decision of the administrative law judge.IT IS FURTHER ORDERED that the Clerk of Court shall substitute Andrew M. Saul for Nancy A. Berryhill in the court record of this case.. Signed by Magistrate Judge Nannette A. Baker on 09/19/2019. (AAS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JEFFREY DEAN MCDANIEL,
Plaintiff,
v.
ANDREW M. SAUL1,
Commissioner of Social Security,
Defendant.

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Case No. 4:18-CV-30 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Jeffrey Dean McDaniel’s appeal regarding the denial of
supplemental security income (“SSI”) for a closed period under the Social Security Act. The Court
has jurisdiction over the subject matter of this action under 42 U.S.C. § 405(g). The parties have
consented to the exercise of authority by the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c). [Doc. 8.] The Court has reviewed the parties’ briefs and the entire administrative record,
including the transcript and medical evidence. Based on the following, the Court will affirm the
Commissioner’s decision.
Issues for Review
McDaniel presents three issues for review. First, he asserts that the Administrative Law
Judge (“ALJ”) committed reversible error by finding that he was not disabled between October
20, 2014 and March 5, 2017. Second, McDaniel contends that the ALJ committed reversible error

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At the time this case was filed, Nancy A. Berryhill was the Acting Commissioner of Social Security. Andrew M.
Saul became the Commissioner of Social Security on June 4, 2019. When a public officer ceases to hold office while
an action is pending, the officer’s successor is automatically substituted as a party. Fed. R. Civ. P. 25(d). Later
proceedings should be in the substituted party’s name and the Court may order substitution at any time. Id. The Court
will order the Clerk of Court to substitute Andrew M. Saul for Nancy A. Berryhill in this matter.

by failing to properly assess the opinion evidence from treating psychiatric nurse practitioner
Melissa Fischer.

Third, McDaniel asserts that the residual functional capacity

(“RFC”)

determination is legally erroneous, because it failed to include the ALJ’s finding that his mental
impairments preclude even unskilled work on a sustained basis. The Commissioner asserts that
the ALJ’s decision is supported by substantial evidence in the record as a whole and should be
affirmed.
Standard of Review
The Social Security Act defines disability as an “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 has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 416(i)(1)(A).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). This Court reviews the decision of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is less
than a preponderance, but enough that a reasonable mind would find adequate support for the
ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The Court determines whether
evidence is substantial by considering evidence that detracts from the Commissioner’s decision as
well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006). The Court
may not reverse just because substantial evidence exists that would support a contrary outcome or
because the Court would have decided the case differently. Id. If, after reviewing the record as a
whole, the Court finds it possible to draw two inconsistent positions from the evidence and one of
those positions represents the Commissioner’s finding, the Commissioner’s decision must be
affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).

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The Court must affirm the Commissioner’s decision so long as it conforms to the law and
is supported by substantial evidence on the record as a whole. Collins ex rel. Williams v. Barnhart,
335 F.3d 726, 729 (8th Cir. 2003).

“In this substantial-evidence determination, the entire

administrative record is considered but the evidence is not reweighed.” Byes v. Astrue, 687 F.3d
913, 915 (8th Cir. 2012).
Discussion
Factual Background
McDaniel filed applications for disability insurance benefits and SSI with an alleged onset
date of January 1, 1999. (Tr. 210-17.) McDaniel subsequently amended his alleged onset date to
October 20, 2014. (Tr. 225.) Because this amended onset date was past his date last insured for
disability insurance benefits, December 31, 2009, McDaniel only proceeded on his SSI claim
before the ALJ. (Tr. 11, 33-34.)
McDaniel asserted the following impairments in support of his SSI claim: (1) back injury
and pain, (2) bipolar affective disorder, (3) knee pain, (4) high blood pressure, and (5) shoulder
injury and pain. (Tr. 232.) His claim was denied at the hearing level and he requested a hearing
before an ALJ. (Tr. 130-31.) The ALJ held two administrative hearings on August 6, 2016 and
December 21, 2016. (Tr. 31-110.) McDaniel and vocational expert (“VE”) Brenda Young testified
at the administrative hearings. After the administrative hearings, the ALJ gave McDaniel a
partially favorable ruling, finding that he was disabled beginning March 6, 2017. (Tr. 11-24.)
McDaniel requested a hearing from the Appeals Council, which denied review. Therefore, the
ALJ’s decision was the final decision of the Commissioner. McDaniel then filed this action for a
review of the Commissioner’s final decision.

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Opinion Evidence
First, the Court will address the ALJ’s decision to give little weight to nurse practitioner
Melissa Fischer’s opinion regarding McDaniel’s mental impairments. McDaniel contends that the
ALJ should have given controlling weight to Fischer’s opinion.
Fischer treated McDaniel three times that are documented in the record between April 2016
and June 2016. (Tr. 461-469.) At the initial consultation in April 2016, the mental status
examination indicated that McDaniel was well groomed and cooperative, with an agitated
psychomotor activity, flat affect, depressed anxious mood, and normal speech. (Tr. 462.) His
thought process was intact and his estimated level of intellectual functioning was good. (Tr. 463.)
McDaniel denied homicidal or suicidal ideation, but he acknowledged seeing shadows. (Tr. 463.)
Fischer observed that McDaniel’s recent memory and concentration were poor. (Tr. 463.) She
noted that McDaniel was oriented to time, place, and person. (Tr. 463.) Fischer opined that
McDaniel’s mental impairment was bipolar disorder I, mixed, most recent episode depressed,
severe. (Tr. 463.) At his next visit, McDaniel’s mental status examination was within normal
limits, he reported he was doing well with an improved mood 2. (Tr. 464.) At his June 27, 2016
visit, McDaniel reported that he was feeling “blue” and “feels like sleeping all day.” (Tr.
465.) Fischer observed a low, blunted affect and that McDaniel was unshaven. (Tr. 465.)
On August 3, 2016, Fischer completed a checklist Mental Impairment Questionnaire
regarding McDaniel. (Tr. 467-69.) She indicated that he had bipolar disorder I most recent
depression. (Tr. 467.) She opined that Fischer had moderate restriction in his activities of daily
living, marked difficulties in maintaining social functioning, and extreme deficiencies of

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The progress note from this visit was undated, but the ALJ and McDaniel’s representative assumed the visit was in
May 2016.

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concentration, persistence, or pace. (Tr. 468.) She also indicated that he had a medically
documented history of a chronic organic mental, schizophrenic, etc., or affective disorder of at
least two years’ duration that has caused more than a minimal limitation of ability to do basic work
activity, with symptoms or signs currently attenuated by medication or psychosocial support. (Tr.
468.) Further, she opined that he has a residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or change in the environment would
be predicted to cause him to decompensate and had a current history of 1 or more years’ inability
to function outside a highly supportive living arrangement with an indication of continued need
for such an arrangement. (Tr. 468.) She indicated that McDaniel would be absent from work or
have to leave early 4 or more times per month. (Tr. 469.) She indicated that he was not a
malingerer or did not tend to exaggerate. (Tr. 469.) Finally, she indicated that there was no current
abuse of alcohol or other substances. (Tr. 469.)
The ALJ stated that he discounted Fischer’s opinion, because the form was supplied by
McDaniel’s representative, the form did not adequately delineate the requirements in each domain,
such that the findings in the form would likely require institutionalization. The ALJ also stated
that the opinion contradicted with treatment notes that indicate improvement in his substance abuse
remission and his ability to regularly concentrate and interact in a social setting as noted by
McDaniel’s involvement with Alcoholics Anonymous (“AA”).
Social Security separates information sources into two main
groups: acceptable medical sources and other sources. It then
divides other sources into two groups: medical sources and
non-medical sources. Acceptable medical sources include
licensed physicians (medical or osteopathic doctors) and
licensed or certified psychologists. According to Social
Security regulations, there are three major distinctions
between acceptable medical sources and the others: (1) Only
acceptable medical sources can provide evidence to establish
the existence of a medically determinable impairment,
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(2) only acceptable medical sources can provide medical
opinions, and (3) only acceptable medical sources can be
considered treating sources,

Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007) (emphasis in original) (internal citations
omitted).

Medical sources include “nurse practitioners, physician assistants, naturopaths,

chiropractors, audiologists, and therapists.” 20 C.F.R. § 404.913(d) 3. “Information from these
other sources cannot establish the existence of a medically determinable impairment. Instead,
there must be evidence from an “acceptable medical source” for this purpose.” SSR 06-03P, 2006
WL 2329939 at *2. The parties do not dispute the existence or type of McDaniel’s medically
determinable impairments.
“[I]nformation from such other sources, [however], may be based on special knowledge of
the individual and may provide insight into the severity of the impairment(s) and how it affects the
individual’s ability to function.” Id. “Evidence provided by ‘other sources’ must be considered
by the ALJ; however, the ALJ is permitted to discount such evidence if it is inconsistent with the
evidence in the record.” Lawson v. Colvin, 807 F.3d 962, 967 (8th Cir. 2015); see also Raney v.
Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005) (in determining what weight to give to other
evidence, the ALJ has more discretion and is permitted to consider any inconsistencies found

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Several significant revisions of Social Security regulations and reports became effective recently. The Social
Security Report regarding evaluation of symptoms in social security disability claims was effective on March 28, 2016
and republished on October 25, 2017. See SSR 16-3P, 2017 WL 5180304, Social Security Ruling 16-3p, Policy
Interpretation Ruling Title II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of
Individual Statements (October 25, 2017). Also, many Social Security regulations were amended effective March 27,
2017. Per 20 C.F.R. §§ 416.325, 416.927, the Social Security Administration uses the regulations in effect at the time
that this claim was filed. SSR 16-3p states “our adjudicators will apply SSR 16-3p when we make determinations and
decisions on or after March 28, 2016. When a Federal court reviews our final decision in a claim, we also explain that
we expect the court to review the final decision using the rules that were in effect at the time we issued the decision
under review.” SSR 16-3p at 1.

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within the record). Therefore, the ALJ is required to consider Fischer’s opinion in evaluating
McDaniel’s impairments.
Based on a review of the evidence in the record as whole, the Court finds that the ALJ did
not err in granting little weight to Fischer’s opinion. The ALJ could discount Fischer’s opinion
for being inconsistent with other evidence in the record. Fischer’s finding that he had marked
difficulties in social functioning was inconsistent with McDaniel’s reports of going to AA
meetings three times per week and then the social gatherings afterwards. Other substantial
evidence in the record also supports the ALJ’s decision. For example, Fischer only saw McDaniel
three times before she wrote this opinion, which is not sufficient to provide an opinion on a
claimant’s ability to function in the workplace. See e.g. Randolph v. Barnhart, 386 F.3d 835, 840
(8th Cir. 2004) (three visits insufficient to formulate an opinion of claimant’s ability to function in
the workplace). Next, the form was a checklist form completed with no substantive content and it
was not supported by the treatment notes referenced in the opinion. “The checklist format,
generality, and incompleteness of the assessments limit the assessments’ evidentiary value.”
McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011) (citing Holstrom v. Massanari, 270 F.3d 715,
721 (8th Cir. 2001)). Based on the foregoing, the Court finds that the ALJ did not err in assigning
little weight to Fischer’s opinion.
RFC Determination
McDaniel contends that the ALJ’s finding of no-disability between October 20, 2014 and
March 5, 2017, is contrary to the findings that due to McDaniel’s advanced age, he was disabled
as of March 6, 2017. McDaniel asserts that the RFC determination should have contained a finding
that he was unable to perform even unskilled work due to his vocationally significant mental
impairments, as the ALJ found after his age category changed.

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The Social Security Administration (“SSA”) uses a five-step analysis to determine whether
a claimant seeking disability benefits is in fact disabled. 20 C.F.R. § 416.920(a)(1). First, the
claimant must not be engaged in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). The
ALJ found that McDaniel had not engaged in substantial gainful activity since October 20, 2014,
the amended alleged onset date. (Tr. 14.)
Second, the claimant must establish that he or she has an impairment or combination of
impairments that significantly limits his or her ability to perform basic work activities and meets
the durational requirements of the Act. 20 C.F.R. § 416.920(a)(4)(ii). The ALJ found that since
October 20, 2014, McDaniel had the severe impairments of status post open reduction, internal
fixation of the right ankle, obesity, degenerative disc disease of the lumbar and thoracic spine,
degenerative joint disease of the left shoulder, status post remote right shoulder arthroscopy,
depression, bipolar disorder, and substance abuse in remission. (Tr. 14.) The ALJ found that
McDaniel’s impairments of left knee pain and loss vision in the left eye were not severe
impairments and high blood pressure was not a medically determinable impairment. (Tr. 14.)
Third, the claimant must establish that his or her impairment meets or equals an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.920(a)(4)(iii). The ALJ then
determined that McDaniel did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in the applicable regulations. (Tr.
14.)
If the claimant’s impairments do not meet or equal a listed impairment, the SSA determines
the claimant’s residual functional capacity (“RFC”) to perform past relevant work. 20 C.F.R.
§ 416.920(e). The RFC is defined as the most the claimant can do despite his or her limitations,
and includes an assessment of physical abilities and mental impairments. 20 C.F.R.

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§ 416.945(a)(1). The RFC is a function-by-function assessment of an individual’s ability to do
sustained work-related physical and mental activities on a regular and continuing basis. 4 SSR 968p, 1996 WL 374184, at *1 (July 2, 1996). It is the ALJ’s responsibility to determine the
claimant’s RFC based on all relevant evidence, including medical records, observations of treating
physicians and others, and the claimant’s own descriptions of his limitations. Pearsall, 274 F.3d
at 1217. “It is the claimant’s burden, and not the Social Security Commissioner’s burden, to prove
the claimant’s RFC.” Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003). An RFC
determination made by an ALJ will be upheld if it is supported by substantial evidence in the
record. See Cox, 471 F.3d at 907. “Because a claimant’s RFC is a medical question, an ALJ’s
assessment of it must be supported by some medical evidence of the claimant’s ability to function
in the workplace.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). There is no requirement,
however, that an RFC finding be supported by a specific medical opinion. Hensley, 829 F.3d at
932 (RFC affirmed without medical opinion evidence); Myers v. Colvin, 721 F.3d 521, 527 (8th
Cir. 2013) (same); Perks v. Astrue, 687 F.3d 1086, 1092-93 (8th Cir. 2012) (same).
Next, the ALJ determined that McDaniel had the residual functional capacity to perform
light work with the following exceptions:

(1) no climbing ladders, ropes, or scaffolds;

(2) occasional climbing of ramps or stairs, (3) occasional stooping, kneeling, crouching, and
crawling, but no limit in balancing; (4) never reaching overhead with non-dominant upper
extremity; (5) simple, routine, and repetitive tasks, (6) environment free of fast paced quota
requirements involving only simple work related decisions with few, if any, work place changes,
and (7) only occasional interaction with coworkers and never any interaction with the public. (Tr.
16-17.)

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A regular and continuing basis means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR 968p, 1996 WL 374184, at *1.

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Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). The ALJ determined that McDaniel had been
unable to perform any of his past relevant work since October 20, 2014. (Tr. 21.)
If the claimant meets this burden, the analysis proceeds to step five. At step five, the burden
shifts to the Commissioner to establish the claimant maintains the RFC to perform a significant
number of jobs in the national economy. Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). “The
medical-vocational guidelines, or grids, ‘are a set of charts listing certain vocational profiles that
warrant a finding of disability or non-disability.’” Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir.
2012) (citing McCoy, 648 F.3d at 613 (8th Cir. 2011)). “The grids come into play at step five of
the analysis, where the burden shifts to the Commissioner to show that the claimant has the
physical residual capacity to perform a significant number of other jobs in the national economy
that are consistent with her impairments and vocational factors such as age, education, and work
experience.” Phillips, 671 F.3d at 702 (citing Holley v. Massanari, 253 F.3d 1088, 1093 (8th Cir.
2001)). “If the ALJ’s findings as to RFC, age, education, and work experience fit any of the
combinations of those criteria contained in the Tables in Appendix 2 to Part 404, then the ALJ
must reach the conclusion (either disabled or not disabled) directed by the relevant Rule or line of
the applicable Table.” Phillips, 671 F.3d at 702 (quoting Reed v. Sullivan, 988 F.2d 812, 816 (8th
Cir. 1993)).
There are three age categories: a younger person (under age 50), a person closely
approaching advanced age (ages 50-54), and a person of advanced age (age 55 and older). See 20
C.F.R. 416.963(c)-(e). The regulations direct that the age categories not be applied mechanically
in a borderline situation. 20 C.F.R. § 416.963(b). “If a claimant is within a few days to a few
months of reaching an older age category, and using the older age category would result in a

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determination or decision that the claimant is disabled, the agency will consider whether to use the
older age category after evaluating the overall impact of all the factors of the claimant’s case.”
Phillips, 671 F.3d at 702. “To determine whether to apply the claimant’s chronological age or the
higher age, the Council adopted a sliding scale approach whereby the claimant must show
progressively more additional vocational adversity(ies)- to support use of the higher age- as the
time period between the claimant’s actual age and his or her attainment of the next higher age
category lengthens.” Id. “If the claimant does not show “additional adversities justifying use of
the higher age category the adjudicator will use the claimant’s chronological age- even when the
time period is only a few days and the adjudicator need not explain his use of the claimant’s
chronological age.” Id.
If the medical-vocational guidelines do not apply, the Commissioner can rely on the
testimony of a vocational expert to carry the burden of proof of showing that jobs exist in the
national economy that a claimant can perform. Long v. Chater, 108 F.3d 185, 188 (8th Cir. 1997).
“To do this, the Commissioner may pose hypothetical questions to the vocational expert, the
parameters of which do not have to include any alleged impairments that the ALJ has rejected as
untrue.” Id. “The Commissioner may rely on a vocational expert’s response to a properly
formulated hypothetical question to show that jobs that a person with the claimant’s RFC can
perform exist in significant numbers.” Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir. 2005).
If the claimant satisfied all of the criteria under the five-step evaluation, the ALJ will find the
claimant to be disabled. 20 C.F.R. § 416.920(a)(4)(v).
Because McDaniel was within a few months of the age of 55, the ALJ found that he was
an individual of advanced age as of March 6, 2017. (Tr. 21.) Prior to March 6, 2017, the ALJ
found that considering McDaniel’s age, education, work experience, and RFC, there were jobs that

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existed in significant numbers in the national economy that he could have performed. (Tr. 22.)
Beginning, March 6, 2017, the ALJ found that due to McDaniel’s age, education, work experience,
and RFC, there were no jobs that existed in significant numbers in the national economy that
McDaniel could perform. (Tr. 23.) Therefore, the ALJ found that McDaniel was not disabled
prior to March 6, 2017, but became disabled on that date and continued to be disabled through the
date of the decision. (Tr. 23.)
McDaniel’s assertion of error regarding the RFC collapses two different analyses by the
ALJ. “Each step in the disability determination entails a separate analysis and legal standard.”
Lacroix v. Barnhart, 465 F.3d 881, 888 n. 3 (8th Cir.2006). Different steps serve distinct purposes,
the degrees of precision required at each step differ, and the court’s deferential standard of review
precludes it from labeling findings as inconsistent if they can be harmonized. Chismarich v.
Berryhill, 888 F.3d 978, 980 (8th Cir. 2018). In this case, the ALJ evaluated McDaniel under the
standards for a person approaching advanced age through March 5, 2017 and then under the
standard for a person of advanced age from March 6, 2017 going forward.
McDaniel states that the ALJ should have found that he was disabled as a matter of law,
because the ALJ’s decision “does not point to any aspect of the record to support the notion that
by virtue of attaining advanced age [his] mental acuity suddenly lapsed at midnight on his birthday
to a state whereby several mental impairments limited his remaining mental capacities as
insufficient to meet the intellectual and emotional demands of at least unskilled, competitive,
remunerative work on a sustained basis.” In fact, the regulations recognize that there will be
situations where changing from one age category to another (along with other factors) will change
whether the claimant is disabled. The regulations state, “We will not consider your ability to adjust
to other work on the basis of your age alone. In determining the extent to which age affects a

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person’s ability to adjust to other work, we consider advancing age to be an increasingly limiting
factor in the person’s ability to make such an adjustment.” 20 C.F.R. § 416.963(a). The
regulations also state, “We consider that at an advanced age (age 55 and older), age significantly
affects a person’s ability to adjust to other work. Further, the social security regulations address
the transferability of skills for persons of advanced age. 20 C.F.R. § 416.968. The ALJ’s findings
were not contradictory and the Court finds that the ALJ properly applied the legal standards in
formulating McDaniel’s RFC and applying the medical vocational guidelines.
Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial
evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. [Docs. 1, 16.]
IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.
IT IS FURTHER ORDERED that the Clerk of Court shall substitute Andrew M. Saul for
Nancy A. Berryhill in the court record of this case.

NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
Dated this 19th day of September, 2019.

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