Sanders v. Social Security Administration

Filing 24

ORDER by Magistrate Judge William P. Lynch granting 13 Motion to Remand to Agency. (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

MARCUS H. SANDERS,
Plaintiff,
v.

CV 16-82 WPL

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

MEMORANDUM OPINION AND ORDER
Marcus Sanders applied for a period of disability and disability insurance benefits
(“DIB”) on December 24, 2011, alleging disability beginning on April 30, 2002, based on
cervical degenerative disc disease, chronic migraines, generalized anxiety disorder, numbness in
the arms and hands, and arthritis. (Administrative Record “AR” 92-93.) After Sanders’s
application was denied at all administrative levels, he filed the instant motion to remand. (Doc.
13.) The Commissioner of the Social Security Administration (“SSA”) filed a response (Doc. 20)
and Sanders filed a reply (Doc. 22). For the reasons explained below, I grant Sanders’s motion to
remand and remand this case for further administrative proceedings consistent with this Order.
STANDARD OF REVIEW
When the Appeals Council denies a claimant’s request for review, the Administrative
Law Judge’s (“ALJ”) decision is the SSA’s final decision. In reviewing the ALJ’s decision, I
must determine whether it is supported by substantial evidence in the record and whether the
correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008).

“Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004) (quotation
omitted). A decision is not based on substantial evidence if other evidence in the record
overwhelms it or if there is a mere scintilla of evidence supporting it. Hamlin v. Barnhart, 365
F.3d 1208, 1214 (10th Cir. 2004). Substantial evidence does not, however, require a
preponderance of the evidence. U.S. Cellular Tel. of Greater Tulsa, L.L.C. v. City of Broken
Arrow, Okla., 340 F.3d 1122, 1133 (10th Cir. 2003). I must meticulously examine the record, but
I may neither reweigh the evidence nor substitute my discretion for that of the Commissioner.
Hamlin, 365 F.3d at 1214. The Court may reverse and remand if the ALJ failed “to apply the
correct legal standards, or to show us that she has done so . . . .” Winfrey v. Chater, 92 F.3d 1017,
1019 (10th Cir. 1996).
SEQUENTIAL EVALUATION PROCESS
The SSA has devised a five-step sequential evaluation process to determine disability.
See Barnhart v. Thomas, 540 U.S. 20, 24 (2003); 20 C.F.R. § 404.1520(a)(4) (2016). If a finding
of disability or nondisability is directed at any point, the ALJ will not proceed through the
remaining steps. Thomas, 540 U.S. at 24. At the first three steps, the ALJ considers the
claimant’s current work activity, the medical severity of the claimant’s impairments, and the
requirements of the Listing of Impairments. See 20 C.F.R. § 404.1520(a)(4), & Pt. 404, Subpt.
P, App’x 1. If a claimant’s impairments are not equal to one of those in the Listing of
Impairments, then the ALJ proceeds to the first of three phases of step four and determines the
claimant’s residual functional capacity (“RFC”). See Winfrey, 92 F.3d at 1023; 20 C.F.R.
§ 404.1520(e). The ALJ then determines the physical and mental demands of the claimant’s past
relevant work in phase two of the fourth step and, in the third phase, compares the claimant’s

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RFC with the functional requirements of his past relevant work to see if the claimant is still
capable of performing his past work. See Winfrey, 92 F.3d at 1023; 20 C.F.R. § 404.1520(f). If a
claimant is not prevented from performing his past work, then he is not disabled. 20 C.F.R.
§ 404.1520(f). The claimant bears the burden of proof on the question of disability for the first
four steps, and then the burden of proof shifts to the Commissioner at step five. See Bowen v.
Yuckert, 482 U.S. 137, 146 (1987); Talbot v. Heckler, 814 F.2d 1456, 1460 (10th Cir. 1987). If
the claimant cannot return to his past work, then the Commissioner bears the burden, at the fifth
step, of showing that the claimant is capable of performing other jobs existing in significant
numbers in the national economy. See Thomas, 540 U.S. at 24-25; see also Williams v. Bowen,
844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step sequential evaluation process in
detail).
FACTUAL BACKGROUND
Sanders is a forty-nine-year-old man with a high school education and a certificate in
automotive technology. (AR 92, 220.) Sanders claims disability beginning on April 30, 2002,
based on cervical degenerative disc disease, chronic migraines, generalized anxiety disorder,
numbness in the arms and hands, and arthritis. (AR 93.) Sanders alleges, among other things, that
he suffers from anxiety, predating his date last insured of December 31, 2002.
I do not address everything in the record, but rather target my factual discussion to the
facts necessary to the disposition of this case.
In a Progress Note dated November 8, 2005, treating physician Amy Schmidt, M.D.,
noted that Sanders had longstanding social anxiety. (AR 463.) Dr. Schmidt continued serving as
Sanders’s treating physician and completed several medical statements on July 28, 2014. Dr.
Schmidt filled out a Medical Assessment of Ability to Do Work-Related Activities (Physical),

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which directed her to “consider [Sanders’s] medical history and the chronicity of findings as
from 2002 to current examination.” (AR 391 (emphasis removed).) Dr. Schmidt also completed a
Medical Assessment of Ability to Do Work-Related Activities (Non-Physical), in which she
found that Sanders has marked limitations maintaining attention and concentration for extended
periods; performing activities within a schedule, maintaining regular attendance, and being
punctual within customary tolerance; maintaining physical effort for long periods without
needing to decrease activity or pace or to rest intermittently; sustaining an ordinary routine
without special supervision; working in proximity to or in coordination with others without being
distracted by them; and completing a normal workday and workweek without interruptions from
pain or fatigue based symptoms; and performing at a consistent pace without an unreasonable
number and length of rest periods. (AR 392.) Additionally, Dr. Schmidt assessed that Sanders
has slight limitations making simple work-related decisions. (Id.)
The ALJ held a hearing on August 27, 2014, at which Sanders, represented by an
attorney, testified, as well as Sanders’s wife and an impartial vocational expert (“VE”). Sanders
testified that, prior to December 31, 2002, he experienced anxiety when around others and that
he had “severe problems with . . . authority and the judging of [his] physical limitation.” (AR
71.) Sanders stated that he began taking anti-anxiety medication in 1998 after it was prescribed
by his neurologist, Dr. Shibuya, and later by treating physician Terrence Reagan, M.D. (AR 72,
79-80.)
The VE testified that a person like Sanders, who was limited to sedentary work with no
overhead reaching, would be able to find other work, based on the VE’s experience. (AR 89.) In
response to a question from Sanders’s attorney, the VE stated that a person like Sanders, who
was limited to sedentary work and experienced marked limitations in maintaining concentration

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and attention or performing activities within a schedule—meaning that the person would be offtask 12% of the day—would not be able to find employment. (Id.)
After the ALJ issued her decision, but before the Appeals Council issued its decision,
Sanders visited Emily Driver Moore, Ph.D., for a psychological evaluation on September 25,
2015. (AR 7.) Dr. Moore reviewed records from Sanders’s current treating physician, Amy
Schmidt, M.D., his previous treating physician, Terrence Reagan, M.D., and additional
physicians, including, Carlos Esparza, M.D., Edward Alter, M.D., Robin Hermes, M.D., and
Claude Gelinas, M.D. (Id.) In addition to reviewing records, Dr. Moore conducted a clinical
interview, a mental status examination, the Montreal Cognitive Assessment, the Beck Depression
Inventory, the Generalized Anxiety Disorder – 7 Questionnaire, and the Personality Assessment
Screener. (AR 14.) Based on all of this information, Dr. Moore diagnosed Sanders with chronic
post-traumatic stress disorder (“PTSD”), provisional social anxiety disorder, rule out bipolar
disorder II, antisocial and/or borderline personality features, and chronic daily headaches by
history. (AR 16.) Dr. Moore went on to conclude that
[i]t is clear from his history that Mr. Sanders’ job performance was negatively
affected by his reactivity to authority, his aggressive behavior, and his
interpersonal distrust and hostility long before his cervical fusion surgeries. . . .
His psychiatric difficulties . . . appear to have impaired his ability to function
adequately in an employment setting long before [2001], as evidenced by his . . .
being terminated from every subsequent position he held due to interpersonal
conflicts and resistance to authority. . . . It appears that his anxiety symptoms have
worsened over the years, possibly exacerbated by the accumulating challenges of
chronic physical pain . . . .
(AR 17 and Doc. 13 Ex. 1 (missing page 11 of Dr. Moore’s report).)
Dr. Moore completed a Medical Assessment of Ability to Do Work-Related Activities
(Mental) on October 24, 2015, that considered Sanders’s “medical history and the chronicity of
findings as from 2002 to current examination.” (AR 19-20 (emphasis in original).) Dr. Moore

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assessed Sanders with slight limitations understanding and remembering very short and simple
instructions, carrying out very short and simple instructions, making simple work-related
decisions, and being aware of normal hazards and taking adequate precautions. (Id.) She assessed
Sanders with moderate limitations remembering locations and work-like procedures, asking
simple questions or requesting assistance, and responding appropriately to changes in the work
place. (Id.) Finally, Dr. Moore assessed Sanders with marked limitations understanding and
remembering detailed instructions, carrying out detailed instructions, maintaining attention and
concentration for extended periods of time, performing activities within a schedule and being
punctual and maintaining regular attendance within customary tolerance, sustaining an ordinary
routine without special supervision, completing a normal workday and workweek without
interruptions from psychologically based symptoms and performing at a consistent pace without
an unreasonable number and length of rest periods, interacting appropriately with the general
public, accepting instructions and responding appropriately to criticism from supervisors, getting
along with coworkers or peers without distracting them or exhibiting behavioral extremes,
maintaining socially appropriate behavior and adhering to basic standard of neatness and
cleanliness, traveling in unfamiliar places or using public transportation, and setting realistic
goals or making plans independently of others. (Id.)
THE ALJ AND APPEALS COUNCIL’S DECISIONS
The ALJ issued her decision on October 27, 2014, and found that Sanders was not
disabled prior to December 31, 2002. (AR 46.) The ALJ clarified from the outset that her
analysis focused on the period from April 30, 2002—the alleged onset date—through December
31, 2002—Sanders’s date last insured. (AR 38.) At step one, the ALJ found that Sanders had no
substantial gainful activity after his alleged onset date. (AR 40.) At step, the ALJ determined

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that, prior to December 31, 2002, Sanders suffered from the severe impairments of status post
fusion at C5-C6 with eventual non-union and chronic headaches. (Id.) The ALJ further
determined that Sanders’s alleged anxiety disorder was not a medically determinable impairment
during the period at issue and could not be considered in the disability determination, in part
because the record contains no mention of anxiety until 2013. (AR 41.) At step three, the ALJ
concluded that Sanders did not have an impairment or combination of impairments that met or
equaled a Listing. (Id.)
The ALJ then found that Sanders retained the RFC to perform sedentary work, except
that he could never engage in overhead reaching. (Id.) In making this finding, the ALJ reviewed
Sanders’s testimony, noted that there is minimal objective medical evidence from the period at
issue, and summarized those records. (AR 41-43.) The ALJ gave “[l]ittle weight” to Dr.
Schmidt’s opinion because “it was given over eleven years after the period at issue.” (AR 44.)
Based on this RFC, the ALJ concluded that Sanders could not perform any of his past relevant
work. (AR 45.) Finally, relying on the VE’s testimony that a person such as Sanders who was
limited to sedentary work with no overhead reaching could find other work, the ALJ determined
that Sanders could perform other work in the economy (AR 45-46), and, therefore, was not under
a disability prior to December 31, 2002 (AR 46).
The Appeals Council denied Sanders’s request for review on January 10, 2016. (AR 1.)
The Appeals Council reviewed the evidence from Dr. Moore and found that it was about a later
time and therefore did not affect the ALJ’s decision through December 31, 2002. (AR 1-2.)
DISCUSSION
Sanders argues that, among other errors, the ALJ improperly rejected the opinion of
treating physician Dr. Schmidt and that the Appeals Council erred by failing to consider the

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evidence from Dr. Moore as pertinent, rendering the ALJ’s decision unsupported by substantial
evidence. The parties agree that Dr. Schmidt is and was, as early as 2004, Sanders’s treating
physician. Because I agree with both of these claims of error, I find that the Commissioner
committed legal error as described below and do not reach any additional claims of error.
When confronted with the opinion of a treating physician, an ALJ must complete a
sequential two-step process for evaluating that opinion. Krauser v. Astrue, 638 F.3d 1324, 1330
(10th Cir. 2011). First, the ALJ must decide whether a treating doctor’s opinion commands
controlling weight. Id. A treating doctor’s opinion must be accorded controlling weight “if it is
well-supported by medically acceptable clinical or laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the record.” Id. (citing Watkins v. Barnhart, 350
F.3d 1297, 1300 (10th Cir. 2003) (applying SSR 96-2p, 1996 WL 374180, at *2 (July 2, 1996)).
If a treating doctor’s opinion does not meet this standard, the opinion is still entitled to deference
to some extent as determined under the second step of the process. Id. In this second step, the
ALJ must determine the weight to accord the treating physician by analyzing the treating
doctor’s opinion against the several factors provided in 20 C.F.R. § 404.1527(c) and must “give
good reasons, tied to the factors specified . . ., for the weight assigned.” Id. According an opinion
little weight is tantamount to rejecting the opinion. See Chapo v. Astrue, 682 F.3d 1285, 1291
(10th Cir. 2012) (equating “according little weight to” with “effectively rejecting” a medicalsource opinion).
Sanders contends that the ALJ failed to conduct the controlling weight analysis under
Krauser and impermissibly collapsed the two-step analysis into a single step. (Doc. 13 at 18-19.)
The ALJ’s only discussion regarding Dr. Schmidt’s opinion is that she gave the opinion little
weight because it was rendered more than a decade after Sanders’s date last insured. (AR 43-44.)

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After determining that Dr. Schmidt’s opinion was not entitled to controlling weight, the
ALJ was required to apply the factors in 20 C.F.R. § 404.1527(c) to determine how much weight
to give the opinion. These factors include 1) the examining relationship; 2) the treatment
relationship, including length, frequency, and nature of the relationship; 3) supportability of the
opinion with medical evidence; 4) consistency of the opinion with the record as a whole; 5)
specialization of the physician; and 6) other factors brought to the ALJ’s attention. 20 C.F.R.
§ 404.1527(c). While the Commissioner is correct that the ALJ is not required to discuss every
factor in every case, Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), the ALJ is
required to consider every factor. Here, the ALJ discussed none of the factors and it is unclear
whether she considered them.
“[A] treating physician may provide a retrospective diagnosis of a claimant’s condition.”
Potter v. Sec’y of Health & Human Servs., 905 F.2d 1346, 1348 (10th Cir. 1990). Dr. Schmidt
began treating Sanders no later than 2004, purports to have reviewed records from Sanders’s
previous treating physician, and notes early on that Sanders had been treated for social anxiety
disorder for quite some time prior to their treatment relationship. Additionally, Dr. Schmidt’s
opinion contains a retrospective analysis, as evidenced by the direction to consider Sanders’s
impairments from 2002 forward.
Under these circumstances, and in light of the ALJ’s failure to analyze even one of the
requisite factors, I find that the ALJ committed legal error by failing to adequately apply the
treating physician analysis laid out in Krauser and failing to provide good reasons for the weight
assigned to Dr. Schmidt’s opinion.

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While the ALJ’s failure to properly conduct the treating physician analysis with respect
to Dr. Schmidt is sufficient, in itself, to remand the case, I also address the issue of Dr. Moore’s
opinion, as it may helpful on remand.
When the Appeals Council evaluates whether the ALJ’s decision is supported by “the
weight of the evidence currently of record,” 20 C.F.R. § 404.970(b), it must consider whether the
newly submitted evidence is “new,” “material,” and “chronologically pertinent.” Threet v.
Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003); Krauser, 638 F.3d at 1328. Evidence is “new”
when it is not “duplicative or cumulative,” “material” when “there is a reasonable possibility that
[it] would have changed the outcome,” and “chronologically pertinent” when it “relates to the
period before the ALJ’s decision.” Threet, 353 F.3d at 1191. “If the Appeals Council fails to
consider qualifying new evidence, the case should be remanded for further proceedings.”
Chambers v. Barnhart, 389 F.3d 1139, 1143 (10th Cir. 2004) (alteration removed) (quotation
omitted).
The medical source statements filled out by Dr. Moore all clearly request an evaluation
from 2002 forward. Dr. Moore’s report indicates that she reviewed records from Sanders’s
treating physicians, going back before 2002. In her statement, Dr. Moore writes that Sanders’s
“psychiatric difficulties . . . appear to have impaired his ability to function adequately in an
employment setting long before [2001]” and have worsened over the years. (AR 17 and Doc. 13
Ex. 1 (missing page 11 of the Report).)
Dr. Moore’s opinion meets the three part test: the evidence is new—there are no other
psychological statements in the record; the evidence is material—Dr. Moore’s opinion could
establish that an anxiety disorder was a severe medical impairment prior to 2002 and must be

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included in his RFC; and the evidence is chronologically pertinent—the instructions and record
review clearly indicate that Dr. Moore’s opinion dated at least as early as 2002.
The Commissioner’s argument against consideration of Dr. Moore’s opinion is that the
opinion has no bearing on Sanders’s condition prior to his date last insured. As discussed above,
this argument is not persuasive.
The Appeals Council committed reversible error by failing to consider Dr. Moore’s
opinion.
CONCLUSION
The Commissioner’s decision in this case is reversed and remanded for further
proceedings consistent with this Order. As discussed above, the ALJ committed legal error by
failing to properly apply the treating physician analysis to Dr. Schmidt’s opinion, and the
Appeals Council erred by failing to consider the qualifying new evidence submitted from Dr.
Moore. On remand, the ALJ will consider Dr. Moore’s statement and will analyze Dr. Schmidt’s
opinion in accordance with Krauser.
It is so ordered.
____________________________________
William P. Lynch
United States Magistrate Judge

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.

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