McDaniels v. Social Security Administration

Filing 30

OPINION & ORDER by Magistrate Judge Kevin R. Sweazea granting 17 Motion to Remand to Agency (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JINA YVONNE MCDANIEL,
Plaintiff,
v.
No. 16-cv-00496 KRS
NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration,
Defendant.
OPINION AND ORDER GRANTING MOTION TO REVERSE AND/OR
REMAND AND REMANDING TO AGENCY FOR FURTHER PROCEEDINGS
Plaintiff Yvonne McDaniel seeks review of the Social Security Administration’s decision
concluding she is not disabled under Sections 202(e), 223(d), and 1614(a)(3) of the Social
Security Act, 42 U.S.C. §§ 402(e), 423(d), 1382c. With the consent of the parties to conduct
dispositive proceedings in this matter, see 28 U.S.C. §636(c)(1); Fed. R. Civ. P. 73(b), the Court
has considered McDaniel’s motion to reverse and/or remand [Doc. 17], the Commissioner’s
response in opposition [Doc. 21], McDaniel’s reply [Doc 24], as well as meticulously reviewed
the administrative record. The Court now grants the motion and remands the matter to the
agency for further proceedings.
I.

FACTUAL BACKGROUND
A. Plaintiff’s History

McDaniel is now 55. At the time of her alleged disability onset date, December 6, 2004,
she was 44 years old, 1 and by the time the ALJ rendered his decision, McDaniel was 53. In
social-security parlance, McDaniel is a “person closely approaching advanced age.” 20 C.F.R. §

1

Because Disabled Widow’s Benefits are not available until the surviving spouse turns 50, McDaniel could not have
obtained them until, at the earliest, November 1, 2010, her 50th birthday.
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404.1563(d) (requiring consideration of age along with a severe impairment(s) and limited work
experience may seriously affect your ability to adjust to other work”).
McDaniel completed only the sixth grade and gave birth to her daughter, Kymberly,
when she was 15. She married Johnnie McDaniel at that age, and the two remained together
until his death from liver cancer in 2004. Kymberly lives with McDaniel at McDaniel’s home
and according to McDaniel, takes care of her. McDaniel has limited work experience, most
recently as a housecleaner and previously as a sales clerk. She has not sought employment since
before Johnnie died because of her limited education as well as physical and mental difficulties.
After her husband died, McDaniel was diagnosed as suffering from agoraphobia. She
further lists “generalized anxiety disorder with panic attacks, depression, irritable bowel
syndrome, chronic headaches, and significant back pain” as preventing her from obtaining and
maintaining employment.
B. Procedural History
On November 14, 2011, McDaniel filed an application for Disabled Widows Benefits as
well as a prospective application for supplement security income. McDaniel alleged a December
6, 2004 onset date, the day her husband died. The applications were denied both initially and on
reconsideration. On May 8, 2014, Administrative Law Judge Michael S. Hertzig conducted a
hearing pursuant to McDaniel’s request for review. McDaniel appeared pro se with her daughter,
Kymberly. Both testified during the 30-minute hearing. The ALJ issued a written decision on
June 16, 2014 denying benefits because McDaniel “has not been under a disability within the
meaning of the Social Security Act at any time through the date of this decision.” On March 25,
2016, the ALJ’s decision became the Commissioner’s when the Appeals Council denied

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McDaniel’s request for review. McDaniel filed the instant complaint in this Court on May 27,
2016 seeking reversal of that determination.
II. STANDARD
This Court reviews the agency’s decision to determine whether it is supported by
substantial evidence and the agency applied the correct legal standards. See Hendron v. Colvin,
767 F.3d 951, 954 (10th Cir. 2014). If substantial evidence supports the conclusion that the
plaintiff is not disabled and the ALJ followed the correct legal standard, the plaintiff is not
entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). The term
“substantial evidence” means that which “a reasonable mind might accept as adequate to support
a conclusion.” Id. at 1118 (citation and internal quotation marks omitted). The Court may not,
however, re-weigh the evidence, try the issues de novo, or substitute its judgment for
Commissioner’s. See Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005); Lax v. Astrue,
489 F.3d 1080, 1084 (10th Cir. 2007). Even if the Court could reach the opposite conclusion, the
decision must stand if the record as a whole is not “overwhelmed by other evidence” to the
contrary or unless a “mere scintilla” supports it. Salazar v. Barnhart, 468 F.3d 615, 621 (10th
Cir. 2006).
III. ANALYSIS
A. Disability Framework
The Court’s main task in reviewing the ALJ’s decision is to determine whether the
plaintiff is disabled as defined under the Social Security Act. “Disability” under the Act is a
plaintiff’s 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
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U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). As here, when the plaintiff’s application is
denied initially and on reconsideration, the ALJ employs a five-step sequential analysis to
evaluate disability. Steps one through four require the plaintiff to prove (1) she is not engaged
in “substantial gainful activity”; (2) she has a “severe medically determinable” “impairment” “or
a combination of impairments” that either has lasted or is expected to last at least one year; (3)
the plaintiff’s alleged impairments meet or equal one of the presumptively disability impairments
the agency has listed; and (4) she is unable to perform her “past relevant work.” 20 C.F.R. §
404.1520(a)(4)(i–iv). At Step 5, the Commissioner must show the plaintiff retains the residual
functional capacity (“RFC”) to perform work in the national economy in light of her age,
education, and work experience. See Grogan, 399 F.3d at 1261.

B. The ALJ’s Determination
In evaluating McDaniel, the ALJ concluded that she has not engaged in substantial
gainful activing since December 6, 2004 (step I). Further, the ALJ found McDaniel suffered
from “affective disorder [and] anxiety order” as “severe impairments,” but that her claimed
headaches, irritable bowel syndrome, and hypertension were “non-severe” (step II). At step III,
the ALJ considered the digestive system (Listing 5.01), mental disorders (Listing 12.01),
affective disorders (Listing 12.04) and anxiety related disorders (12.06) in deciding McDaniel
did not have an impairment that met or equaled a listing. The ALJ reasoned that McDaniel did
not satisfy the listings criteria because, he found, she had mild restriction of her activities of daily
living, moderate difficulties with social functioning, no deficits with concentration, persistence
or pace, and had no episodes of decompensation for an extended duration.
The ALJ next determined that McDaniel had the RFC “to perform a full range of work at
all exertional levels but with the following non-exertional limitations: [McDaniel] is able to
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interact with the general public on an occasional basis.” In reaching the foregoing conclusion,
the ALJ found the “medically determinable impairments could reasonably be expected to cause
some of the alleged symptoms; however, [McDaniel’s] statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible[.]”
At step IV, the ALJ found that McDaniel had no past relevant work. Nonetheless, the
ALJ determined she could perform jobs that existed significant numbers in the national
economy. Ultimately, the ALJ concluded that Plaintiff “has not been under a disability, as
defined in the Social Security Act,” from the alleged onset date through the date of the decision.
C. Challenges to the ALJ’s Decision
McDaniel assigns two errors to the ALJ’s determination that she is not disabled under the
Social Security Act. First, McDaniel insists the ALJ incorrectly rejected the contrary opinions of
her treating providers. Second, McDaniel claims the ALJ improperly cherry picked from the
medical opinions he did rely on to reach his ultimate conclusion. The Court agrees in part with
the first argument and does not reach the second.
1. The ALJ’s rejection of treating sources.
McDaniel submitted opinions from three medical providers, Nurse Practitioner Edith
Iwan, Monique Gibson, MD, and Nurse Practitioner Clarissa Juarez. Iwan asked that McDaniel
be “consider[ed] for disability because [her] health conditions make working for her very
difficult.” According to Iwan, McDaniel “has extreme anxiety and agoraphobia and is unable to
drive a car so that going out for a job for 8 hours would be impossible.” On the physical side,
Iwan stated McDaniel suffers from “chronic daily headaches, irritable bowel syndrome, chronic
lumbar pain, hypertension, and insomnia[,] [and] [a]ll of these conditions make concentrating on
job skills in a work setting very difficult.”
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Dr. Gibson opined that McDaniel has “chronic pain syndrome and generalized anxiety
disorder with agoraphobia,” which she characterized as “severe and incapacitating, and currently
not well controlled.” Dr. Gibson further suspected McDaniel has “some underlying PTSD,”
explained McDaniel was set for follow up treatment with a “Psychiatric Practitioner,” and would
be monitored monthy. Dr. Gibson concluded “Ms. McDaniel is disabled and unable to be
gainfully employed, indeed she is unable to partake in normal social activity.”
Dr. Gibson submitted other correspondence explaining “McDaniel is currently stable,”
though she “has difficulty leaving her home without her daughter accompanying her.” 2 Dr.
Gibson confirmed McDaniel “has been unable to be gainfully employed during [the year she has
been under Gibson’s care] due to her agoraphobia,” which Dr. Gibson said “is unlikely to
resolve.” Practitioner Juarez concluded McDaniel’s “symptoms would interfere significantly
with any attempt to maintain employment.” Juarez also indicated that McDaniel was receiving
psychiatric services, including therapy, taking medication, and would be “monitored and
assessed routinely.”
The Court agrees with the ALJ that these statements are largely conclusory and some
improperly touch on the ultimate issue reserved to the Commissioner, whether McDaniel is
disabled.

See Soc. Sec. Rul. 96-5p, 1996 SSR LEXIS 2, at *6, 1996 WL 374183, at *2

(“[T]reating source opinions on issues that are reserved to the Commissioner are never entitled to
controlling weight or special significance.”). The Court is also cognizant of what appear to be
inconsistencies in the record about McDaniel’s limitations. The problem is, however, the ALJ
neither sought clarification from these treating sources nor adequately explained why he afforded
them only limited weight. These two errors require remand.
2

The Court also recognizes that Dr. Gibson’s second report was not available to the ALJ. On remand, the agency
may fully consider it.
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a. Obligation to follow up with medical providers
There is little doubt that “[a] social security disability hearing is nonadversarial,”
meaning the ALJ has a duty to both ensure “an adequate record is developed” and obtain
“pertinent, available medical records, which come to his attention.” Maes v. Astrue, 522 F.3d
1093, 1096-1098 (10th Cir. 2008). As part of the non-adversarial process, “the ALJ generally
must recontact the claimant’s medical sources for additional information when the record
evidence is inadequate to determine whether the claimant is disabled.” Maes, 522 F.3d at 1097;
Vigil v. Astrue, 2008 U.S. Dist. LEXIS 43728, *3, 2008 WL 2275458 (D. Colo. June 3, 2008)
(explaining “[t]he treating physician . . . must be re-contacted when there is a conflict or
ambiguity in the medical source reports”). This obligation takes on a greater significance when a
plaintiff is unrepresented, as was McDaniel during the administrative proceedings. See, e.g.,
Poulin v. Bowen, 817 F.2d 865, 870 (D.C. Cir. 1987).
Although the Court is concerned with what appears to be some record evidence of
McDaniel’s ability to do some of activities the three sources say she cannot, this conflict only
underscores the need for the ALJ to seek clarification, especially because McDaniel was not
represented in the administrative phase. To the extent the treating sources simply conclude
disability, the ALJ should develop the record as to why. Where the treating sources make
unsupported conclusions, the ALJ needs to understand the bases to fully assess disability. On
remand, the agency must re-contact these providers. Without this information, the Court is
unable to assess the propriety of the ALJ’s determination that McDaniel is not disabled.
b. Assessing treating medical sources
The “treating physician rule” requires the ALJ to give controlling weight to the opinions
of these medical sources unless their assessments are unsupported by medically accepted
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laboratory and diagnostic techniques or inconsistent with other substantial evidence in the
record. See Langley, 373 F.3d 1116, 1119 (10th Cir. 2004). Even if either aspect is deficient—
and the treating physician’s opinion is not entitled to controlling weight—the provider is still
entitled to deference[.]” Id. The ALJ must make a specific finding as to the deference or weight
to which the opinion is entitled by examining the following factors: (1) “the length of the
treatment relationship and examination frequency”; (2) “nature and extent of the treatment
relationship”; (3) the extent to which the provider’s opinion “is supported by relevant evidence”;
(4) “consistency between the opinion and the record as a whole”; (5) whether the provider “is a
specialist in the area upon which an opinion is rendered”; and (6) other factors brought to the
ALJ's attention which tend to support or contradict the opinion.” Id. The ALJ must give “good
reasons,” sufficiently specific for purposes of subsequent review, “for the weight assigned to the
treating source’s medical opinion and the reason for that weight.” Id (citation omitted). To reject
an opinion outright, the ALJ “the must then give specific, legitimate reasons for doing so.” Id.
(citation omitted).
Contrary to McDaniel’s suggestion, the ALJ did not completely reject Iwan, Gibson, and
Juarez’s observations. Instead, he afforded them little weight. In so doing, the ALJ identified
inconsistencies in the record. He explained that “[t]reatment notes do not support the frequency
of treatment or degree of symptomatology.” For example, McDaniel’s counselor reported she
had only attended 11 sessions between 2009 and 2011. Additionally, McDaniel herself reported
at times that her anxiety symptoms improved and at one point “pulled herself together and was
doing things.” In fact, other providers commented she refused additional therapy because
McDaniel felt she was doing better and did not need it. In consultative examinations, McDaniel
related that her medications assisted with her anxiety and agoraphobia; Excedrin helped alleviate
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headaches; she was able to dress herself, feed herself, cook, do dishes, go shopping and climb
stairs; she could walk a hundred yards and sit for twenty minutes; and McDaniel had an active
driver’s license and drove.
Problematically, however, the ALJ did not tie the inconsistencies to any provider except
Iwan. Consequently, Dr. Gibson’s assessment is entitled to controlling weight 3 as is Practitioner
Juarez’s because the record does not reflect how the conflicts relate to their diagnoses and
prognoses and the ALJ made no comment as to medical acceptability of any diagnostic
techniques. See Langley, 373 F.3d 1119 (a treating source opinion is entitled to controlling
weight unless unsupported by substantial evidence in the record or medically unacceptable). This
omission is fatal. The Court may not undertake this task for the Commissioner, even though
there is a plausible argument that McDaniel could sustain gainful employment. See id (requiring
the ALJ to follow the correct legal standards). Regardless, and even if the Court engaged in a
harmless error analysis, the ALJ should have had contacted these providers as explained above
for additional information to understand the inconsistencies better and for this Court to have a
complete record for review.
In terms of Iwan, the ALJ was permitted to move to the next step and afford her opinion
some degree of significance other than controlling weight.

He was required, however, to

examine the six factors in 20 C.FR. § 404.1527 in affording Iwan’s assessment “little” weight.
The ALJ did not fully do so.

3

The Court, of course, recognizes that Dr. Gibson and Practitioner Juarez’s conclusions as to disability itself are not
entitled to significant weight, and the ALJ made that point abundantly clear. The ALJ, however, failed to recognize
that the opinions included information beyond a simple ultimate conclusion such that the remainder is entitled to
controlling weight. For example, aside from opining McDaniel “is disabled,” which can and should be disregarded,
Dr. Gibson also identified chronic pain syndrome and generalized anxiety disorder with agoraphobia, and possibly
post-traumatic stress disorder, as medically determinable impairments. She indicated that she had referred
McDaniel to a psychiatric practitioner, and would be “following [McDaniel] closely on a monthly basis. “ Finally,
Dr. Gibson indicated McDaniel “is unable to partake in normal social activity.”.
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Although the ALJ did note many inconsistencies with the record and the conclusory
nature of Iwan’s opinion, which speak only to factors three and four regarding support for the
assessment and consistency, he did not give implicit or explicit consideration to the remainder,
including McDaniel’s treating relationship with Iwan, its nature and length, as the regulations
require. The failure to give a complete analysis means the ALJ did not provide a complete basis
for the Court to review his decision to afford little weight to Iwan’s opinion.
2. The ALJ’s reliance on other medical opinions
McDaniel asserts that the ALJ improperly cherry picked from the remainder of the
medical evidence in arriving at his conclusion that she is not disabled. The Court finds it
unnecessary to reach this additional claim, since the claim may be affected by the findings on
remand. See Robinson v. Barnhart, 366 F.3d 1078, 1085 (10th Cir. 2004) (declining to reach the
plaintiff’s step five claims because they may be affected by resolution of the case on remand)
IV.

CONCLUSION

For the reasons stated above, the Court concludes that the Commissioner’s decision
should be remanded for additional consideration consistent with this opinion. Accordingly, it is
ORDERED that McDaniel’s Motion to Reverse or Remand [Doc. 17] is GRANTED and this
matter is REMANDED for additional proceedings consistent with this decision.

_________________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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