Sunderman v. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER REVERSING THE DECISION OF THE COMISSIONER Signed by U.S. District Judge Karen E. Schreier on 2/3/17. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RHONDA K. SUNDERMAN,

4:16-CV-04003-KES

Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,

MEMORANDUM OPINION AND
ORDER REVERSING THE DECISION
OF THE COMMISSIONER

Defendant.
Plaintiff, Rhonda K. Sunderman, seeks review of the decision of the
Commissioner of the Social Security Administration denying her claim for
disability insurance benefits (SSDI) under Title II of the Social Security Act, 42
U.S.C. § 423, and for supplemental security income (SSI) under Title XVI of
that Act, 42 U.S.C. § 1382. The Commissioner opposes the motion and urges
the court to affirm the denial of benefits. For the following reasons, the court
reverses the decision of the Commissioner.
PROCEDURAL HISTORY
Sunderman filed an application for SSDI and SSI on November 8, 2012,
alleging disability since January 1, 2012. 1 AR 212. Sunderman alleged that she
suffered from fibromyalgia, depression, anxiety, back issues, and stomach

Sunderman later amended her disability onset day to November 5, 2012.
AR 334.
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issues. AR 287. The Commissioner denied Sunderman’s claim on February 11,
2013, and upon reconsideration on June 24, 2013. AR 155, 160, 163.
Sunderman then requested an administrative hearing, AR 168, and appeared
with counsel before Administrative Law Judge (ALJ) Robert Maxwell on April
24, 2014. See AR 75 (transcript of hearing). On July 25, 2014, the ALJ issued
an opinion affirming the denial of benefits. AR 36-55. The Appeals Council
denied Sunderman’s request for review on December 15, 2015. 2 AR 1-7. Thus,
Sunderman’s appeal of the commissioner’s final decision is properly before the
court under 42 U.S.C. § 405(g).
FACTUAL BACKGROUND
Sunderman was born on July 3, 1960. AR 79, 282. At the time of her
hearing before the ALJ, Sunderman was 53 years old. AR 79. Although she did
not graduate from high school, Sunderman obtained her GED in 1982. AR 80,
288. While Sunderman’s complete employment history is unknown, she
reported working a number of jobs between 1994 and 2012 including jobs as a
customer service representative, catalog order clerk, survey taker, and student
loan processor. AR 293. Sunderman explained during her administrative
hearing that she left her most recent job as a credit card customer service
representative in November 2012 because she was unable to complete her
assigned tasks due to constant pain. AR 82, 95-97. Sunderman claims she has
been unable to work since that time. See AR 80, 334.
The Appeals Council received additional evidence from Sunderman—which
was not presented to the ALJ—that is part of the administrative record for this
matter. AR 6.
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Sunderman’s medical history features numerous consultations with
different physicians, psychiatrists and counselors between 2012 and 2014. See
AR 343-71 (treatment records from Falls Community Health between January
30, 2012, and July 3, 2012); AR 372-88 (treatment records from Southeastern
Behavioral Healthcare between January 24, 2012, and August 2, 2012);
AR 405-11 (treatment records from Falls Community Health between November
28, 2012, and April 8, 2013); AR 412-32 (treatment records from Falls
Community Health between April 24, 2013, and July 16, 2013); AR 433-44
(chart notes from Avera Gastroenterology between February 25, 2014, and
February 28, 2014); AR 445-88 (patient records from Sanford USD Medical
Center between December 16, 2013, and December 18, 2013); AR 489-97
(patient records from Sanford Cardiovascular Institute from December 23,
2013); AR 501-24 (therapy notes from Avera Medical Group between November
12, 2013, and April 15, 2014); AR 529-54 (treatment records from between
November 4, 2011, and April 9, 2014); AR 555-62 (treatment records from
Avera Medical Group between January 21, 2014, and July 1, 2014); AR 563-73
(treatment records from Avera Medical Group between May 9, 2014, and July
9, 2014); AR 17-21 (treatment records from Avera Medical Group on September
9, 2014); AR 22-29 (treatment records from Avera Medical Group on September
2, 2014).
Disability reports and Sunderman’s medical records also reveal that
Sunderman had a rigorous drug regimen between 2012 and 2014. Specifically,
Sunderman’s medical providers prescribed the following prescription
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medications to her between 2012 and 2014: clonazepam, lorazepam, and
celexa to treat anxiety (AR 289, 313, 347, 357); zocor to treat high cholesterol
(AR 548-49); citalopram, prozac, paroxetine, cymbalta, trazodone, and abilify to
treat depression (AR 289, 357, 360, 548-49); gabapentin/neurotin and lyrica to
treat fibromyalgia (AR 313, 329, 566); accupril, lisinopril, and benazepril to
treat high blood pressure (AR 329, 411, 542); naproxen to treat inflammation
and pain (AR 407); and aciphex, ranitidine, protonix, and zofran to treat
stomach issues and nausea (AR 313, 360, 548-49).
ADMINISTRATIVE HEARING
During the April 24, 2014, administrative hearing, the ALJ heard
testimony from two witnesses: Sunderman and Warren Haginson, a vocational
expert. As a vocational expert, Haginson is utilized by the Social Security
Administration to help determine whether the claimant possesses the ability to
maintain full-time employment in the local and national economy.
Sunderman, who was represented by counsel at the hearing, 3 testified
regarding her past work history doing customer service type work. AR 80.
Sunderman also explained that she quit her most recent job in November 2012
due to the constant pain she felt in her shoulders, arm, back, and hands while
at work. AR 82. Sunderman also testified that after about ten or fifteen
minutes of keyboarding, her arms and hands would go numb. AR 85. This pain

After the ALJ issued his decision, Sunderman ended her relationship with her
attorney and hired her current attorney to conduct the remainder of her
appeals process. See AR 34-35.
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would last for about thirty minutes before Sunderman was able to get back to
work. Id.
Sunderman also described how her diagnoses of fibromyalgia and
anxiety affected her daily life. At times, the pain from her fibromyalgia would
spread through her whole body and make her “feel like a Gumby.” AR 86. Due
to this, Sunderman stated that her pain would make it feel “like I’m not going
to be able to walk.” Id. Sunderman also explained that she was no longer able
to cross-stitch as much as she used to and could only cross-stich for fifteen or
twenty minutes before her arms would go numb. AR 102-03. Sunderman said
that she was no longer able to cook large meals for her family and instead only
prepared meals requiring easy preparation like TV dinners. AR 104.
Sunderman further testified that her anxiety made even simple things, such as
grocery shopping, very difficult. 4 AR 95.
When questioned by the ALJ, Sunderman testified about her medical
diagnoses and treatment. AR 98-102. The ALJ specifically questioned
Sunderman about her diagnosis of fibromyalgia and her mental health
treatment. Id. The ALJ and Sunderman had the following exchange discussing
Sunderman’s mental health treatment:
Q: Are you under the care of any mental health professional at the
Avera Free Clinic?
A: Yes.
Specifically Sunderman testified that she became so distraught after not
being able to find her EBT card when going to pay for groceries at Walmart that
she broke down and started bawling in front of others while in the store.
AR 95.
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Q: And who’s that?
A: What’s her name, I’m sorry. Oh, I didn’t even write it down. It’s
Dr. Adam something. I’m not sure.
Q: Is it a hyphenated name?
A: Yep.
Q: If it turns out to be Chester-Adams –
A: Yep.
Q: Does that sound familiar to you?
A: Yep.
Q: How many times have you seen [Dr. Chester-Adams]?
A: I actually have just started seeing her so I’ve seen her three
times.
...
Q: And has [Dr. Chester-Adams] put any limitations on your
activities form a mental health standpoint, about working or not
working or particular work environment?
A: Just to stay away from whatever was causing me stress and
anxiety. . . .
AR 101-02.
Haginson, the vocational expert, testified about Sunderman’s potential
employment options. AR 107-09. Specifically, the ALJ questioned Haginson
using a hypothetical created from the state agency’s assessment of
Sunderman. See AR 140-41 (Exhibit 3A). Under the ALJ’s hypothetical,
Haginson confirmed that someone with those abilities could perform all of the
past work performed by Sunderman. AR 108.

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ALJ DECISION
Employing the five-step analysis associated with an application for social
security benefits, the ALJ denied Sunderman’s claim on July 25, 2014. AR 35.
In Step One, the ALJ found that Sunderman had not engaged in substantial
gainful activity since November 5, 2012, the amended onset date. AR 41. In
Step Two, the ALJ found that Sunderman suffers from the following severe
impairments: fibromyalgia and obesity. Id. The ALJ also found at Step Two that
Sunderman had two medically determinable mental impairments: depression
and anxiety. AR 42. The ALJ went on to conclude, however, that because these
impairments did not cause more than “minimal limitation in [Sunderman’s]
ability to perform basic mental work activities,” that the medically determinable
impairments of anxiety and depression were “nonsevere.” Id.
In Step Three, the ALJ found that Sunderman does not have any
impairment, or combination of impairments, that meets or equals the severity
required for a finding of disability under 20 C.F.R. Part 404, Subpart P,
Appendix 1. AR 45. Between Steps Three and Four the ALJ calculated
Sunderman’s residual functioning capacity (RFC) and concluded that
Sunderman had the RFC:
to perform a range of light work as defined in [20 C.F.R. §§]
404.1567(b) and 416.967(b). [Sunderman] is able to occasionally
lift and/or carry 20 pounds and frequently 10 pounds.
[Sunderman] can stand, walk or sit (with normal breaks) about six
hours each in an 8-hour day. [Sunderman’s] push/pull abilities
are unlimited with the resistance as stated in her lifting/carrying
abilities. From a postural standpoint, [Sunderman] can
occasionally climb, perform unlimited balancing and frequently
stoop, kneel, crouch or crawl. [Sunderman] has no manipulative,
visual, communicative or environmental limitations.
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AR 46. Because of the ALJ’s finding regarding Sunderman’s RFC, the ALJ
found in Step Four that Sunderman was capable of performing all of her past
relevant work. AR 49. Thus, the ALJ concluded that Sunderman was not
disabled. AR 50.
STANDARD OF REVIEW
The court must uphold the ALJ’s decision if it is supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g) (“The findings
of the Commissioner as to any fact, if supported by substantial evidence, shall
be conclusive . . . .”); Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011).
“ ‘Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the conclusion.’ ” Teague,
638 F.3d at 614 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)).
When reviewing the record, “the court ‘must consider both evidence that
supports and evidence that detracts from the Commissioner’s decision.’ ” PateFires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Nicola v. Astrue, 480
F.3d 885, 886 (8th Cir. 2007)). If the Commissioner’s decision is supported by
substantial evidence in the record as a whole, the court may not reverse it
merely because substantial evidence also exists in the record that would
support a contrary position or because the court would have determined the
case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002)
(citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
The court also reviews the Commissioner’s decision to determine if an
error of law has been committed, which may be a procedural error, the use of
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an erroneous legal standard, or an incorrect application of the law. Collins v.
Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are
reviewed de novo with deference accorded to the Commissioner’s construction
of the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th
Cir. 2008)).
THE FIVE STEP PROCEDURE FOR DISABILITY DETERMINATIONS
Disability is defined as 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); 42 U.S.C. § 1382c(3)(A). “An individual shall be determined to be
under a disability only if [her] physical or mental impairment or impairments
are of such severity that [she] is not only unable to do [her] previous work but
cannot, considering [her] age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy[.]”
42 U.S.C. § 423(d)(2)(A). An ALJ must apply a five-step procedure when
determining if an applicant is disabled. Smith v. Shalala, 987 F.2d. 1371, 1373
(8th Cir. 1993). The steps are as follows:
Step One: Determine whether the applicant is presently engaged in
substantial gainful activity. 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b).
Step Two: Determine whether the applicant has an impairment or a
combination of impairments that are severe. 20 C.F.R. § 404.1520(c); 20 C.F.R.
§ 416.920(c).
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Step Three: Determine whether any of the severe impairments identified
in Step Two match the listing in Appendix 1. 20 C.F.R. § 404.1520(d); 20
C.F.R. § 416.920(d).
Step Four: Considering the applicant’s RFC, determine whether the
applicant can perform any past relevant work. 20 C.F.R. § 404.1520(e); 20
C.F.R. § 416.920(e).
Step Five: Determine whether any substantial gainful activity exists in
the national economy that the applicant can perform. 20 C.F.R. § 404.1520(f);
20 C.F.R. § 416.920(f).
DISCUSSION
Sunderman urges the court to reverse the ALJ’s decisions for the
following reasons: (1) the ALJ failed to properly identify Sunderman’s severe
mental impairments; (2) the ALJ failed to properly evaluate Sunderman’s
fibromyalgia; (3) the ALJ’s RFC determination is not supported by substantial
evidence; and (4) the ALJ failed to properly evaluate third party statements
from Sunderman’s mother. Docket 11 at 1. Additionally, Sunderman requests
that the court direct the Social Security Administration to award benefits. Id. at
35.
I.

Step Two
In Step Two, the Commissioner must determine whether the claimant

has a severe impairment, that is, “one that significantly limits the claimant's
physical or mental ability to perform basic work activities.” Baker v. Apfel, 159
F.3d 1140, 1143 (8th Cir. 1998); see also 20 C.F.R. § 404.1520(c); 20 C.F.R.
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§ 416.920(c). An impairment is not severe “if it amounts only to a slight
abnormality that would not significantly limit the claimant's physical or mental
ability to do basic work activities.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir.
2007). “It is the claimant's burden to establish that [her] impairment or
combination of impairments are severe.” Id.
At Step Two, the ALJ determined that Sunderman’s only severe
impairments were fibromyalgia and obesity. AR 41. Although the ALJ found
that depression and anxiety were medically determinable impairments, AR 42,
the ALJ concluded that depression and anxiety were nonsevere impairments
because the impairments only caused “minimal limitation in [Sunderman’s]
ability to perform basic mental work activities.” Id. Sunderman alleges that this
conclusion by the ALJ was incorrect and that the ALJ would have reached the
correct conclusion had the ALJ “fully and fairly develop[ed] the record
regarding [Sunderman’s] mental impairments before determining that [her
medically determinable impairments of depression and anxiety] were not
severe.” Docket 11 at 21.
A. An ALJ’s duty to fully and fairly develop the record.
In the context of non-adversarial social security hearings, an “ ‘ALJ bears
a responsibility to develop the record fairly and fully, and independent of the
claimant’s burden to press [her] case.’ ” Brown v. Colvin, 825 F.3d 936, 939
(8th Cir. 2016) (quoting Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004)).
But such a responsibility only stretches so far. Id. (citing Stormo v. Barnhart,
377 F.3d 801, 806 (8th Cir. 2004)). An ALJ’s burden to seek additional
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evidence normally exists only where “a crucial issue is undeveloped.” Stormo,
377 F.3d at 806. Thus, an “ ‘ALJ is not required to function as the claimant’s
substitute counsel, but only to develop a reasonably complete record.’ ”
Whitman v. Colvin, 762 F.3d 701, 707 (8th Cir. 2014) (quoting Clark v. Shalala,
28 F.3d 828, 830-31 (8th Cir. 1994)). In developing a reasonably complete
record, the Eighth Circuit has observed that “reversal due to failure to develop
the record is only warranted where such failure is unfair or prejudicial.”
Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995).
B. Did the ALJ fully develop the record here?
Sunderman argues that the ALJ failed to fully develop her administrative
record. Specifically she cites to 20 C.F.R. § 404.1512(d), which requires the
Commissioner to develop the claimant’s “complete medical history for at least
the 12 months preceding the month [the claimant files their application]. . . .”
See also 20 C.F.R § 416.912(d) (same). Sunderman alleges that the ALJ and the
Commissioner failed to develop the record by failing to obtain Sunderman’s
treatment records from her sessions with Dr. Chester-Adams. Docket 11 at 21.
According to Sunderman, because she testified at her administrative hearing
about being treated by Dr. Chester-Adams and other medical records in the file
reference Dr. Chester-Adams, the Commissioner and the ALJ were required to
attempt to locate those treatment records. See id.
The Commissioner responded to this argument by citing Whitman, 762
F.3d at 707, and stating Sunderman failed to meet her obligation to develop the
record. Docket 13 at 22 n.3. The Commissioner also cites to 20 C.F.R.
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§ 404.1512(a), which places the ultimate burden to prove that a claimant is
disabled on the claimant. See also 20 C.F.R. § 416.912(a). The Commissioner
further argues that Sunderman’s argument should be given little weight here
because both Sunderman and Sunderman’s counsel failed to provide the Dr.
Chester-Adams’ treatment records to the ALJ. Docket 13 at 22 n.3 (citing AR
78 and AR 109-110 (holding administrative record open to afford counsel
additional time to procure remaining records from providers who had not yet
responded to document request)); see also AR 528 (April 30, 2014, letter from
Sunderman’s counsel stating that the administrative record can be closed).
“[R]eversal due to failure to develop the record is . . . warranted where
such failure is unfair or prejudicial.” Shannon, 54 F.3d at 488. In Snead, 360
F.3d at 839, the Eighth Circuit reversed and remanded a case for fuller
development of the record where additional treatment evidence from the
claimant’s treating physician might have altered the ALJ’s opinion regarding
the claimant’s alleged disability. Id. (citing Shannon, 54 F.3d at 488) (“Because
this evidence might have altered the outcome of the disability determination,
the ALJ's failure to elicit it prejudiced Snead in his pursuit of benefits.”).
As in Snead, 360 F.3d at 839, reversal is appropriate here for fuller
development of Sunderman’s treatment records. A review of the treatment
records of Dr. Chester-Adams might alter the ALJ’s opinion that Sunderman’s
medically determinable mental impairments of depression and anxiety were
nonsevere because the record document that Sunderman received treatment
for depression and anxiety. See AR 22-29. The ALJ had questioned Sunderman
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about her mental treatment at the “Avera free clinic” during the administrative
hearing and specifically referenced Sunderman’s doctor (Dr. Chester-Adams) by
name. 5 AR 101-02.
The court finds that because Dr. Chester-Adams’ treatment records of
Sunderman had the potential to alter the ALJ’s disability determination, the
ALJ’s failure to obtain these records prejudiced Sunderman and a reversal for
consideration of these records is proper. See Snead, 360 F.3d at 839. On
remand the ALJ should consider Sunderman’s treatment records that were
made part of the administrative record by the Appeals Council and any other
records produced by Sunderman and her counsel or obtained by the ALJ
regarding Sunderman’s mental health treatment. 6
II.

Step Three
In Step Three, the ALJ must consider whether the claimant’s severe

impairment or impairments are such that a finding of disability is appropriate.
See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. § 416.920(a)(4)(iii). If the severe
impairments, when reviewed individually or in combination, satisfy the
requirements of a listing in Appendix 1 of Subpart P in 20 C.F.R. Part 404
(Appendix 1), then “the claimant is conclusively presumed to be disabled.”
Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
Some of Dr. Chester-Adams’ treatment records of Sunderman, although not
presented to the ALJ, were considered by the Appeals Council and thus became
part of the administrative record for this case. AR 6. As such, a remand is
warranted so the ALJ can consider whether these treatment records impact the
determination at Step Two.
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As the court’s opinion in Section II, infra, makes clear, additional independent
grounds exist for reversing the Commissioner’s decision.
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At Step Three, the ALJ found that Sunderman’s severe impairments of
fibromyalgia and obesity did not individually or in combination satisfy the
requirements of a listing in Appendix 1. AR 45. In reaching this decision, the
ALJ “specifically considered listing 14.06.” 7 Id.
Sunderman argues that the ALJ failed to review her impairments as
required by SSR 12-2p, which pertains to fibromyalgia. Docket 11 at 25. This
failure, according to Sunderman, leaves the court unable to properly review the
ALJ’s decision at Step Three. Id. at 28. The Commissioner does not deny that
the ALJ failed to consider SSR 12-2p and listing 14.09 in rendering his
decision. In fact, the Commissioner argues that the error is harmless. Docket
13 at 27 (citing Henderson v. Sullivan, 930 F.3d 19, 21 (8th Cir. 1991)). 8
Further, the Commissioner argues that this court should affirm the ALJ’s
decision because Sunderman has failed to show that her conditions meet or
equal the criteria of any listing contained in Appendix 1. Id.
The purpose of SSR 12-2p is to provide guidance on how to “develop
evidence to establish that a person has a medically determinable impairment of
fibromyalgia. . . .” SSR 12-2p, 2012 WL 3104869 at *5 (July 25, 2012).
Regarding the analysis needed at Step Three, SSR 12-2p states:

Listing 14.06 addresses undifferentiated and mixed connective tissue disease.
See 20 C.F.R. Part 404, Subpart P, Appendix 1, listing 14.06.
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The court finds the Commissioner's argument relating to harmless error
unpersuasive. In Henderson, 930 F.3d at 21, the Eighth Circuit found that an
ALJ’s failure to mention a binding regulation is only harmless where the ALJ
“substantially complied with the correct legal standard.” Because the ALJ
applied an incorrect standard here, the ALJ’s error cannot be harmless.
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At step 3, we consider whether the person’s impairment(s) meets or
medically equals the criteria of any of the listings in the Listing of
Impairments in appendix 1, subpart P of 20 CFR part 404
(appendix 1). [Fibromyalgia] cannot meet a listing in appendix 1
because [it] is not a listed impairment. At step 3, therefore, we
determine whether the [fibromyalgia] medically equals a listing (for
example, listing 14.09D in the listing for inflammatory arthritis), or
whether it medically equals a listing in combination with at least
one other medically determinable impairment.
Id.
It is well settled in the Eighth Circuit that agencies are required to follow
their own binding regulations and that the failure to follow an agency’s own
regulations is “a reversible abuse of discretion.” Carter v. Sullivan, 909 F.2d
1201, 1202 (8th Cir. 1990) (per curiam) (holding failure of Secretary to follow
binding SSR 83-10 was an abuse of discretion); see also 20 C.F.R.
§ 402.35(b)(1) (stating that Social Security Rulings are “binding on all
components of the Social Security Administration”). Thus, while the
Commissioner asserts correctly that Sunderman bears the burden of proving
that her severe impairments are the medical equivalent of a listing in Appendix
1, the ALJ also carries the responsibility of reviewing Sunderman’s severe
impairments for medical equivalence under the appropriate listing and agency
regulations.
The entirety of the ALJ’s analysis at Step Three is one paragraph. See
AR 45. And while in this paragraph the ALJ states that he has “specifically
considered listing 14.06,” AR 45, the ALJ’s conclusory analysis makes it
“practically impossible for a reviewing court to analyze” whether the ALJ's
reasoning regarding medical equivalence is sound. See Miller v. Colvin, 114 F.
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Supp. 3d. 741, 775 (D.S.D. 2015). In Jockish v. Colvin, No. 15-5011-KES, 2016
WL 1181680 (D.S.D. March 25, 2016), this court held that an ALJ’s failure to
follow SSR 12-2p and listing 14.09D constituted a reversible error. Jockish,
2016 WL 1181680, at *7. Because of the reversible error, this court remanded
the case back to the ALJ for consideration of the medical evidence in light of
SSR 12-2p and listing 14.09D. The same result is appropriate here.
Because the court remands this case for further review, it declines to
address the remaining issues raised by Sunderman. The record contains
medical and psychiatric records, as well as other evidence, that were submitted
to the Social Security Administration after the ALJ's decision was issued. See
AR 6. In light of this new evidence and this court's instructions relating to
Steps Two and Three, it is inappropriate to render judgment on the ALJ's
analysis pertaining to Sunderman’s RFC and whether the ALJ evaluated third
party statements from Sunderman’s mother. On remand, the court instructs
the ALJ to review the medical evidence in its entirety and to make new findings
throughout the disability analysis. In making this decision, the court denies
Sunderman’s request that the court award benefits without remanding the
case for further review.
CONCLUSION AND ORDER
The court finds that the ALJ erred by failing to seek to obtain
Sunderman’s treatment records from Dr. Chester-Adams after questioning
Sunderman on that treatment relationship. The court also finds that the ALJ
failed to properly apply SSR 12-2p to determine whether Sunderman’s
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fibromyalgia constitutes the medical equivalent of a listing in Appendix 1,
Subpart P of 20 C.F.R. Part 404. Thus,
IT IS ORDERED that the decision of the Commissioner is REVERSED
and REMANDED for further review consistent with this opinion.
DATED February 3, 2017.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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