Escareno v. Astrue

Filing 18

ORDER. ORDERED that the decision of the Commissioner that plaintiff was not disabled is REVERSED and REMANDED for further proceedings consistent with this opinion by Judge Philip A. Brimmer on 04/28/14. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-03141-PAB
DENISE M. ESCARENO,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER

This matter is before the Court on plaintiff Denise M. Escareno’s opening brief
[Docket No. 14], filed on June 6, 2013. Plaintiff seeks review of the final decision of
defendant Carolyn W. Colvin (the “Commissioner”) denying plaintiff’s claim for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act (the “Act”), 42 U.S.C. §§ 401-33 and 1381-83c.1 The Court has
jurisdiction to review the Commissioner’s final decision under 42 U.S.C. § 405(g).
I. BACKGROUND
On November 18, 2009, plaintiff applied for disability benefits under Title II of the
Act and, on May 1, 2010, she applied for benefits under Title XVI of the Act. R. at 27.
Plaintiff alleged that she had been disabled since November 10, 2009. Id. After an
initial administrative denial of her claim, plaintiff appeared at a hearing before an

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The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.

Administrative Law Judge (“ALJ”) on June 15, 2011. Id. On August 4, 2011, the ALJ
issued a decision denying plaintiff’s claim. Id. at 37.
The ALJ found that plaintiff had the severe impairments of fibromyalgia and
depression. R. at 29. The ALJ found that these impairments, alone or in combination,
did not meet one of the regulations’ listed impairments, id. at 30, and ruled that plaintiff
had the residual functional capacity (“RFC”) to:
perform light work as defined in 20 C.F.R. §§ 494.1567(b) and 416.967(b),
while sitting and standing/walking for up to six hours each in a regular eight
hour work day; lifting and carrying up to ten pounds frequently, and up to
twenty pounds occasionally; pushing and pulling with her upper and lower
extremities within the aforementioned weight restrictions; no more than
frequently engaging in handling activities with her bilateral upper extremities;
avoiding extremes of cold; only occasionally climbing, stooping, crouching,
kneeling, or crawling; and while performing [] unskilled work, with a specific
vocational preparation (SVP) rating level of one or two.
Id. at 30-31. Based upon this RFC and the testimony of a vocational expert (“VE”), the
ALJ concluded that “the claimant is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy.” R. at 36.
The Appeals Council denied plaintiff’s request for review of this denial. R. at 1.
Consequently, the ALJ’s decision is the final decision of the Commissioner.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse

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an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a
ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
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exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and (5)
whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisfied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). While the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).

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C. The ALJ’s Decision
Plaintiff argues that the ALJ erred in (1) placing undue emphasis on the absence
of objective medical evidence that plaintiff’s pain is disabling; (2) unreasonably
discounting plaintiff’s subjective complaints of pain; and (3) giving little or no weight to
the opinions of plaintiff’s treating physician Gregory Berens. Docket No. 14.
The relevant facts are as follows. Dr. Berens began treating plaintiff in
December 2005. R. at 357. In May 2008, plaintiff had a neurology consultation with Dr.
Ashakiran Sunku, who found that “[electromyogram (“EMG”)]/nerve conduction studies2
of the bilateral upper extremities . . . are within the limits of normal.” R. at 261. He also
found that magnetic resonance imaging (“MRI”) of plaintiff’s cervical spine showed
“minimal changes of degenerative disk disease.” Id. In September 2009, plaintiff
complained of a severe headache accompanied by visual disturbances and facial
numbness. R. at 275. A computed tomography (“CT”) scan3 of her head revealed “no
acute intracranial findings.” Id.
In December 2009, Dr. Berens found that an x-ray of plaintiff’s hand revealed “no
bone, joint or soft tissue abnormality.” R. at 297. The same month, plaintiff had a pain
management consultation with Dr. Divakara Kedlaya, a pain specialist, to whom plaintiff
complained of “pain all over the body.” Id. at 277.

2

An electromyogram is a “graphic representation of the electric currents
associated with muscular action.” Stedman’s Medical Dictionary 126730 (27th ed.
2000).
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Computed tomography involves “imaging anatomic information from a crosssectional plane of the body, each image generated by a computer synthesis of x-ray
transmission data obtained in many different directions in a given plane.” Stedman’s
Medical Dictionary 411890 (27th ed. 2000).
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In January 2010, Dr. Sunku repeated the nerve conduction study and found that
the results were normal. R. at 319.
Also in January 2010, plaintiff met with Dr. Kedlaya for complaints of chronic “all
over pain,” as well as back pain, joint pain, join swelling, headache, and numbness. Id.
at 299, 301. Plaintiff told Dr. Kedlaya that the acetaminophen and oxycodone she had
been prescribed were “helping with [the] pain” and that she was “[s]leeping better,” but
was still “having pain in both hands, pain down left lower limb.” Id. at 300. Dr. Kedlaya
found that plaintiff had “tenderness in [lumbosacral] region, bilateral wrist, hand
tenderness” and neurological symptoms of “tremor, left lower limb numbness.” Id. at
301. On February 2, 2010, Dr. Kedlaya found that plaintiff had “bilateral hands
tenderness, swelling, Cervical and [lumbosacral] [] tenderness.” R. at 346. On March
2, 2010, Dr. Kedlaya found that plaintiff had “[m]ultiple tender points throughout spine
and extremities, Bilateral hands/digits joint swollen, tender.” Id. at 342. On March 30,
2010, Dr. Kedlaya found that plaintiff had “[m]ultiple areas of tenderness in C-spine,
shoulder, both hands, legs, joints, [lumbosacral] region.” Id. at 339. In April 2010,
plaintiff told Dr. Kedlaya that “her pain [was in] fair control with meds.” R. at 335. Dr.
Kedlaya found plaintiff had “multiple tender regions, tenderness in both hands, knees.”
Id. In April 2010, plaintiff told Dr. Berens that her pain was “not worsening, but [was]
not much better” and that she was not sleeping well. R. at 349. In May 2010, plaintiff
told Dr. Kedlaya that “her pain [was] doing better.” Id. at 332. In July 2010, plaintiff told
Dr. Kedlaya that she was not smoking. R. at 377.
On July 19, 2010, Dr. Berens completed a Fibromyalgia Medical Source

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Statement for plaintiff in which he opined that she had the following symptoms: multiple
tender points, nonrestorative sleep, chronic fatigue, morning stiffness, muscle
weakness, subjective swelling, vestibular dysfunction, temporomandibular joint
dysfunction, numbness and tingling, and depression. R. at 357. He opined that
“occasional [] depressive symptoms increase her pain.” Id. He opined that she had
pain in her lumbosacral spine, cervical spine, thoracic spine, chest, left shoulder, arms,
hands, fingers, hips, legs, knees, ankles, and feet; that she experienced burning, deep
aching pain, tingling, numbness, and “electrical shock type pains”; that her pain was
precipitated by changing weather, fatigue, movement, overuse, cold, stress, and
remaining in one position; that a side effect of her medication was occasional mild
grogginess; that she could walk half a city block without stopping, sit for twenty minutes
at a time, stand for twenty minutes at a time, and sit or stand/walk for a total of four
hours each in an eight-hour day; that she would have to stand up to walk for five
minutes in every thirty minutes of sitting; that she would have to take unscheduled
breaks every two to three hours for five to ten minutes during which she would need to
lie down or sit quietly; that she could lift up to ten pounds, rarely; rarely twist. climb
stairs, and stoop, but never crouch, squat, or climb ladders; occasionally turn her head
or hold her head in a static position; grasp, turn, twist, finely manipulate objects, or
reach in front of her body for twenty percent of an eight-hour workday; and reach
overhead for ten percent of an eight-hour workday. Id. at 357-60. He opined that she
would be “off task” for twenty-five percent or more of an eight-hour workday and would
need to miss work four days per month, but was capable of tolerating low stress. Id.

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On September 9, 2010, Dr. Berens opined that plaintiff was “currently totally &
permanently disabled.” R. at 362.
On March 10, 2011, Dr. Berens completed a Revised Medical Assessment of
Ability to Do Work-Related Activities (Physical) for plaintiff, in which he opined that
plaintiff could lift or carry up to twenty pounds on an occasional basis; could reach,
handle, finger, feel, push, or pull with both hands for one-third to two-thirds of an eighthour workday; and could occasionally climb stairs and ramps, but never stoop. R. at
364-68. Dr. Berens’ March 2011 opinion does not otherwise meaningfully differ from
his July 2010 opinion, although the two forms phrase similar questions in a different
manner. Compare R. at 357-60 with R. at 364-68.
At the hearing before the ALJ, plaintiff testified that her sixteen-year-old daughter
receives Social Security disability benefits because she had a tracheoesophageal
fistula repair performed when she was born. R. at 50-51. With respect to this daughter,
plaintiff testified that “physically she can, you know, she’s capable of doing–like she
does dishes, and her homework and stuff like that. Her problems are [] internal. . . .
And it’s just the medications [] that she goes through that cause her to get sick some
days.” Id. at 54. Plaintiff testified that when her son brings over her sixteen-month-old
granddaughter, plaintiff tries to hold her, but “can’t hold her very long because [her] arm
just gives out” and so her son will “sit down on the floor with the girls, and they’ll like fix
a puzzle, and, and I’ll just kind of watch them, and laugh, and, you know, talk to them.”
Id. at 51. She testified that she watches some television, no longer reads very much,
and drives “sometimes . . . just around the corner.” Id. at 53. She testified that she
smokes “every once in a while, but not very much anymore because [she] can’t really
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stand for long.” Id. at 55. She testified that she cannot do laundry, but she can take
quick trips to buy groceries as long as she does not have to carry too much, can do “a
few dishes,” and can talk her older daughter through the process of cooking meals. Id.
at 60. The ALJ asked the VE whether there were jobs available for an individual with
plaintiff’s RFC who was “unable to sustain concentration, persistence, and pace
necessary to consistently fulfill work for eight hours a day, five days a week” and the VE
stated that there were not. Id. at 70.
The ALJ began her analysis of plaintiff’s credibility as follows:
[T]reating and examining sources have not documented the level of
corresponding physical dysfunction that one would expect, given her
allegation of such constant and severe pain to the extent that it prevents her
from sustaining any level of work activity. For example, EMG/nerve
conduction study results of her upper extremities from May 2008 returned
normal findings, as did an EMG study of her right upper extremity in 2010.
Results of an MRI of her cervical spine in 2008 indicated only minimal
degenerative changes, a CT scan of her head in 2009 indicated no acute
findings to explain her headache complaints, results of a 2009 x-ray of her
hands indicated no abnormalities, and a 2010 MRI of her lumbar spine
returned no evidence of disc herniation, spinal stenosis, or nerve root
impingement. Results of a later MRI of her right hand done in 2010 were
interpreted as unremarkable, with no evidence to support a diagnosis of
rheumatoid arthritis.
Exam findings are also less than supportive of a finding of significant
physical dysfunction, commensurate with her complaints of pain. The
physician who has provided pain management for the claimant, Divakara
Kedlaya, MD, noted during an early exam in January 2010 that the claimant
exhibited tenderness to palpation of the lumbar spine, tenderness in the
bilateral hands and wrists, a tremor, and lower left extremity numbness . . .
. During subsequent exams over the next two months, the claimant was
again noted to exhibit swelling and tenderness in her hands, and tenderness
in her spine, although neurological and psychological exam findings were
again deemed normal. During this same time frame, the claimant was being
treated by a rheumatologist, Patrick Timms, MD, for a possible diagnosis of
rheumatoid arthritis. However, in March and April 2010 this source noted
that the claimant’s rheumatoid factor results were only slightly elevated, she
exhibited only minimal swelling in her wrists and hands, she exhibited no
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signs of synovitis, and MRI results of her hand indicated no evidence of
rheumatoid arthritis. He concluded that she was primarily experiencing
symptoms of fibromyalgia, with no evidence of rheumatoid disease. . . .
R. at 32.
The ALJ concluded that plaintiff’s subjective complaints of pain were not entirely
credible based on the “medical evidence indicating improvement in her pain, lack of
evidence of significant physical dysfunction, her non-compliance with recommended
treatment, and the other inconsistencies detailed” in the ALJ’s decision. R. at 34. The
ALJ cited the following as evidence of inconsistency between plaintiff’s subjective
complaints of pain and the other record evidence: (1) medical sources documented
plaintiff’s complaints of pain, but not resulting functional limitations; (2) the examination
findings were “less than supportive of a finding of significant physical dysfunction”;
(3) plaintiff told Dr. Kedlaya in April 2010 that her pain was “under fair control” and that
she was sleeping better, but told Dr. Berens that her pain was not much better and she
was not sleeping well; (4) plaintiff told Dr. Kedlaya in July 2010 that she had stopped
smoking, but testified at the hearing that she still smokes “every once in a while”;
(5) plaintiff testified to performing daily activities in excess of her alleged activities at the
time she filed her claim, indicating a “significant improvement in her functional abilities”;
and (6) plaintiff is not regularly exercising or abstaining from cigarettes, despite Dr.
Kedlaya’s recommendation that she do so. R. at 32-34.
With respect to Dr. Berens’ opinions, the ALJ gave no weight to Dr. Berens’ July
2010 opinion, based on the ALJ’s finding that the opinion:
is not supported by [Dr. Berens’] own treatment notes to that time, which
reflect documentation primarily of the claimant’s pain complaints, but not of
any observed or tested physical dysfunction or specific physical limitation
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resulting from this alleged pain. Furthermore, the claimant began reporting
improvement in her pain levels to Dr. Kedlaya beginning in June 2010, and
his treatment notes also fail to document the level of associated physical
dysfunction one would expect given the claimant’s reports of her pain.
R. at 35. The ALJ gave “little weight” to “much of” Dr. Berens’ March 2011 opinion,
based on the ALJ’s finding that:
the evidence of record simply does not support that the claimant is so limited,
especially in her ability to engage in postural activities, as records from
treating sources, as previously discussed, do not reflect a level of physical
dysfunction which would reasonably result in such extensive limitations.
Sources have typically noted only tenderness to palpation, with little or no
mention of limitation in motion, difficulty with ambulation, or other restricting
physical dysfunction.
R. at 35.
Plaintiff argues that the ALJ erroneously discounted plaintiff’s complaints of pain
on the basis that “treating and examining sources have not documented the level of
corresponding physical dysfunction that one would expect.” Docket No. 14 at 5 (citing
R. at 32).
“Credibility determinations are peculiarly the province of the finder of fact” and
the Tenth Circuit will uphold such determinations, so long as they are supported by
substantial evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995). Credibility
determinations may not be conclusory, but must be “closely and affirmatively linked” to
evidence in the record. Id. In assessing a claimant’s credibility, an ALJ must consider
the following factors, in addition to the objective medical evidence:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain
or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
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4. The type, dosage, effectiveness, and side effects of any medication
the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back, standing
for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996); see also 20 C.F.R. § 404.1529(c)(4)
(“We will consider whether there are any inconsistencies in the evidence and the extent
to which there are any conflicts between your statements and the rest of the
evidence . . . .”). “Because a credibility assessment requires consideration of all the
factors ‘in combination,’ when several of the factors relied upon by the ALJ are found to
be unsupported or contradicted by the record, we are precluded from weighing the
remaining factors to determine whether they, in themselves, are sufficient to support”
the credibility determination. Bakalarski v. Apfel, 1997 WL 748653, at *3 (10th Cir. Dec.
3, 1997) (quoting Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988)). In addition,
the Court may not “create post-hoc rationalizations to explain the Commissioner’s
treatment of evidence when that treatment is not apparent from the Commissioner’s
decision itself.” Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005).
Fibromyalgia is a “syndrome of chronic pain of musculoskeletal origin but
uncertain cause.” Stedman’s Medical Dictionary 148730 (27th ed. 2000). Fibromyalgia
can be the basis for a finding of disability. SSR 12-2P, 2012 WL 3104869, at *1 (July
25, 2012). However, because it is “poorly-understood within much of the medical
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community” and “diagnosed entirely on the basis of patients’ reports and other
symptoms,” Brown v. Barnhart, 182 F. App’x 771, 773 n.1 (10th Cir. 2006) (citation
omitted), it “presents a conundrum for insurers and courts evaluating disability claims”.
Welch v. Unum Life Ins. Co. of Am., 382 F.3d 1078, 1087 (10th Cir. 2004) (citation
omitted) (citation omitted); see also Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)
(“Its cause or causes are unknown, there is no cure, and, of greatest importance to
disability law, its symptoms are entirely subjective. There are no laboratory tests for the
presence or severity of fibromyalgia. The principal symptoms are ‘pain all over,’ fatigue,
disturbed sleep, stiffness, and–the only symptom that discriminates between it and
other diseases of a rheumatic character–multiple tender spots”).
The American College of Rheumatology has set forth the following Criteria for
the Classification of Fibromyalgia: a history of pain in all quadrants of the body that
persists for at least three months and at least eleven out of eighteen positive tender
points on physical examination. SSR 12-2P, 2012 WL 3104869, at *2-3 (July 25,
2012). Diagnosis includes ruling out “other disorders that could cause the symptoms or
signs” through imaging and other laboratory tests. Id. at *3. While the “disease itself
can be diagnosed more or less objectively,” the “amount of pain and fatigue that a
particular case of it produces cannot be.” Hawkins v. First Union Corporation LongTerm Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003). Accordingly, the “lack of
objective test findings . . . is not determinative of the severity of [a claimant’s]
fibromyalgia.” Gilbert v. Astrue, 231 F. App’x 778, 784 (10th Cir. 2007); see also
Richardson v. Astrue, 858 F. Supp. 2d 1162, 1175 (D. Colo. 2012) (finding that the ALJ

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“erred by discounting all of Plaintiff’s symptoms from fibromyalgia based on the lack of
objective tests”).
Plaintiff argues that “the ALJ placed the greatest weight by far on whether testing
and examination sufficiently proved, to the ALJ’s satisfaction, Plaintiff’s complaints of
debilitating pain.” Docket No. 14 at 4. Although the ALJ’s decision does not disclose
the respective weight accorded to the different factors she considered in finding
plaintiff’s complaints of pain not fully credible, it is clear that the absence of examination
findings supporting the severity of plaintiff’s complaints–as well as the normal results of
plaintiff’s MRIs, nerve conduction studies, CT scan, and x-ray–contributed to the ALJ’s
conclusion. See R. at 32. However, there are no laboratory tests that can assess the
severity of fibromyalgia, see Sarchet, 78 F.3d at 306; see also Hawkins, 326 F.3d at
919; Gilbert, 231 F. App’x at 784, and the ALJ cites nothing to the contrary. Thus, the
cited examination findings are not relevant to the severity of plaintiff’s fibromyalgia. See
Gilbert, 231 F. App’x at 784; see also Sarchet, 78 F.3d at 307 (“Since swelling of the
joints is not a symptom of fibromyalgia, its absence is no more indicative that the
patient’s fibromyalgia is not disabling than the absence of headache is an indication
that a patient's prostate cancer is not advanced.”).
Moreover, in order to diagnose fibromyalgia, physicians have to rule out other
potential causes of a patient’s pain, such as rheumatologic disorders, Lyme disease,
and cervical hyperextension- or hyperflexion-associated disorders. SSR 12-2P, 2012
WL 3104869, at *3 n.7. Plaintiff’s physicians did not opine that the negative test results
cited by the ALJ, including the conclusion that plaintiff does not suffer from rheumatoid
arthritis, undermine plaintiff’s complaints of disabling pain. See, e.g., R. at 261-62 and
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320 (noting “possible fibromyalgia” diagnosis and “question of fibromyalgia” in light of
otherwise normal test results); and R. at 324 (noting normal x-ray result and stating that
plaintiff “has been on essentially every medication we use for fibromyalgia” and
physician will leave further treatment up to plaintiff’s pain management doctor). In
addition, after stating that “[e]xam findings [were] also less than supportive of a finding
of significant physical dysfunction,” the ALJ reviewed evidence that Dr. Kedlaya found
that plaintiff exhibited a number of tender points over the course of several months. R.
at 32. The ALJ’s implication that these findings–which are consistent with a diagnosis
of fibromyalgia–detract from plaintiff’s credibility is incorrect. See id.
Although the ALJ considered other factors in addition to the lack of objective
examination findings regarding the severity of plaintiff’s pain, the Court cannot “weigh[]
the remaining factors to determine whether they, in themselves, are sufficient to
support” the ALJ’s credibility determination. Bakalarski, 1997 WL 748653, at *3. Thus,
this matter must be remanded so that the ALJ can assess plaintiff’s credibility without
considering non-relevant information. See Beauclair v. Barnhart, 453 F. Supp. 2d
1259, 1279-80 (D. Kan. 2006) (remanding case where ALJ’s credibility determination
was based, in part, on ALJ’s mistaken finding that plaintiff demonstrated only four
tender points when in fact plaintiff’s physician had found eight tender points).
The Court will not address plaintiff’s argument regarding the weight accorded to
Dr. Berens’ opinions because the ALJ’s analysis on remand may impact how these
opinions are weighed. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003)
(“We will not reach the remaining issues raised by appellant because they may be
affected by the ALJ’s treatment of this case on remand.”). The Court notes that plaintiff
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has not challenged the ALJ’s determination with respect to the impairment of
depression. See Docket No. 14 at 3-13.
III. CONCLUSION
It is
ORDERED that the decision of the Commissioner that plaintiff was not disabled
is REVERSED and REMANDED for further proceedings consistent with this opinion.

DATED April 28, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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