Earnest v. Colvin

Filing 25

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this opinion. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 6/12/17. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
TRUDY R. EARNEST,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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No. 2:16 CV 61 CDP

MEMORANDUM AND ORDER
Plaintiff Trudy R. Earnest brings this action under 42 U.S.C. § 1383(c)(3)
seeking judicial review of the Commissioner’s final decision denying her
application for supplemental security income (SSI) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381, et seq. Because the Commissioner failed to
consider the entirety of the record in determining Earnest’s residual functional
capacity (RFC), I will reverse the decision and remand for further proceedings.
Procedural History
Earnest filed her application for SSI in April 2013, claiming that she became
disabled on July 1, 2007, because of fibromyalgia, allodynia, hyperalgesia, chronic
pain, sacroiliac joint pain, sciatica pain and spasms, degenerative disc disease,

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 20, 2017.
She is therefore automatically substituted for former Acting Commissioner Carolyn W. Colvin as

arthritis, high RH factor, severe musculoskeletal pain, tingling and numbness in
feet, shooting pain down legs, and chronic pain in joints. (Tr. 185-95, 209.)
Earnest later amended her alleged onset date to March 12, 2013. (Tr. 34.)2 On
August 6, 2013, the Social Security Administration denied Earnest’s claim for
benefits. (Tr. 68-115.) Upon Earnest’s request, a hearing was held before an
administrative law judge (ALJ) on April 29, 2015, at which Earnest and a
vocational expert testified. (Tr. 31-67.) The ALJ issued a written decision on June
5, 2015, denying Earnest’s claim for benefits, finding that she could perform work
as it exists in significant numbers in the national economy. (Tr. 17-26.) On
August 2, 2016, upon review of additional evidence, the Appeals Council denied
Earnest’s request for review of the ALJ's decision. (Tr. 1-5.) The ALJ's
determination thus stands as the final decision of the Commissioner. 42 U.S.C. §
405(g).
In this action for judicial review, Earnest contends that the ALJ’s decision is
not supported by substantial evidence on the record as a whole. Specifically,
Earnest argues that the ALJ erred by discounting the opinion of her treating nurse
practitioner and failed to adequately consider her impairment of fibromyalgia when

the defendant in this action. Fed. R. Civ. P. 25(d).
2

Earnest also filed an application for disability insurance benefits under Title II of the Act (Tr.
178-84) but, upon amending the alleged onset date of disability, she pursued only her application
for SSI. (Tr. 34.)
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assessing her RFC. Earnest requests that the matter be remanded to the
Commissioner for further consideration. For the reasons that follow, I will reverse
the decision and remand for further proceedings.
Evidence Before the ALJ
A.

Testimonial Evidence
1.

Earnest’s Testimony

At the hearing on April 29, 2015, Earnest testified in response to questions
posed by the ALJ and counsel.
At the time of the hearing, Earnest was forty-four years old. She went to
school through the eleventh grade and later obtained her GED. She also trained
and was certified as a certified nurse’s assistant. Earnest lives in a house with her
husband and two sons, who are ten and eight years old. She stands five feet, seven
inches tall and weighs 200 pounds. (Tr. 36-38, 54.)
Earnest’s Work History Report shows that she worked as a line worker from
1992 to 1995. From 1996 to 1998, she worked as a caretaker. Earnest worked at
Hannibal Regional Hospital from 1998 to 1999 in phlebotomy. She worked in
customer service from 1999 to 2004. (Tr. 244.) Earnest testified that she stopped
working in 2007 after her son was born with spina bifida. She testified that the
stress brought on by that circumstance caused many mental, physical, and
emotional problems, and she could not go back to work. (Tr. 42-43.)
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Earnest testified that she has been diagnosed with fibromyalgia and that the
condition affects her entire body. She experiences stiffness, tingling and numbness
in her hands and feet, achiness in her legs and feet, and a lot of pelvic pressure.
(Tr. 45-47.) Burning and stabbing pain in her joints and sacroiliac area shoots
down her legs and into her feet. (Tr. 39-40.) Earnest testified that she elevates her
legs and performs certain exercises to try to alleviate the pain. She also alternates
applying ice packs and heat throughout the day, and she sleeps on an ice pack at
night. (Tr. 47-49.) She takes hydrocodone every four to six hours for pain and
uses a TENS unit three or four times a day. (Tr. 44, 49-50.)
Earnest testified that her fibromyalgia pain is more severe in areas where she
suffered fractures from an earlier automobile accident – her left wrist, right
shoulder, left ankle, and some ribs. She hardly uses her left hand because of
significant pain; and her neck, shoulder, and ankle constantly pop and ache.
Earnest also had cervical spine surgery in 2002 and had a plate and four screws
placed in her neck. She experiences stiffness and pain in the neck area because of
arthritis and has difficulty sleeping because of the condition. (Tr. 40-42.)
Earnest testified that she experiences migraine headaches three to four times
a week. They last over three hours and she sometimes experiences nausea and
vomiting with the headaches. For these headaches, Earnest takes pain medication
and lies down on ice packs in a dark room. She also uses her TENS unit. Earnest
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also has tension headaches two to three times a week. (Tr. 43-45.)
Earnest has also been diagnosed with depression and takes medication for
the condition. Earnest testified that an abusive childhood is the source of her
depression. (Tr. 53-54.)
In addition to hydrocodone, Earnest takes ibuprofen, Aleve, Savella, Prozac,
and lorazepam for her impairments. (Tr. 51-52.) Her medication helps the pain for
short periods, but her pain is chronic. (Tr. 58.) Earnest testified that she has many
side effects from her medication, including irritable bowel syndrome, constipation,
profuse sweating, anxiety, dry mouth, dry skin, and “brain fog.” (Tr. 53.)
As to her exertional abilities, Earnest testified that she can stand for about
fifteen minutes before she experiences pain. (Tr. 39.) Sitting in a straight-back
chair causes pain. Earnest testified that she does not sit a lot because of pain. (Tr.
48.)3 Lying flat on her back is most comfortable for her. (Tr. 51.) Earnest can lift
two or three pounds, but she tries not to lift anything because of her neck
condition. (Tr. 55.) Earnest testified that she experiences pain and gets dizzy and
lightheaded if she bends, squats, or stoops. (Tr. 57.)
As to her daily activities, Earnest testified that she goes to bed around 8:30
p.m. and wakes up every three hours because of pain. She gets up in the morning
at 6:00 a.m. Her children dress and feed themselves before school. Earnest

3

It was noted that Earnest stood up on various occasions during the hearing. (Tr. 48.)
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testified that she spends most of her day resting in bed. (Tr. 50-51.) Her husband
does a lot of the housework and takes care of the lawn. She has an adult daughter
and an aunt who help care for the children. (Tr. 38-39.) Earnest can drive but does
so only when she has to and then only for short distances. For longer distances,
she makes arrangements with a transportation service. She shops with her
husband. Earnest has difficulty with some personal care, such as shaving her legs
and brushing her hair. She bathes three or four times a week, and her husband
sometimes helps her. (Tr. 55-57.)
2.

Vocational Expert Testimony

Ira Watts, a vocational expert, testified at the hearing in response to
questions posed by the ALJ and counsel.
Mr. Watts characterized Earnest’s past work as a customer service clerk as
semi-skilled and light, and as a home health aide as semi-skilled and medium. The
ALJ asked Mr. Watts to consider a person the same age, education, and past work
as Earnest and to assume the person was limited
to lifting no more than 20 pounds occasionally, 10 pounds frequently.
Sit, stand, or walk six hours in an eight-hour day. No climbing ropes,
ladders, scaffolding. Only occasional climbing ramps, stairs, balance,
stoop, kneel, crouch, crawl. Occasional reaching or working
overhead. Occasional operation of pedals or foot controls. The work
would need to be simple, repetitive and routine. Only occasional
contact with coworkers and supervisors or the general public.
(Tr. 59.) Mr. Watts testified that such a person could not perform Earnest’s past
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relevant work but could perform other work, such as light and unskilled work as an
order caller, router, and inspector. (Tr. 59-60.)
The ALJ then asked Mr. Watts to assume the same individual but that she
was limited to lifting ten pounds occasionally and less than ten pounds frequently,
and could stand or walk only two hours in an eight-hour workday. Mr. Watts
testified that such a person could perform sedentary, unskilled work as a
bonder/semi-conductor, service waiter, or dowel inspector. (Tr. 61-62.)
The ALJ then asked Mr. Watts to assume the person from the second
hypothetical to require a sit/stand option at work with a need to change position
every ten to twenty minutes. Mr. Watts testified that such a person could continue
to perform work as a bonder/semi-conductor and dowel tester as well as work as a
wait tester and final assembler. (Tr. 63-64, 66.) Mr. Watts further testified that if
this person missed work more than three or four days each month, or was off task
at least twenty percent of the time, she would not be employable. (Tr. 64-65.)
In response to counsel’s questions regarding the jobs identified, Mr. Watts
testified that work as a bonder/semi-conductor requires occasional use of the hands
and that all other work requires frequent use of the hands. (Tr. 65-66.)
B.

Medical Evidence
On August 1, 2008, Earnest visited her treating physician, Dr. David J.

Knorr, seeking treatment for poison ivy. Routine examination showed tenderness
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and some thickening of the synovium of the wrists. (Tr. 312.)
Earnest visited Dr. Imelda P. Cabalar, a rheumatologist, on October 28,
2008, with complaints of pain in her shoulders, hips, and left wrist. She reported
her pain to be at a level eight out of ten and that it was worse in the morning but
improves with activity. She also reported that swelling and morning stiffness in
the right shoulder last more than an hour. Dr. Cabalar noted that recent laboratory
tests were positive for rheumatoid factor. Physical examination showed full range
of motion about the shoulders, elbows, hips, knees, ankles, cervical spine, and right
wrist with no tenderness or effusion. Tenderness and decreased range of motion
was noted about the left wrist. No tenderness was noted about the lumbosacral
spine. There was no evidence of any inflammatory arthritis. Dr. Cabalar
suspected degenerative joint disease and prescribed Etodolac for pain. (Tr. 35355.)
Earnest visited the Hannibal Free Clinic (the “Clinic”) on January 15, 2009,
and complained of pain in her right hip and low back. The pain was worse at
night. Examination showed decreased deep tendon reflexes about the ankles.
Straight leg raising was negative. Earnest had normal range of motion about the
hips and back. Earnest was diagnosed with chronic right gluteal pain, and Flexeril
and naproxen were prescribed. (Tr. 392-93.)
Earnest returned to the Clinic on March 19 and complained of continued
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back pain. Earnest reported that steroids, Naprosyn, Mobic, and ibuprofen
prescribed by Dr. Knorr did not help her pain, but that chiropractic treatment did.
Examination showed decreased range of motion about the lumbosacral spine with
side bending. Straight leg raising was negative. No neurological defects were
noted. Earnest was diagnosed with sacroiliitis, and Voltaren was prescribed.
Earnest was also instructed to undergo osteopathic manipulation. (Tr. 389-90.) On
May 14, Earnest reported that manipulation helped for about three weeks and that
pain medication was not necessary during that time. She reported that she
experienced pain again when she started walking on the treadmill and had to restart
her pain medication. Examination showed muscle spasm at the L5-S1 level with
trigger points over the right posterior superior iliac spine. Earnest was diagnosed
with somatic dysfunction and was prescribed Flexeril and Ultram. She was
instructed to undergo additional osteopathic manipulation. (Tr. 386-87.)
Earnest visited Dr. Knorr on December 3, 2009, with complaints of deep,
aching pain in both thighs and a lot of pain in the right hip and sacroiliac joint.
Earnest also had the same deep, aching pain in her shoulders. Examination showed
tenderness in the low back at the right SI joint, radiating down the gluteus medius
and into the thigh. Dr. Knorr ordered an MRI of the right hip. Dr. Knorr
considered treatment for fibromyalgia given the nature of Earnest’s pain. (Tr.
313.) X-rays of the right shoulder, hip, SI joint, and lumbar spine showed no acute
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abnormality and were essentially normal. Mild osteoarthritis in the shoulder was
noted as well as minimal endplate osteophyte formation in the lumbar spine. (Tr.
314-17.)
Earnest returned to Dr. Knorr on November 2, 2010, with complaints of
diffuse pain in the back around the SI joints and in the paraspinal region. Tender
points were noted in the trapezius muscles, the rhomboids, the pectoral muscles,
and the inner parts of her knees. Dr. Knorr considered this to be consistent with
fibromyalgia. Dr. Knorr also noted that Earnest was stressed and feeling
overwhelmed. He diagnosed Earnest with likely fibromyalgia, obesity, and anxiety
from increased stress. Dr. Knorr gave Earnest a Toradol injection for pain and
some samples of Lyrica. He prescribed Ativan for anxiety. (Tr. 318.)
Earnest visited the Clinic on March 30, 2011, and complained of right hip
pain radiating to the groin area. She was diagnosed with SI joint pain and
sacroiliitis. (Tr. 382.)
Earnest was involved in a motor vehicle accident in April 2011and
experienced headaches, neck pain, and hip pain as a result. She was given
tramadol and Skelaxin at the hospital, which reduced her pain. She was diagnosed
with cervical strain and right hip contusion and discharged that same date. Upon
discharge, Earnest was prescribed Skelaxin, Naprosyn, and Ultram. (Tr. 325, 33032, 336.)
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On July 18, 2011, Earnest visited Dr. R. Draper at the Clinic and complained
that her joint and muscle pain had increased and was now at a level ten. Earnest
was diagnosed with fibromyalgia and was prescribed Ultram and Cipro. (Tr. 380.)
On August 29, Earnest reported that her pain was a little better but she was having
trouble sleeping. Her current medications were noted to include Aleve, Neurontin,
and Ultram. Dr. Draper diagnosed Earnest with insomnia and chronic pain. Xanax
was prescribed. (Tr. 377-78.)
Earnest returned to Dr. Draper on November 9 and reported that Neurontin
no longer helped and that she felt more depressed with Xanax. Earnest continued
in her diagnoses of chronic pain and fibromyalgia. Baclofen and lorazepam were
prescribed. (Tr. 376.) On December 7, Earnest reported to Dr. Draper that she had
restarted Neurontin but had pain in her lower back and right hip, and stabbing pain
in her right shoulder. Dr. Draper noted that she was agitated. Lyrica and Ultram
were prescribed for pain. (Tr. 374.)
Earnest returned to Dr. Draper on March 5, 2012, and requested a
prescription for Savella for pain and asked that her dosage of lorazepam be
increased. Dr. Draper diagnosed Earnest with fibromyalgia and depression and
prescribed Savella, Soma, and Ativan. (Tr. 372.) On May 7, Earnest reported that
she was stiff and experienced shoulder pain with movement. She reported that she
could not relax and that her mind races. Dr. Draper diagnosed Earnest with
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anxiety, insomnia, chronic pain, and muscle spasms and instructed her to increase
her Soma and lorazepam. (Tr. 370.) On October 4, Earnest was prescribed Lortab
and Cipro in response to continued complaints of low back pain, shoulder pain, and
joint pain. (Tr. 368.)
Earnest visited Dr. Lynn Walley on March 21, 2013, for her annual wellwoman examination. Earnest reported having generalized pain since her last Csection in 2007, with particularized pain in her hips. She reported that pain
medication provided no relief and that the hydrocodone she takes causes
constipation. Dr. Walley diagnosed Earnest with moodiness and generalized joint
and muscle pains. She prescribed fluoxetine and suppositories with
hydrocortisone. (Tr. 357-59.)
Earnest returned to the Clinic on April 4, 2013, for chronic pain
management. It was noted that she had applied for disability. Earnest was
instructed to continue with her medications, which included Soma, Lortab,
lisinopril, Prozac, and lorazepam. (Tr. 365.)
On June 10, 2013, Earnest underwent a consultative psychological
evaluation for disability determinations. Thomas J. Spencer, Psy.D., noted
Earnest’s chief complaint to be chronic pain associated with fibromyalgia. Earnest
reported the pain to be worsening and that she experiences pain to the touch.
Earnest reported that she is depressed and cannot think straight because of the pain.
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She reported that her pain medication causes bad side effects but she cannot
function without the medication. She reported her pain to be a level seven on an
average day. She is able to function independently if she takes her medication.
She is fatigued because of interrupted sleep and is very forgetful. She lacks
motivation. She reported feeling hopeless and helpless. She also reported having
crying spells, being moody, and that she was chronically worried. Earnest reported
that she and her eldest daughter were each abused when they were children and
that she had been treated for depression because of it. (Tr. 405-08.)
Mental status examination showed Earnest to be in mild to moderate
physical distress. Eye contact was intermittent and her speech was flat. Dr.
Spencer noted Earnest to shift frequently in her chair, as if in a lot of pain. Her
insight and judgment were fairly intact. She was alert and oriented times four. Her
flow of thought was intact and relevant. Her affect was dysphoric. Dr. Spencer
determined Earnest to be of low average to average intelligence. She appeared to
have no memory impairment. Dr. Spencer diagnosed Earnest with major
depressive disorder, recurrent, moderate to severe; and anxiety disorder.
Generalized anxiety disorder and pain disorder were to be ruled out. Dr. Spencer
assigned a GAF score of 50 to 55. Dr. Spencer opined that Earnest retained the
ability to understand and remember simple instructions and to engage in and
persist with simple tasks. He further opined that Earnest was moderately to
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markedly impaired in her ability to interact socially and in her ability to adapt to
change in the workplace. (Tr. 405-08.)
On June 29, Earnest underwent a consultative physical examination for
disability determinations. The overall examination was unremarkable and showed
no deficits. Earnest had full range of motion and showed no evidence of swelling,
crepitus, erythema, or joint effusion. She was able to walk on her heels and toes,
could bend over and touch her toes, and was able to squat and rise from that
position. She could raise her arms above her head. Her hands and fingers
appeared normal. She had full grip strength bilaterally. Reflexes were normal.
Dr. Dennis A. Velez reported that no documentation or findings from his clinical
examination supported Earnest’s allegations of pain, spasms, tingling, or
numbness. He noted Earnest not to have any tenderness to palpation in any joints
and no limitation on range of motion. He further noted her to have normal
strength, normal sensation, preserved reflexes, and no radicular symptoms. He
opined that Earnest had no “limitations as far as sitting, standing or walking. She
does not have any manipulative limitations. She should be able to use her hands
for writing, using small tools among other things. She does not have any lifting or
carrying limitations.” (Tr. 411-14, 417-18.)
Earnest visited the Clinic on September 5, 2013, for an adjustment to her
medications. (Tr. 477.)
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On September 12, Earnest visited the Hannibal Regional Medical Group (the
“Medical Group”) and complained of a recent onset of foot pain. Her current
medications were noted to include fluoxetine, hydrocodone, and lorazepam.
Earnest complained of general fatigue and body aches but denied any headache.
She was in mild distress. Trace edema and tenderness was noted about the right
foot at the base of her toes. Earnest was prescribed ibuprofen for pain and
swelling. (Tr. 426-29.) She returned on November 30 with complaints of
symptoms associated with urinary tract infection. She also complained of low
back pain, shoulder pain, and muscle pain associated with fibromyalgia. Earnest
was instructed to follow up with her primary care provider regarding her
fibromyalgia pain. (Tr. 430-32.)
Earnest visited the Clinic on March 6, 2014, for follow up of chronic pain in
the low back, joints, and neck, as well as for headaches with fever. Earnest was
diagnosed with fibromyalgia, hypertension, chronic pain, cervical disc disease, and
anxiety. Her prescribed medications included lorazepam, Norco, Soma, and Cipro.
(Tr. 475.)
Earnest visited the Medical Group on May 22 for a general physical
examination. She reported having chronic stabbing pain in her neck, shoulders,
hips, and sacroiliac joints. She also reported recent onset of headaches. It was
noted that she sleeps an average of four hours per night. Earnest’s current
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medications included lorazepam, fluoxetine, hydrocodone, Soma, and Savella.
Earnest was diagnosed with degenerative disc disease and fibromyalgia. (Tr. 43334.)
Earnest returned to the Clinic on September 4, 2014, for her six-month
recheck and reported that she experiences pain at a level ten when she sits, stands,
or walks. Earnest’s prescription for Norco was adjusted. (Tr. 474.)
On October 14, 2014, Earnest visited family nurse practitioner Deanna
Davenport at the Rheumatology Clinic at MU Health Care for consultation upon
referral by Dr. Jeffrey Wells. Earnest reported her relevant medical history,
including that she had a positive rheumatoid factor years ago but was never treated
for rheumatoid arthritis. Earnest reported that she experienced widespread
musculoskeletal pain on a daily basis in her muscles and in her joints. She
reported the pain to worsen with physical activity and with weather changes. She
reported that a TENS unit and hot and cold packs help somewhat. Earnest also
reported having sudden, severe headaches and active anxiety and depression.
Physical examination showed Earnest to have diffuse tenderness to touch, but
movement of the joints did not increase pain and she had normal range of motion.
FNP Davenport noted Earnest to have 18/18 fibromyalgia trigger points. Lumbar
flexion was limited by pain. No focal or motor weakness was noted. FNP
Davenport noted recent lab tests to show slightly elevated rheumatoid factor. X- 16 -

rays of the hands showed no evidence of inflammatory arthritis, but posttraumatic
deformity of the left distal radius was noted. FNP Davenport opined that Earnest
did not have rheumatoid arthritis but “definitely” had chronic pain and
fibromyalgia. FNP Davenport opined that the chronic pain was a combination of
chronic spinal pain from degenerative disc disease and fibromyalgia. FNP
Davenport considered Earnest’s medications to be “decent,” and she recommended
that Earnest follow up regularly with a spinal doctor, engage in mild regular
exercise, get some sound sleep, and treat her depression. (Tr. 448-51.)
Earnest returned to the Hannibal Free Clinic on December 4, 2014, for
follow up. She complained of headaches, which the Clinic considered to be
tension headaches. Earnest was continued on her medications. (Tr. 460.)
In a letter dated January 15, 2015, FNP Davenport described her
examination of Earnest in October 2014. She reported the examination to show no
evidence of any joint swelling or deformity consistent with rheumatoid arthritis,
but that Earnest had “widespread tenderness to touch and chronic pain consistent
with fibromyalgia. I believe her fibromyalgia arose out of her chronic low back
pain and disc disease. She is on appropriate therapy for this, but continues with
quite a bit of daily pain and fatigue.” (Tr. 453.)
Earnest returned to the Clinic on March 5 and was continued on her
medications. Protonix was added for gastrointestinal esophageal reflux. (Tr. 457.)
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On March 25, FNP Davenport completed a Mental Medical Source
Statement (MMSS) wherein she opined that Earnest had moderate limitations in
her ability to carry out simple instructions, understand and remember complex
instructions, carry out complex instructions, and make judgments on complex
work-related decisions. She further opined that Earnest had mild limitations in her
ability to make judgments on simple work-related decisions, and no limitations in
her ability to understand and remember simple instructions. FNP Davenport
explained that Earnest’s chronic fatigue and pain cause distraction, which limits
her ability to focus and concentrate and thereby adversely affects her ability to
remember instructions and make complex decisions. FNP Davenport further
opined that Earnest was moderately limited in her ability to respond appropriately
to usual work situations and to changes in a routine work setting and was mildly
limited in her ability to interact appropriately with the public, supervisors, and coworkers. FNP Davenport explained that stress increases Earnest’s pain, which
would worsen with changes in situations. FNP Davenport also reported that any
physical activity – and particularly repetitive motion – increases Earnest’s pain.
She reported that diffuse tenderness to touch and mild muscle deconditioning
supported her assessment of Earnest’s pain. FNP Davenport further opined that
Earnest would need a break to rest or change position every fifteen to twenty
minutes for at least ten minutes and, further, that Earnest would miss work at least
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four days a month and would be off task at least twenty-five percent of the time
while at work. (Tr. 486-90.)
Additional Evidence Considered by the Appeals Council
The Appeals Council considered additional medical records in its
determination to deny Earnest’s request for review. I must consider this additional
evidence in determining whether the ALJ's decision is supported by substantial
evidence. Frankl v. Shalala, 47 F.3d 935, 939 (8th Cir. 1995); Richmond v.
Shalala, 23 F.3d 1441, 1444 (8th Cir. 1994).
In conjunction with Earnest’s examination at the Medical Group on May 22,
2014, a separate disability evaluation was completed wherein it was noted that
examination showed Earnest to have decreased range of motion, decreased
strength, and joint pain with fibromyalgia. Earnest was diagnosed with traumatic
arthritis as well as anxiety and depression. (Tr. 495-96.)
Earnest visited the Medical Group on April 14, 2015, for symptoms
associated with an ear infection. (Tr. 497-500.) Earnest returned on May 22 with
complaints of dental pain associated with a dental infection. (Tr. 501-04.) Earnest
continued to have mouth pain on June 23. (Tr. 505-07.) Earnest visited the Clinic
on July 2 for follow up of the gum infection. She was continued on her treatment
regimen for all of her impairments. (Tr. 509.)

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The ALJ's Decision
The ALJ found that Earnest met the insured status requirements of the Social
Security Act through September 30, 2011. The ALJ found that Earnest had not
engaged in substantial gainful activity since July 1, 2007. The ALJ found
Earnest’s fibromyalgia, degenerative disc disease with cervical fusion, obesity,
diagnosis of neuropathy, depression, and anxiety to be severe impairments but that
she did not have an impairment or combination of impairments that met or
medically equaled an impairment listed in 20 CFR Part 404, Subpart P, Appendix
1. (Tr. 19-20.)
The ALJ found Earnest to have the RFC to perform light work, except that
she could
lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit
6 hours in an 8-hour day; and stand and/or walk 6 hours in an 8-hour
day. The claimant is unable to climb ladders. [She] can occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and crawl.
[She] can occasionally reach overhead and occasionally operate foot
pedal controls. The claimant is limited to simple, routine, and
repetitive work and occasional contact with supervisors, co-workers,
and the general public.
(Tr. 21.) The ALJ found Earnest unable to perform any of her past relevant work.
Considering Earnest’s age, education, work experience, and RFC, the ALJ found
vocational expert testimony to support a finding that Earnest could perform other
work as it exists in significant numbers in the national economy, and specifically,
order caller, router, and inspector. The ALJ thus found Earnest not to be under a
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disability from July 1, 2007, through the date of the decision. (Tr. 24-26.)
Discussion
To be eligible for SSI under the Social Security Act, Earnest must prove that
she is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker
v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The
Social Security Act defines disability 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. §
1382c(a)(3)(A). An individual will be declared disabled "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. § 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S.
137, 140-42 (1987). The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity. If the claimant is working, disability
benefits are denied. Next, the Commissioner decides whether the claimant has a
“severe” impairment or combination of impairments, meaning that which
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significantly limits her ability to do basic work activities. If the claimant's
impairment(s) is not severe, then she is not disabled. The Commissioner then
determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, she is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform her past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits.
I must affirm the Commissioner’s decision if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402
U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
Substantial evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion. Johnson v. Apfel, 240
F.3d 1145, 1147 (8th Cir. 2001). Determining whether there is substantial
evidence requires scrutinizing analysis. Coleman v. Astrue, 498 F.3d 767, 770 (8th
Cir. 2007).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, I must review the entire
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administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff’s vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff’s
impairments.

6.

The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). I must consider evidence which supports the
Commissioner's decision as well as any evidence that fairly detracts from the
decision. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010). If, after
reviewing the entire record, it is possible to draw two inconsistent positions and the
Commissioner has adopted one of those positions, I must affirm the
Commissioner’s decision. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012).
I may not reverse the Commissioner’s decision merely because substantial
evidence could also support a contrary outcome. McNamara, 590 F.3d at 610.
As noted above, Earnest challenges the ALJ’s treatment of FNP Davenport’s
opinion as well as the extent to which the ALJ considered her impairment of
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fibromyalgia when assessing her RFC. While the ALJ accorded proper treatment
to FNP Davenport’s opinion evidence, I find that he failed to adequately consider
the medical evidence of record relating to Earnest’s diagnosed impairment of
fibromyalgia and chronic pain. I will therefore remand the matter for further
consideration.
A.

Weight Given to FNP Davenport’s Opinion Evidence
The ALJ gave no weight to the March 2015 MMSS completed by FNP

Davenport, finding that it was 1) procured by Earnest’s counsel, 2) outside the area
of the FNP’s expertise, and 3) not rendered by an acceptable medical source under
the Regulations. Because the ALJ provided sufficient reasons to disregard the
opinions expressed in this MMSS, and his reasons are supported by substantial
evidence on the record, he did not err.
“Medical opinions are statements from . . . acceptable medical sources that
reflect judgments about the nature and severity of [a claimant’s] impairments,
including [their] symptoms, diagnosis and prognosis, what [they] can still do
despite impairment(s), and [their] physical or mental restrictions.” 20 C.F.R. §
416.927(a)(2). Nurse practitioners are not “acceptable medical sources” and
cannot give medical opinions. 20 C.F.R. § 416.913(d)(1); SSR 06-03p, 2006 WL
2329939, at *2 (Aug. 9, 2006). While the Regulations permit an ALJ to consider
evidence from these sources to show the severity of a claimant’s impairment(s) and
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how it affects the claimant’s ability to work, see 20 C.F.R. § 416.913(d), the
factors for weighing medical opinion evidence do not explicitly apply.4 SSR 0603p, 2006 WL 2329939, at *4-5. Accordingly, the ALJ did not err in considering
the fact that FNP Davenport was not an acceptable medical source in determining
not to accord any weight to her opinion evidence.
Further, the ALJ noted that FNP Davenport rendered an opinion on
Earnest’s mental ability to perform work-related functions when Davenport herself
is a nurse practitioner in rheumatology. Because Davenport is not a mental health
specialist, her opinion regarding the vocational implications of Earnest’s mental
limitations is entitled to no weight. Keeling v. Colvin, No. 4:14-CV-1414 JAR,
2015 WL 5638059, at *9 (E.D. Mo. Sept. 24, 2015) (citing 20 C.F.R. §
416.927(c)(5)). See also Thomas v. Barnhart, 130 F. App'x 62, 64 (8th Cir. 2005)
(ALJ’s rejection of physician’s opinion upheld in part because of physician’s lack
of expertise in relevant field).
Whether the ALJ improperly considered counsel’s involvement in securing
Davenport’s opinion in this matter is inconsequential given that the ALJ properly
disregarded this opinion evidence for the reasons stated above.
B.

Fibromyalgia and RFC
In Brosnahan v. Barnhart, 336 F.3d 671 (8th Cir. 2003), the Eighth Circuit

4

These factors are set out at 20 C.F.R. § 416.927(c).
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recognized that fibromyalgia is a chronic condition involving inflammation of the
fibrous and connective tissue, “causing long-term but variable levels of muscle and
joint pain, stiffness, and fatigue.” Id. at 672 n.1. Diagnosis of fibromyalgia is
“usually made after eliminating other conditions, as there are no confirming
diagnostic tests.” Id. Consistent trigger-point findings and consistent complaints
during frequent physicians’ visits of variable and unpredictable pain, stiffness,
fatigue, and ability to function provide evidence of fibromyalgia, which can be
disabling. Id. at 678.
Evidence before the ALJ here showed that Earnest began complaining of hip
and shoulder pain in October 2008 and was first prescribed pain medication at that
time. She thereafter regularly complained to her healthcare providers that she
experienced increasingly widespread muscle and joint pain, and she was
continually prescribed pain medication. In December 2009, her treating physician
first suspected fibromyalgia and began treating her as though she had the
condition. Earnest’s first affirmative diagnosis of fibromyalgia came in July 2011.
Earnest continued in this diagnosis throughout the remainder of her recorded
treatment, and her treatment regimen consisted of increasing dosages and strengths
of pain medication and muscle relaxants, with little relief. From October 2008 to
March 2015, Earnest saw, at a minimum, seven different health care providers –
including treating physicians and specialists – on no less than twenty-five separate
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occasions for her complaints of widespread chronic pain, including in her hips,
shoulders, legs, and low back.5
Despite this extensive evidence of consistent complaints, diagnoses, and
ineffective treatment from numerous providers over the course of seven years, the
ALJ addressed only Earnest’s first visit to the Hannibal Free Clinic in January
2009, noted by the ALJ to show a normal exam; the consultative physical
examination conducted in June 2013, noted by the ALJ to reveal no limitations;
and Earnest’s one visit with FNP Davenport in October 2014, summarized by the
ALJ to show multiple trigger points, tenderness to touch, and limitation in lumbar
motion. Although the ALJ did not err when he disregarded FNP Davenport’s
March 2015 MMSS, he nevertheless failed to address and/or acknowledge the
extensive treatment provided to Earnest for her fibromyalgia and associated
chronic pain throughout her seven-year treatment history. An ALJ cannot merely
“pick and [choose] only evidence in the record buttressing his conclusion,” Taylor
o/b/o McKinnies v. Barnhart, 333 F. Supp. 2d 846, 856 (8th Cir. 2004), and it is
not within the province of this Court to speculate as to whether or why the ALJ
may have rejected certain evidence. Jones v. Chater, 65 F.3d 102, 104 (8th Cir.
1995). While the ALJ may have considered and for valid reasons rejected this
evidence, I am unable to determine whether any such rejection is based on

5

Thirteen of these visits came after her alleged onset date of March 12, 2013.
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substantial evidence given the ALJ’s wholesale failure to address it. Id.
I also note that most of Earnest’s treatment for fibromyalgia and chronic
pain came from the Hannibal Free Clinic, but that the ALJ addressed only her first
visit at the Clinic in January 2009 – over four years prior to Earnest’s alleged onset
date. The ALJ’s decision is silent as to Earnest’s numerous visits to the Clinic
during the relevant period for chronic pain management, as well as her long term
use of powerful pain medication prescribed and managed by the Clinic. The ALJ
may not simply ignore relevant evidence. Reeder v. Apfel, 214 F.3d 984, 988 (8th
Cir. 2000). If the ALJ believed that the Clinic providers’ treatment notes could not
assist him in determining disability, given Earnest’s extensive treatment history, he
was obligated to contact them for additional evidence or clarification, and for an
assessment of how Earnest’s impairments limit her ability to engage in workrelated activities. O’Donnell v. Barnhart, 318 F.3d 811, 818 (8th Cir. 2003). See
also Bowman v. Barnhart, 310 F.3d 1080, 1085 (8th Cir. 2002) (where treatment
notes fail to detail a claimant’s functional abilities, ALJ had obligation to contact
treating physician to obtain assessment of how claimant’s impairments affect
ability to engage in work-related activities); Vaughn v. Heckler, 741 F.2d 177, 179
(8th Cir. 1984) (if treating physician has not issued an opinion which can be
adequately related to the disability standard, ALJ is obligated to address precise
inquiry to physician in order to clarify record).
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Despite the extensive and long term treatment history of Earnest’s
fibromyalgia and chronic pain, as evidenced by numerous records from treating
healthcare providers, the ALJ failed to address this relevant evidence in his
decision and instead relied on only the opinion of a non-treating consulting
physician to find Earnest to have the physical RFC to perform work-related
activities. The ALJ made no inquiry of any of Earnest’s treating providers
regarding her ability to function in the workplace. Because the ALJ failed to
consider all of the relevant evidence in making his determination that Earnest’s
medically determinable impairments, including fibromyalgia, did not rise to the
level of disability, I cannot say that the Commissioner's decision is supported by
substantial evidence on the record as a whole.
I will therefore remand this matter to the Commissioner for further
proceedings. Upon remand, the ALJ is encouraged to contact Earnest’s treating
sources for functional assessments as to how her impairments affect her ability to
engage in specific work-related activities. Bowman, 310 F.3d at 1085. Upon
receipt of such evidence, the ALJ shall reconsider the record as a whole, including
the medical and non-medical evidence of record as well as Earnest’s own
description of her symptoms and limitations, and reassess her RFC. This
reassessed RFC shall be based on some medical evidence in the record and shall be
accompanied by a discussion and description of how the evidence supports each
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RFC conclusion. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007); SSR 96-8p,
1996 WL 374184, at *7 (July 2, 1996).
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED, and this case is REMANDED for further proceedings consistent
with this opinion.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 12th day of June, 2017.

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