Foust v. Kijakazi

Filing 16

MEMORANDUM: For the reasons discussed above, the Commissioner's decision is not based upon substantial evidence on the record as a whole and the cause is therefore remanded to the Commissioner for further consideration in accordance with this M emorandum and Order. Upon remand, the ALJ shall consider whether Foust's diagnoses of fibromyalgia and myofascial pain syndrome are severe medically determinable impairments, properly evaluate the persuasiveness of the medical opinion evidence, obtain additional medical evidence if necessary, and formulate an RFC supported by substantial evidence. Signed by Magistrate Judge Abbie Crites-Leoni on 3/26/2024. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
GINA MARIE FOUST,
Plaintiff,
vs.
MARTIN O’MALLEY, 1
Commissioner of Social Security
Administration,
Defendant.

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Case No. 2:22-CV-84-ACL

MEMORANDUM
Plaintiff Gina Marie Foust brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Administration Commissioner’s denial of her application
for Disability Insurance Benefits (“DIB”) and supplemental security income (“SSI”) under Titles
II and XVI, respectively, of the Social Security Act.
An Administrative Law Judge (“ALJ”) found that, despite Foust’s severe impairments,
she was not disabled as she was capable of performing work existing in significant numbers in
the national economy.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.

Martin O'Malley became the Commissioner of Social Security on December 20, 2023.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin O'Malley shall be
substituted for Kilolo Kijakazi as the defendant in this suit. See 42 U.S.C. § 405(g).
1

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For the following reasons, the decision of the Commissioner will be reversed.
I. Procedural History
Foust filed her application for SSI on August 4, 2020 and her application for DIB on
August 7, 2020. (Tr. 253, 260.) She claimed she became unable to work on April 4, 2020 due
to bone spurs, back pain, anxiety, and depression. (Tr. 281.) Foust was 45 years of age at her
alleged onset of disability date. (Tr. 36.) Her applications were denied initially. (Tr. 106–07.)
Her claims were denied by an ALJ on November 24, 2021. (Tr. 9–26.) On October 14, 2022,
the Appeals Council denied Foust’s claim for review. (Tr. 1–3.) Thus, the decision of the ALJ
stands as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
In this action, Foust first argues that the ALJ “did not analyze the treating physician Dr.
Arvin Abueg’s opinion correctly under 404.1520.” (Doc. 13 at 6.) She next argues that the
“RFC constructed by the ALJ is not supported by the weight of the evidence.” Id. at 13.
II. The ALJ’s Determination
The ALJ first found that Foust met the insured status requirements of the Social Security
Act through June 30, 2025. (Tr. 14.) He stated that Foust had not engaged in substantial
gainful activity since the alleged onset date of her disability. Id. In addition, the ALJ
concluded that Foust had the following severe impairments: degenerative disc disease, mild
degenerative changes in the shoulders, obesity, asthma, depression, and anxiety. Id. The ALJ
found that Foust did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments. (Tr. 15.)
As to Foust’s RFC, the ALJ stated:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
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perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant can never climb ladders, ropes, or
scaffolds, and can occasionally kneel, crouch, crawl, stoop, and
climb ramps and stairs. She can have no exposure to whole-body
vibration, dangerous, unprotected heights, or dangerous,
unprotected, moving machinery. She can perform no overhead
tasks. She can frequently reach, handle, finger, feel, push, and
pull with both arms, but no pushing and pulling with her legs. She
can do simple, routine tasks with occasional, superficial interaction
with co-workers and supervisors.
(Tr. 18.)
The ALJ found that Foust was unable to perform her past work as a food service
manager, but was capable of performing other jobs existing in significant numbers in the national
economy, such as a cleaner, hand packer, or production worker. (Tr. 25–26.) The ALJ
therefore concluded that Foust was not under a disability, as defined in the Social Security Act
from April 4, 2020 through the date of the decision. (Tr. 26.)
The ALJ’s final decision reads as follows: “Based on the application for a period of
disability and disability insurance benefits protectively filed on August 4, 2020, the claimant is
not disabled under sections 216(i) and 223(d) of the Social Security Act.” Id.
III. Applicable Law
III.A. Standard of Review
The decision of the Commissioner must be affirmed 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 of the evidence, 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). This
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“substantial evidence test,” however, is “more than a mere search of the record for evidence
supporting the Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir.
2007) (internal quotation marks and citation omitted). “Substantial evidence on the record as a
whole . . . requires a more scrutinizing analysis.” Id. (internal quotation marks and citations
omitted).
To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire 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). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). However, even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v.
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Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as
a whole, we must affirm the administrative decision, even if the record could also have supported
an opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal
quotation marks and citation omitted); see also Jones ex rel. Morris v. Barnhart, 315 F.3d 974,
977 (8th Cir. 2003). Put another way, a court should “disturb the ALJ's decision only if it falls
outside the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015)
(citation omitted).
III.B. Determination of Disability
A 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 that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
has a disability when the claimant is “not only unable to do his previous work but cannot,
considering his age, education and work experience engage in any kind of substantial gainful
work which exists … in significant numbers in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
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looks to see “whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343
F.3d 602, 605 (8th Cir. 2003). “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, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary
to do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, or handling; (2)
capacities for seeing, hearing, and speaking; (3) understanding, reaching out, and remembering
simple instructions; (4) use of judgment; (5) responding appropriately to supervision, coworkers, and usual work situations; and (6) dealing with changes in a routine work setting. Id. §
416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “The sequential evaluation
process may be terminated at step two only when the claimant’s impairment or combination of
impairments would have no more than a minimal impact on his ability to work.” Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d);
see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”

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of the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or his physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. §
416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other
evidence listed in the regulations. See id. If a claimant retains the RFC to perform past
relevant work, then the claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at Step Four, and
his age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n. 5 (8th
Cir. 2000). The Commissioner must prove not only that the claimant’s RFC will allow the
claimant to make an adjustment to other work, but also that the other work exists in significant
numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004);
20 C.F.R. § 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists
in significant numbers in the national economy, then the Commissioner will find the claimant is
not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner
will find that the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). At Step Five, even though

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the burden of production shifts to the Commissioner, the burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The evaluation process for mental impairments is set forth in 20 C.F.R. §§ 404.1520a,
416.920a. The first step requires the Commissioner to “record the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment” in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. §§ 404.1520a(b)(1),
416.920a(b)(1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings “especially relevant to the ability to work are present or
absent.” 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must then rate the
degree of functional loss resulting from the impairments. See 20 C.F.R. §§ 404.1520a(b)(3),
416.920a(b)(3). Functional loss is rated on a scale that ranges from no limitation to a level of
severity which is incompatible with the ability to perform work-related activities. See id. Next,
the Commissioner must determine the severity of the impairment based on those ratings. See 20
C.F.R. §§ 404.1520a(c), 416.920a(c). If the impairment is severe, the Commissioner must
determine if it meets or equals a listed mental disorder. See 20 C.F.R. §§ 404.1520a(c)(2),
416.920a(c)(2). This is completed by comparing the presence of medical findings and the rating
of functional loss against the paragraph A and B criteria of the Listing of the appropriate mental
disorders. See id. If there is a severe impairment, but the impairment does not meet or equal
the listings, then the Commissioner must prepare an RFC assessment. See 20 C.F.R. §§
404.1520a(c)(3), 416.920a(c)(3).
IV. Discussion
Foust’s claims relate to the ALJ’s evaluation of the opinion evidence and resulting RFC
determination. Specifically, Foust challenges the ALJ’s findings regarding her physical

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impairments. As such, the Court’s discussion will focus on Foust’s physical impairments.
A. Evaluation of Opinion Evidence
Foust first argues that the ALJ did not analyze the opinion of treating physician Dr.
Arvin Abueg correctly under Social Security regulations.
On August 26, 2021, Dr. Abueg filed an MSS detailing Foust’s limitations resulting from
her impairments. See (Tr. 787–91.) Foust accurately summarizes Dr. Abueg’s medical
conclusions in her brief as follows:
Dr. Arvin Abueg…found that Plaintiff would only be able to stand
or walk about two hours in an eight-hour workday and sit for about
four hours. He also found that she would need to change positions
from sitting every 30 minutes and standing every 10 minutes and
would need to walk around six times during the eight-hour
workday for ten minutes each time. She would also need to lie
down at unpredictable times during the day when pain becomes
unbearable even when sitting or standing. All of this is due to her
lumbar spondylosis and fibromyalgia. Dr. Abueg further opined
that Plaintiff could only twist, stoop, bend, climb stairs or ladders
only occasionally and should never crouch. She can frequently
reach, handle, finger, feel and push with upper extremities, but
only occasionally push/pull with her lower extremities. Lastly,
Dr. Abueg opined Plaintiff would miss more than four days a
month of work, be off task 20% of the time and would need to take
four unscheduled breaks a day due to chronic fatigue and pain.
(Doc. 13 at 7) (internal citations omitted); see also (Tr. 788–91.)
Foust argues that the ALJ did not analyze Dr. Abueg’s MSS in accordance with 20
C.F.R. § 404.1520c, and—in particular—failed to “properly analyze the supportability and
consistency of the author of the medical source statement,” as is required under that regulation.
(Doc. 13 at 7.) The undersigned agrees.

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Under the revised Social Security regulations, 2 the agency “[w]ill not defer or give any
specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [the claimant’s] medical sources.” 20
C.F.R. §§ 404.1520c(a), 416.920c(b)(2). Instead, the ALJ must assess the persuasiveness of all
medical opinions and prior administrative medical findings 3 using a number of factors, including
1) the supportability of the opinion with objective medical evidence and explanations; 2) the
consistency of the opinion with evidence from other medical and nonmedical sources; 3) the
relationship of the provider to the claimant, including the length, nature and frequency of
treatment; 4) the specialization of the provider; and 5) other factors, including the source’s
familiarity with the Social Security guidelines. See 20 C.F.R. § 404.1520c.
In evaluating the persuasiveness of a medical opinion, the factors of supportability and
consistency are the most important for an ALJ to consider, and the ALJ must “explain how he
considered the supportability and consistency factors ... in [the] determination or decision.” 20
C.F.R. § 404.1520c(b)(2). An ALJ’s failure to address either the consistency or supportability
factor in assessing the persuasiveness of a medical opinion requires reversal. Bonnett v.
Kijakazi, 859 Fed. Appx. 19, 20 (8th Cir. 2021) (unpublished) (per curium) (citing Lucus v. Saul,
960 F.3d 1066, 1069-70 (8th Cir. 2020) (remanding where ALJ discredited physician’s opinion
without discussing factors contemplated in Regulation, as failure to comply with opinion-

2

The new regulations are applicable to Foust’s claims because she filed her appeal after March
27, 2017. See 20 C.F.R. §§ 404.1520c, 416.920c.
3

“Prior administrative medical findings” are findings, other than the ultimate determination on
whether a claimant is disabled, about medical issues made by the consultants at a prior level of
review in the claimant’s current claim based on their review of the evidence. 81 Fed. Reg. at
62,564; 20 C.F.R. § 404.1513(a)(5) (2017).
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evaluation Regulation was legal error)). ALJs need not explain in their decision how they
considered the other factors. 20 C.F.R. § 404.1520c(b)(2).
In his opinion, the ALJ concluded, in relevant part:

(Tr. 24.)

[Dr. Abueg’s August 26, 2021] assessment is not supported by the
diagnostic findings on imaging or the clinical findings on physical
or mental status examinations…Nor is it consistent with his
unwillingness to prescribe narcotic pain medication, or the
claimant’s rejection of surgery in 2018 followed by engagement in
substantial gainful activity, or her conservative treatment
modalities since then.

As an initial matter, the undersigned notes that the ALJ did not separately analyze the
supportability and consistency factors. Instead, the ALJ erred insofar as he conflated
supportability and consistency. Supportability is a measure of the relevancy of “objective
medical evidence and supporting explanations presented by a medical source ... to support his or
her medical opinion(s).” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1) (emphasis added).
Consistency measures the agreeableness of medical opinions with “evidence from other medical
sources and nonmedical sources in the claim.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2). Here,
the ALJ did not discuss each factor, but simply provided a brief analysis including the words
“supported” and “consistent” and cited no specific evidence in the record. An “ALJ’s sprinkling
of the words ‘support’ and ‘consistent’ in her cursory treatment of [medical] opinions is
insufficient to satisfy the Regulation's requirement that the ALJ ‘explain’ how she considered
these factors in determining the persuasiveness of a medical opinion.” Martini v. Kijakazi, No.
4:20 CV 1711 CDP, 2022 WL 705528, at *4 (E.D. Mo. Mar. 9, 2022). The Regulation requires
“more than a conclusory statement as to the supportability and consistency factors so a reviewing
court can make a meaningful assessment of a challenge to an ALJ's evaluation of the
persuasiveness of various medical opinions.” Hirner v. Saul, No. 2:21-CV-38 SRW, 2022 WL
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3153720, at *9 (E.D. Mo. Aug. 8, 2022).
Moreover, this error was not harmless, as the reasons cited by the ALJ for finding Dr.
Abueg’s opinion not persuasive are not supported by substantial evidence, as will be discussed
below.
Foust first argues that the ALJ’s statements regarding findings on imaging and Foust’s
rejection of surgery reflect a misunderstanding of the nature of fibromyalgia or myofascial pain.
The undersigned points out that the ALJ did find degenerative disc disease as a severe
impairment, and that the ALJ’s statement could apply to that impairment. Indeed, Dr. Abueg
indicated that that his opinions were supported by Foust’s diagnoses of “lumbar spondylosis” in
addition to fibromyalgia. (Tr. 788.) Nonetheless, the thrust of Foust’s argument is clear: the
ALJ did not properly consider Foust’s diagnoses of fibromyalgia or myofascial pain when
analyzing Dr. Abueg’s opinions.
With regard to fibromyalgia, the ALJ explicitly considered but ultimately rejected Foust’s
diagnosis of fibromyalgia at step two. (Tr. 15.) According to the ALJ:
Treatment records mention fibromyalgia; however the claimant has
not provided evidence from an acceptable medical source
establishing this impairment by any medically acceptable clinical
and laboratory diagnostic techniques. Specifically, there is no
evidence on this record of the requisite number of positive tender
points or that other disorders that could cause the symptoms or
signs were excluded.
(Tr. 15) (internal citations omitted).
Under the Social Security regulations—and as noted by the ALJ—in order for a claimant
to establish he or she has a medically determinable impairment, such impairment must result
from abnormalities “that can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 CFR § 416.921. Foust cites in her brief guidance from the Mayo
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Clinic on the proper methods for diagnosing fibromyalgia. (Doc. 13 at 8 n. 1.) That guidance
is as follows:
Diagnosing fibromyalgia is a two-stage process. First, because
many other disorders can mimic the symptoms of fibromyalgia, it’s
important that those be ruled out. Blood tests and other diagnostic
tests should be performed to confirm that the pain is not the result
of another condition, such as arthritis, lupus, a connective tissue
disorder or a thyroid disorder.
The second step in fibromyalgia diagnosis is assessing an
individual’s symptoms using a tender point count and validated
survey criteria, such as the Widespread Pain Index and Symptom
Severity Scale.
Liza Torborg, Mayo Clinic Q and A: Understanding myofascial pain syndrome and
fibromyalgia, MAYO CLINIC (Dec. 1, 2017), https://newsnetwork.mayoclinic.org/discussion/may
o-clinic-q-and-a-understanding-myofascial-pain-syndrome-and-fibromyalgia/.
Myofascial pain syndrome is similarly diagnosed clinically as follows:
Myofascial pain syndrome often can be identified based on symptoms and a
physical examination. During the exam, a health care provide may apply gentle
pressure to the painful muscle, feeling for tense areas. Certain ways of pressing
on a tender point can elicit specific responses, such as a muscle twitch.
Torborg, Mayo Clinic Q and A: Understanding myofascial pain syndrome and fibromyalgia,
https://newsnetwork.mayoclinic.org/discussion/mayo-clinic-q-and-a-understanding-myofascialpain-syndrome-and-fibromyalgia/.
Even assuming the ALJ properly found that fibromyalgia had not been established as a
medically determinable impairment, he erred in failing to consider Foust’s additional diagnosis
of myofascial pain syndrome when evaluating Dr. Abueg’s opinions. The medical record is
replete with references of myofascial pain syndrome in addition to her degenerative disc disease
and fibromyalgia, as summarized below:

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Foust saw Dr. Abueg for a telehealth visit on April 8, 2020, for complaints of chronic low
back pain beginning at least six months prior and occurring two to four times a day. (Tr. 509.)
The pain was present in the lumbar spine and thoracic spine and radiates to the right thigh. Id.
She rated the pain as a seven on a scale of one to ten, and indicated the pain was aggravated by
bending, sitting, and twisting. Id. Foust has tried nonsteroidal anti-inflammatory drugs with no
relief. (Tr. 510.) Imaging of the lumbar spine revealed no significant disc disease that would
explain her pain, “which increases her possibility of having myofascial pain.” Id. She had
been off work since March 1, 2020, and would continue to be off work until she saw pain
management. Id. On July 7, 2020, Foust presented to Dr. Abueg for follow-up of her lumbar
and thoracic pain. (Tr. 525.) Dr. Abueg noted that Foust had seen pain management and was
scheduled for repeat lumbar epidural steroid injections later that month. Id. She was still in
pain and had difficulty walking. Id. On examination, Dr. Abueg noted decreased range of
motion, tenderness, and decreased strength in the left shoulder; and decreased range of motion,
tenderness, bony tenderness, and spasm in the lumbar back. (Tr. 526.) Dr. Abueg diagnosed
her with myofascial pain, and chronic right SI joint pain. (Tr. 527.) He prescribed Voltaren 4
and Robaxin 5 for Foust’s pain. Id. On August 6, 2020, Foust reported that she was let go from
her job after her medical leave expired. (Tr. 534.) She had received two epidural steroid
injections, and was still having severe lumbar pain and difficulty with ambulating and standing.
Id. Foust could not tolerate her prescribed oral pain medications. Id. On examination, Dr.
Abueg again noted decreased range of motion, tenderness, and decreased strength in the left
4

Voltaren is a nonsteroidal anti-inflammatory drug indicated to relieve joint pain from arthritis.
See WebMD, http://www.webmd.com/drugs (last visited March 25, 2024).
5

Robaxin is indicated for the treatment of muscle spasms and pain. See WebMD,
http://www.webmd.com/drugs (last visited March 25, 2024).
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shoulder; and decreased range of motion, tenderness, bony tenderness, and spasm in the lumbar
back. (Tr. 535.) Dr. Abueg prescribed a lidocaine patch for Foust’s myofascial pain and joint
pain and referred her to pain management. (Tr. 536.)
Foust presented to nurse practitioner Jordan E. Hogan on September 3, 2020, for an
initial consultation for pain complaints upon the referral of Dr. Abueg. (Tr. 616.) Foust
described her pain as mostly across her low back and radiating to the bilateral hips to the
posterior leg and down to her feet. Id. She also reported numbness and tingling of the lower
extremities. Id. Foust indicated that her pain was constant and rated it as an eight on a scale of
one to ten. Id. On examination, Mr. Hogan noted an antalgic gait; tenderness of the lumbar
spine, lumbar paraspinals, and sacroiliac joints; and positive straight leg raise bilaterally. (Tr.
618.) Mr. Hogan found as follows as to myofascial pain syndrome:
The following muscles (Right and Left erector spinae, serratus posterior,
latissimus dorsi) produced a myofascial pain syndrome (MPS) during
examination with findings of restriction of full range of motion of that muscle
attachments from guarding, tenderness to palpation with active trigger points
within a palpable taut band and a local taut response to snapping palpation
producing a referred pain pattern.
Id. Mr. Hogan noted that imaging from March 2020 showed some minimal spondylosis of the
thoracic spine, and minimal spondylolisthesis at L4-5 with mild to moderate bilateral
neuroforaminal narrowing. (Tr. 618.) Mr. Hogan stated that Foust’s imaging was supported by
exam findings of a “significant myofascial pain syndrome.” Id. He noted that Foust’s pain
appeared to be “multifactorial at this time from a myofascial pain syndrome, sacroiliitis on the
right and left, and lumbar radiculopathy with an underlying facet syndrome.” Id. Mr. Hogan
recommended a “multidisciplinary approach” and did not recommend “long-term narcotics.”
Id.

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On February 18, 2021, Foust presented to Dr. Abueg with complaints of chronic pain in
the lumbar and thoracic spine for six months, which she described as aching and stabbing and
unresponsive to non-steroidal anti-inflammatory medications. (Tr. 685.) Dr. Abueg again
noted that Foust had undergone an x-ray and MRI of her lumbar spine with no significant disc
disease that would explain her pain, “which increases her possibility of having myofascial pain.”
(Tr. 686.) On examination, Dr. Abueg noted decreased range of motion, tenderness, and
decreased strength of the left shoulder; tenderness of the left knee; and decreased range of
motion, tenderness, bony tenderness, and spasm of the lumbar spine. (Tr. 687-88.) Dr. Abueg
diagnosed Foust with myofascial pain and fibromyalgia, and prescribed Lyrica. 6 (Tr. 688.) On
June 21, 2021, Foust presented to Dr. Abueg with complaints of shoulder, neck, and arm pain.
(Tr. 741.) On examination, Dr. Abueg noted tenderness, decreased range of motion, and
decreased strength in both shoulders; tenderness, crepitus, pain with movement, and decreased
range of motion of the neck; spasms, tenderness, and decreased range of motion of the lumbar
back. (Tr. 743.) He diagnosed Foust with cervical spondylosis without myelopathy,
myofascial pain, and chronic pain of both shoulders. (Tr. 744.)
The Court finds that the ALJ erred in analyzing the persuasiveness of Dr. Abueg’s
opinions. The ALJ first cited the lack of “diagnostic findings on imaging or the clinical findings
on physical or mental status examinations, as evaluated above.” (Tr. 24.) The ALJ provides no
further explanation and does not cite to any evidence in the record. As such, it is unclear
whether the ALJ was referring to Dr. Abueg’s own findings on examination (which would relate
to the supportability factor) or to that of other providers (which would relate to the consistency

6

Lyrica is indicated for the treatment of pain in people with fibromyalgia. (last visited March 25,
2024).
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factor). As to his own findings, between July 7, 2020, and June 21, 2021, Dr. Abueg noted
abnormalities on examination, such as decreased range of motion, tenderness, and decreased
strength in the shoulders; tenderness, crepitus, and decreased range of motion of the neck;
decreased range of motion, tenderness, and spasm of the lumbar spine; and tenderness of the left
knee. (Tr. 526, 535, 687-88, 743.) He consistently diagnosed Foust with myofascial pain
syndrome beginning in July 2020. In February 2021, Dr. Abueg added a diagnosis of
fibromyalgia, and in June 2021 he included a diagnosis of cervical spondylosis without
myelopathy. (Tr. 688, 744.) As explained by Dr. Abueg in his treatment notes, the lack of
findings on imaging support the diagnosis of myofascial pain syndrome. (Tr. 510, 686.)
Despite these references in the record, the ALJ failed to discuss Foust’s diagnosis of myofascial
pain syndrome as supporting Dr. Abueg’s opinions regarding Foust’s limitations.
The ALJ also cited Dr. Abueg’s unwillingness to prescribe narcotic pain medication.
Although Dr. Abueg did not prescribe any narcotic pain medication, he did prescribe pain
medications, including Voltaren, Robaxin, and Lyrica. (Tr. 527, 688.) Moreover, as Foust
points out, Mr. Hogan stated that he did not recommend “long-term narcotics” for Foust’s pain.
(Tr. 618.) As such, the failure to prescribe narcotic medications alone does not serve as a valid
basis for the ALJ’s finding as to supportability.
With regard to consistency, the only findings related to this factor was the ALJ’s
reference to Foust’s “rejection of surgery in 2018 followed by engagement in substantial gainful
activity,” and her “conservative treatment modalities since then.” It is unclear how Foust’s
decision not to undergo lumbar surgery or her performance in substantial gainful activity two
years prior to her alleged onset of disability is relevant. 7 Notably, Foust was no longer working

7

The ALJ appeared to rely on imaging and findings on examination prior to Foust’s alleged onset
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at the time of her alleged onset of disability of April 4, 2020, and through the date of the ALJ’s
decision. These facts do not, therefore, support the ALJ’s determination that Dr. Abueg’s
opinions are inconsistent with the record. Foust’s “conservative treatment” is similarly not
inconsistent with Dr. Abueg’s opinions because myofascial pain syndrome, like fibromyalgia, is
not treated surgically.
Additionally, the ALJ did not discuss the fact that Dr. Abueg’s diagnoses and findings are
consistent with those of pain management nurse practitioner Mr. Hogan. Mr. Hogan noted the
following abnormalities on examination in September 2020: an antalgic gait; tenderness of the
lumbar spine, lumbar paraspinals, and sacroiliac joints; and positive straight leg raise bilaterally.
(Tr. 618.) Additionally, Mr. Hogan set out the specific clinical findings on examination that
established a diagnosis of myofascial pain syndrome. Id. Mr. Hogan concluded that Foust’s
imaging and exam findings were supportive of “significant myofascial pain syndrome.” Id. He
noted that Foust’s pain appeared to be “multifactorial at this time from a myofascial pain
syndrome, sacroiliitis on the right and left, and lumbar radiculopathy with an underlying facet
syndrome.” Id. This opinion is consistent with Dr. Abueg’s opinion that Foust is limited due
to a combination of lumbar spondylosis and myofascial pain syndrome and/or fibromyalgia.
The undersigned notes that, if the ALJ required further information about the bases of Dr.
Abueg’s opinions, he could have either contacted Dr. Abueg for clarification or obtained a
consultative examination. Social security hearings are to be non-adversarial, and an ALJ has a
duty to develop the record fully and fairly. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005).

of disability in other parts of his opinion in assessing the severity of her impairments. For
example, he cites examination findings from 2018 to find Foust had a steady gait. (Tr. 22, 422,
425.)
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This duty applies even in cases where the claimant is represented by counsel. Shannon v.
Chater, 54 F.3d 484, 488 (8th Cir. 1995).
In sum, the Court finds that the ALJ erred in analyzing the persuasiveness of the medical
opinion evidence of treating physician Dr. Abueg. This error affected the ALJ’s RFC
determination, which renders it without the support of substantial evidence.
Conclusion
For the reasons discussed above, the Commissioner’s decision is not based upon
substantial evidence on the record as a whole and the cause is therefore remanded to the
Commissioner for further consideration in accordance with this Memorandum and Order. Upon
remand, the ALJ shall consider whether Foust’s diagnoses of fibromyalgia and myofascial pain
syndrome are severe medically determinable impairments, properly evaluate the persuasiveness
of the medical opinion evidence, obtain additional medical evidence if necessary, and formulate
an RFC supported by substantial
evidence.

s/Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 26th day of March, 2024.

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