Knight v. Colvin
MEMORANDUM AND ORDER re: 15 SOCIAL SECURITY BRIEF filed by Plaintiff Debra Knight ; For the reasons discussed above, the Court finds that the Commissioner's decision is not supported by substantial evidence in the record as a whole. Accor dingly, IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405 (g) for further proceedings.. Signed by District Judge Carol E. Jackson on 9/2/14. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DEBRA J. KNIGHT,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 4:13-CV-1191 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On October 20, 2010, plaintiff Debra Knight filed applications for a period of
disability, disability insurance, Title II, 42 U.S.C. §§ 401 et seq., and supplemental
security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of
March 31, 2007, which was also the last date of her insured status.1 (Tr. 166-78).
After plaintiff’s applications were denied on initial consideration (Tr. 115), she
requested a hearing from an Administrative Law Judge (ALJ). (Tr. 125-26).
Plaintiff and counsel appeared for a hearing on February 29, 2012. (Tr. 68-107).
On May 25, 2012, the ALJ issued a decision finding that plaintiff was not disabled
before March 31, 2007. (Tr. 10-25). The Appeals Council denied plaintiff’s request for
Plaintiff previously filed an application on November 13, 2008, also alleging
disability beginning on March 31, 2007. That claim was initially denied on March 5,
2009, and was not appealed. The ALJ reopened the earlier claim upon a finding of
good cause. See ALJ Decision. (Tr. 10).
review on May 8, 2013. (Tr. 1-6). Accordingly, the ALJ’s decision stands as the
Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability Application Documents
In her Disability Report (Tr. 194-201), plaintiff listed her disabling conditions as
fybromyalgia; severe widespread muscle pain, tenderness, and weakness; chronic
fatigue syndrome; depression, malaise and anxiety; significant short-term memory
loss; difficulty concentrating and focus; osteoarthritis; residuals of past back injury;
neck pain and immobility; and sleep apnea. Between 2002 and 2008, she held jobs
as a cashier, child care worker, envelope stuffer, school kitchen worker, and teacher’s
aide. (Tr. 197). When the applications were filed in 2010, plaintiff’s medications
included Ampheta S/Combo,2 Cymbalta,3 Hydrocodone/APAP,4 and Propranolol.5 (Tr.
Adderall, or Amphetamine Salt Combo, is a combination of stimulants
(amphetamine and dextroamphetamine) and is used to treat attention-deficit
hyperactivity disorder and narcolepsy. http://www.webmd.com/drugs/drug-63164Adderall+XR+Oral%2F.aspx?drugid=63164 (last visited May 13, 2014) and
http://www.pdrhealth.com/drugs/adderall (last visited on May 13, 2014).
Cymbalta, or Duloxetine, is used to treat depression and generalized anxiety
disorder; pain and tingling caused by diabetic neuropathy and fibromyalgia.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009).
Hydrocodone/APAP, or Lortab, is a combination of Acetaminophen and
hydrocodone bitartrate, a semisynthetic narcotic analgesic, indicated for the relief of
moderate to moderately severe pain. See Phys. Desk Ref. 3314-15 (60th ed. 2006).
Propranolol is used to treat high blood pressure, abnormal heart rhythms, heart
disease, pheochromocytoma (tumor on a small gland near the kidneys), and certain
types of tremor. It is also used to prevent angina (chest pain) and migraine headaches.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682607.html (last visited May
Plaintiff completed a Function Report on December 16, 2008. (Tr. 254-66). She
wrote that she was extremely stiff upon waking and felt too ill to eat breakfast. She
required two to three hours to perform personal care and often required her husband’s
help to dress. She usually attempted one household chore, such as making her bed
or doing laundry, but experienced extreme fatigue, chest pain, and shortness of breath
if she exerted herself for more than 15 minutes. She described her sleep as very
restless, due to pain from staying in one position. (Tr. 255-56). Throughout the day
she walked from room to room, skimmed magazines, and watched birds from her deck.
Reading and watching television put her to sleep. “Real cooking” took her 3 to 4
hours, so her husband usually cooked the evening meal.
She drove to the bank or
post office once or twice a month, but driving longer than 15 minutes caused pain and
fatigue. She accompanied her husband to the grocery store. Her husband paid the
bills, but plaintiff was able to manage bank accounts and count change. She needed
reminders to take her medicine. She was no longer able to complete yard work, walk
outdoors, paint, or read. She spent time with family members but found socializing
with friends to be too taxing. Plaintiff had difficulties with lifting, bending, standing,
squatting, reaching, walking, sitting, kneeling, climbing stairs, using her hands,
completing tasks, understanding, following instructions, memory and concentration.
She no longer handled stress well. She required a raised toilet seat and elevated
counters to make attending to her personal care less taxing.
Plaintiff’s Work History Report shows that she was employed doing factory
assembly work for 19 years, until March 1999. Starting in 2002, she held a series of
short-term jobs, working in a high school kitchen (2002), as a cashier at Wal-Mart
(2002), as a secretary for Kelly Services (2005), a teacher’s aide (2003), and in a day
care center (2008). (Tr. 246). Plaintiff wrote of her work at the day care center,
“They always asked me to work full time. I told them it was not physically possible for
me. . . [T]he woman I worked with . . . would do all the lifting of the babies – she
could hand them to me, then I could bottle feed them [and] rock them to sleep.” (Tr.
232). Her co-worker wrote that she helped plaintiff lift the children because plaintiff
was afraid she would drop them. “She hurt all the time in her arms and legs.” (Tr.
B. Testimony at Hearing
Plaintiff testified that she graduated from high school. (Tr. 99). She resided
with her husband, who was retired and received a pension and Social Security. (Tr.
70-71). She had previously worked assembling small electrical units. (Tr. 91).
The ALJ explained that the medical information in the present record did not
date back to March 2007, the date on which plaintiff was last insured. (Tr. 75, 77).
Therefore, the ALJ retrieved the medical records associated with the prior claim.
Plaintiff testified that she was in too much pain from fibromyalgia “to do
anything at all anymore.” (Tr. 77).
The pain caused her to toss and turn while
sleeping and she estimated that she slept between three and five hours a night. A
sleep study established that she had sleep apnea.
When questioned by the ALJ,
plaintiff acknowledged that she did not follow through with treatment for the condition
but explained that she did not have health insurance and so was often unable to
comply with some recommendations. (Tr. 83-84).6
Plaintiff had been insured through her husband’s employer. When he retired,
she extended her coverage through COBRA until it expired.
When asked what she did during the day, plaintiff responded, “Not a lot.” She
sat around, got up and walked, and sat again. She did some light housework, but her
husband took care of most tasks. (Tr. 100). She was able to make sandwiches but
it took her six hours to cook a meal the last time she attempted to do so. She was
able to do laundry, but her husband had to carry it up and down the stairs for her.
Watching television put her to sleep and she did not read because her vision was
blurry. (Tr. 102-03). She did not use a computer. She occasionally went grocery
shopping but otherwise did not go anywhere, which she found upsetting.
When she worked as an assembler, plaintiff stood all day and lifted 20 pounds
occasionally and 75 pounds infrequently. (Tr. 91-92). The work became too physically
demanding for her to continue. She testified that she was crying at work and had
incidents “like passing out.” Once, an ambulance was called because she thought she
was having a heart attack. She continued to have “really bad chest pains” in which her
chest got really tight and she experienced pain. It made her very frightened. (Tr. 92).
Her physician told her that the chest pain might be due to the fibromyalgia, because
she apparently did not have a cardiac condition. She took Propranolol to treat the
chest pain. After leaving her position with the factory, plaintiff worked as a retail sales
clerk, daycare provider, envelope stuffer, kitchen helper, teacher aide and a poll
worker. (Tr. 95-96). These positions did not rise to the level of substantial gainful
employment. (Tr. 12).
Delores Gonzalez, M.Ed., a vocational expert, provided testimony regarding
plaintiff’s past work. Ms. Gonzalez testified that plaintiff’s work as a retail sales clerk
is classified as light and semi-skilled; the day care worker position is classified as light
and semi-skilled and has a Specific Vocational Preparation (SVP) level of 47; envelope
stuffer is classified as light and unskilled with an SVP of 2; kitchen helper is medium
and unskilled with an SVP of 2; teacher aide is light and semi-skilled with an SVP of 3;
and production assembler, as plaintiff performed it during the relevant period, is light
and unskilled with an SVP of 2.
Ms. Gonzalez identified customer service as a
transferable skill that could be performed at the sedentary level as a telephone
customer service representative or receptionist. (Tr. 99).
C. Medical Records
Plaintiff’s discussion of the medical records begins in June 2005. Prior to that
date, she was diagnosed with mild mitral valve prolapse (Tr. 430), chronic fatigue
syndrome, and fibromyalgia (Tr. 382, 396, 370).
She periodically complained of
tightness in her chest, feeling light-headed, neck pain, shortness of breath, and pedal
edema. (Tr. 430, 342, 341, 380, 340). She consistently reported fatigue, tenderness
and swelling of the joints, irritable bowel, and gastroesophageal reflux disease.
344, 338, 377, 339). Her primary care physician, Rosemary Cannistraro, M.D., Ph.D.,
occasionally noted that the muscle beds were tender to palpation. (Tr. 382, 375). In
November 2004, plaintiff underwent a sleep evaluation and was diagnosed with
obstructive sleep apnea and psychophysiologic insomnia. (Tr. 371, 368-69, 365).
The SVP level listed for each occupation in the Dictionary of Occupational Titles
(DOT) connotes the time needed to learn the techniques, acquire the information, and
develop the facility needed for average work performance. Hulsey v. Astrue, 622 F.3d
917, 923 (8th Cir. 2010). At SVP level 2, an occupation requires more than a short
demonstration but not more than one month of vocational preparation; level 3 covers
occupations that require over 30 days and up to and including 3 months; level 4 covers
occupations that require over 3 months and up to and including 6 months. 20 C.F.R.
In June 2005, plaintiff’s medications included an antidepressant, Propranolol for
chest pain, Ultram,8 and Flexeril.9 (Tr. 318). In January 2006, Dr. Cannistraro noted
that plaintiff’s “antidepressant [was] not working,” that she “hurts all over” and “sleeps
all the time,” and had some anxiety.
tenderness on examination.
Dr. Cannistraro noted diffuse
In addition, plaintiff complained of abdominal pain,
headache and dizziness. Dr. Cannistraro recommended a trial of Cymbalta to help with
pain. In February 2006, plaintiff reported some improvement with Cymbalta, though
she still suffered poor quality sleep. Dr. Cannistraro reviewed the risks of untreated
sleep apnea and strongly recommended that plaintiff get a CPAP machine.
Cannistraro also increased the dosage of Cymbalta to 120 milligrams. (Tr. 334). In
March 2006, plaintiff reported that although she felt “mentally much better” on the
increased Cymbalta, her pain was still “bad.” She was unable to babysit and had tried
working at Wal-mart but felt pain when lifting bags. She could not sit or stand all day.
She had swollen joints in her hands and tenderness all over. Dr. Cannistraro noted
that plaintiff “may need to go on disability but is best served by being [illegible] with
full [treatment plan].” (Tr. 333). Plaintiff began taking Adderall in March 2006. (Tr.
In April 2006, plaintiff complained that she felt “terrible” and “hurt all over.”
She was not sleeping at all and had pain in her ribs which hurt when she moved. She
Ultram is a centrally-acting synthetic opioid indicated for management of
moderate to moderately severe chronic pain in adults who require around-the-clock
treatment of pain for extended periods of time. See Phys. Desk. Ref. 2428-29 (63rd
ed. 2009) (discussing extended release product).
Flexeril is indicated as an adjunct to rest and physical therapy for relief of
muscle spasm associated with acute musculoskeletal conditions. See Phys. Desk Ref.
1832-33 (60th ed. 2006).
had joint swelling and diffuse tenderness in her ribs, hands, and feet; depression;
fatigue; and headache.
Dr. Cannistraro noted that plaintiff was suffering an
exacerbation of the symptoms of chronic fatigue syndrome and fibromyalgia, with
generalized malaise. (Tr. 332). A chest x-ray was unremarkable. (Tr. 349). In May
2006, plaintiff reported an improvement in her symptoms, including improved sleep
and energy. (Tr. 331). She had started exercising which caused some shortness of
breath. In August 2006, Dr. Cannistraro noted that plaintiff continued to show
improvement, writing that “Adderall has really helped fatigue and given some quality
of life.” (Tr. 330). The fatigue and fibromyalgia were “in remission” and plaintiff felt
“better focus.” Medication records indicate that plaintiff’s dosage of Adderall increased
in August 2006. (Tr. 234).
In January 2007, Dr. Cannistraro noted that plaintiff’s fibromyalgia and chronic
fatigue syndrome were “significantly improved” with the addition of Cymbalta and
Adderall. (Tr. 329). Her fatigue was “much better” and “this is best” plaintiff had felt
“in years.” In March 2007, plaintiff continued to report improvement. She stated that
she had taken a trip to Texas and driven to the border where she walked across a
bridge over the Rio Grande. (Tr. 328). However, plaintiff told Dr. Cannistraro that the
Cymbalta was too expensive and medication records reflect a decrease in her dosage.
(Tr. 234).10 In August and November 2007, Fluoxetine
was listed among plaintiff’s
medications. (Tr. 326, 324).
On August 25, 2006, plaintiff paid $30.00 for 60 tablets of Cymbalta. The next
time she filled her prescription, she paid $111.75 for 30 tablets. (Tr. 234).
Prozac, or fluoxetine, is a psychotropic drug indicated for treatment of, inter
alia, major depressive disorder. See Phys. Desk. Ref. 1772-72 (60th ed. 2006).
In the following months, plaintiff reported that she felt more pain and was
having trouble sleeping as a result of weaning off Cymbalta. (Tr. 324-27). In February
2008, Dr. Cannistraro noted that plaintiff was experiencing increased depression,
worsened pain, more fatigue, decreased endurance, and sleep disorder, and had
multiple myalgias, numbness, and chest pain. (Tr. 323). A stress echocardiogram was
normal. (Tr. 451). In April 2008, Dr. Cannistraro noted that plaintiff’s fibromyalgia
was exacerbated and provided some samples of Lyrica.12 (Tr. 321). In July 2008, Dr.
Cannistraro noted that plaintiff was suffering from severe fatigue and spasms, after
trying “too much lifting.” (Tr. 320). The doctor noted that plaintiff sometimes worked
for the “s[chool] d[istrict]” and collapsed with exhaustion at the end of the day. Her
pain and fibromyalgia were “bad, [causing] aches all over.” Dr. Cannistraro opined
that plaintiff could not tolerate working 8 hours at a time. In October 2008, plaintiff
presented with shortness of breath, fatigue, muscular weakness, joint swelling and
In January 2009, plaintiff complained of shortness of breath, chest pains, and
joint tenderness. (Tr. 291). In March and May 2009, plaintiff complained of joint pain
and body aches. In July 2009, plaintiff was in a lot of pain; her hands were swollen
and painful, and she had diffuse tenderness of the joints. She reported being unable
to walk during the prior month. Dr. Cannistraro described her as fretful and crying.
Dr. Cannistraro prescribed Savella13 and Salonpas patches.14 (Tr. 294). In August
Lyrica, or Pregabalin, is an anticonvulsant indicated for the treatment of
neuropathic pain and postherpetic neuralgia and for the management of fibromyalgia.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a605045.html (last visited on
Mar. 9, 2011).
Savella is the brand name for Milnacipran, a selective serotonin and
norepinephrine re-uptake inhibitor indicated for the management of fibromyalgia.
2009, Dr. Cannistraro referred plaintiff to a pain clinic and suggested she try to
exercise. (Tr. 295). Plaintiff’s condition did not show improvement throughout 2009
and 2010. (Tr. 291-304). In August 2010, Dr. Cannistraro recommended that plaintiff
see a counselor to help her deal with stress. (Tr. 302).
Dr. Cannistraro completed a Physical Residual Functional Capacity Questionnaire
on September 20, 2010. (Tr. 274-78). Dr. Cannistraro described plaintiff’s symptoms
as muscular weakness and tenderness in legs, hands, and arms. She further stated
that plaintiff “flinche[d] with pain at slight touch in these areas.” She “has experienced
widespread pain in all four quadrants.” In response to a question asking her to identify
the clinical findings and objective signs supporting her assessment, Dr. Cannistraro
wrote: “fibromyalgia osteoarthritis, malaise and fatigue, chronic fatigue syndrome,
In response to a question about treatment and side effects, Dr.
Cannistraro wrote “Fibromyalgia has caused patient to be debilitated, suffering from
weakness, pain all over, and fatigue.” Plaintiff’s pain was likely to “frequently” interfere
with attention and concentration and she was incapable of performing even low-stress
work. Plaintiff’s impairments were expected to last 12 months or more and her
depression and anxiety contributed to the severity of her symptoms. Dr. Cannistraro
did not respond to a question asking whether plaintiff was a malingerer. (Tr. 274-75).
She also declined to answer any of the questions regarding plaintiff’s functional
limitations, writing that she was “unable to evaluate.”
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a609016.html (last visited on
Sept. 1, 2011).
Salonpas pain relief patches provide topical pain relief. See http://www.
accessdata.fda.gov/drugsatfda_docs/nda/2008/022029TOC.cfm (last visited on May
Dr. Cannistraro completed a second Residual Functional Capacity Questionnaire
on January 25, 2012. (Tr. 310-14). She noted that she saw plaintiff for one hour
every 6 to 8 weeks.
Plaintiff’s diagnoses included fibromyalgia, irritable bowel
syndrome, osteoarthritis, hypertension, esophageal reflux, and chronic pain syndrome.
Plaintiff’s symptoms included multiple tender points, nonrestorative sleep, chronic
fatigue, morning stiffness, muscle weakness, episodic subjective swelling, vestibular
dysfunction, numbness and tingling, Sicca symptoms, Raynaud’s phenomenon,
breathlessness, anxiety, depression, and chronic fatigue syndrome. This time, Dr.
Cannistraro stated that plaintiff’s emotional symptoms did not contribute to the
severity of plaintiff’s limitations. Plaintiff experienced pain all of the time, precipitated
by changing weather, movement or overuse, cold, and stress, and was “ok” only two
days a month. Dr. Cannistraro opined that plaintiff was able to walk one block; sit or
stand for 5 minutes before needing to change position; sit less than 2 hours in an 8hour day; walk or stand not at all; would have to walk every five minutes for about 2
minutes; and would need to take 10 breaks during an 8-hour day. In addition, plaintiff
needed to elevate her legs to waist level when sitting. Plaintiff was restricted to rarely
lifting less than 10 pounds and never lifting anything heavier, and she could rarely use
her hands for grasping, fine manipulation, or reaching. Her impairments could be
expected to cause more than 4 absences per month.
Plaintiff’s symptoms and
limitations had been present since June 2005.
Dr. Cannistraro explained the difference between her responses to the two
questionnaires by saying: “I saw the patient in the office on 1-23-12 and completed
the form while I examined the patient. The form on 9-20- was completed 3 weeks
after a visit with the patient and was not addressed during the visit.” (Tr. 443).
III. The ALJ’s Decision
In the decision issued on May 25, 2012, the ALJ made the following findings:
Plaintiff last met the insured status requirements of the Social Security
Act through March 31, 2007.
Plaintiff did not engage in substantial gainful activity as of March 31,
2007. Her work after that date did not rise to the level of substantial
Through March 31, 2007, plaintiff had the following severe impairments:
chronic fatigue syndrome and fibromyalgia.
Through March 31, 2007, plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity
of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Through March 31, 2007, plaintiff had the residual functional capacity to
perform medium work as defined in 20 C.F.R. 404.1567(c).15
Through March 31, 2007, plaintiff was able to perform her past relevant
work as a production assembler and retail sales clerk.
Plaintiff was not under a disability within the meaning of the Social
Security Act as of March 31, 2007, the alleged date of onset and the date
she was last insured.
IV. Legal Standards
The Court must affirm the Commissioner’s decision “if the decision is not based
on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so
that a reasonable mind might find it adequate to support the conclusion.” Estes v.
Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145,
Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567(c).
1147 (8th Cir. 2001)). If, after reviewing the record, the Court finds it possible to
draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, the Court must affirm the decision of the
Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quotations and
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and
(3) her disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at 942.
If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s residual functioning
capacity (‘RFC’), which is the most a claimant can do despite her limitations.” Moore,
572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)). “RFC is an administrative
assessment of the extent to which an individual’s
impairment(s), including any related symptoms, such as pain, may cause physical or
mental limitations or restrictions that may affect his or her capacity to do work-related
physical and mental activities.” Social Security Ruling (SSR) 96-8p, 1996 WL 374184,
*2. “[A] claimant’s RFC [is] based on all relevant evidence, including the medical
records, observations by treating physicians and others, and an individual’s own
description of his limitations.”
Moore, 572 F.3d at 523 (quotation and citation
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3)
the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant’s
complaints.” Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and
“Although ‘an ALJ may not discount a claimant’s allegations of
disabling pain solely because the objective medical evidence does not fully support
them,’ the ALJ may find that these allegations are not credible ‘if there are
inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d
785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must make
express credibility determinations and set forth the inconsistencies in the record which
caused the ALJ to reject the claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether a claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove her RFC and establish that she
cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
Plaintiff challenges the ALJ’s determination that she retained the RFC to perform
medium work, arguing that the ALJ improperly discounted the opinion of her treating
physician and failed to support the RFC determination with medical evidence. She also
argues that the ALJ did not present a proper hypothetical to the vocational expert.
A. The RFC Determination
A claimant’s RFC is “the most a claimant can still do despite his or her physical
or mental limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (internal
quotations, alteration and citations omitted). “The ALJ bears the primary responsibility
for determining a claimant’s RFC and because RFC is a medical question, some medical
evidence must support the determination of the claimant’s RFC.”
omitted). “However, the burden of persuasion to prove disability and demonstrate RFC
remains on the claimant.” Id. Even though the RFC assessment draws from medical
sources for support, it is ultimately an administrative determination reserved to the
Commissioner. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§
416.927(e)(2), 416.946 (2006)). “Because the social security disability hearing is nonadversarial, however, the ALJ’s duty to develop the record exists independent of the
claimant’s burden in this case.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
1. Dr. Cannistraro’s opinion
In reaching the RFC determination, the ALJ gave little weight to the opinion of
Dr. Cannistraro, plaintiff’s treating physician. Generally, a treating physician’s opinion
is given more weight than other sources in a disability proceeding. Anderson v. Astrue,
696 F.3d 790, 793 (8th Cir. 2012); (citing 20 C.F.R. § 404.1527(c)(2)). Indeed, when
the treating physician’s opinion is supported by proper medical testing, and is not
inconsistent with other substantial evidence in the record, the ALJ must give the
opinion controlling weight. Id. “However, [a]n ALJ may discount or even disregard the
opinion of a treating physician where other medical assessments are supported by
better or more thorough medical evidence, or where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions.” Wildman v.
Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (alteration in original) (internal quotation
omitted). Ultimately, the ALJ must “give good reasons” to explain the weight given the
treating physician’s opinion. 20 C.F.R. § 404.1527(c)(2). An ALJ may not substitute
his own opinions for the opinions of medical professionals. Ness v. Sullivan, 904 F.2d
432, 435 (8th Cir. 1990) (ALJ erred in substituting his opinion that plaintiff did not
seem depressed at hearing for doctor’s assessment of plaintiff’s mental health); see
also Pate-Fires v. Astrue, 564 F.3d 935, 946-47 (8th Cir. 2009) (ALJs may not “play
doctor”); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb
to the temptation to play doctor and make their own independent medical findings.”).
The ALJ gave multiple reasons for discounting Dr. Cannistraro’s opinion.
However, the ALJ’s analysis failed to take into account the nature of fibromyalgia.
Fibromyalgia’s symptoms typically include sleep deprivation, fatigue, and pain, and are
largely subjective. Forehand v. Barnhart, 364 F.3d 984, 987 (8th Cir. 2004); Tilley v.
Astrue, 580 F.3d 675, 681 (8th Cir. 2009). The disease is chronic, and “[d]iagnosis is
usually made after eliminating other conditions, as there are no confirming diagnostic
tests.” Brosnahan v. Barnhart, 336 F.3d 671, 672 n. 1 (8th Cir. 2003). The ALJ
discounted Dr. Cannistraro’s opinion because her treatment records did not reflect any
objective findings, such as limited range of motion, weakness, swelling, warmth, or
other signs which would support restrictive exertional and postural limitations. The
objective findings the ALJ was looking for in this case are not always present in
patients diagnosed with fibromyalgia. Fishbaugher v. Astrue, 878 F. Supp. 2d 939, 955
(D. Minn. 2012) (citing Sarchet v. Chater, 78 F.3d 305, 308 (7th Cir. 1996)). In
addition, “fibromyalgia often leads to distinct sleep derangement which often
contributes to a general cycle of daytime fatigue and pain.” Kelley v. Callahan, 133
F.3d 583, 589 (8th Cir. 1998). Plaintiff routinely reported that she suffered from poor
sleep and fatigue, for which no objective signs exist.
The ALJ’s analysis was inaccurate with respect to some of the medical evidence.
For example, the ALJ incorrectly stated that the treatment records did not include
findings of swelling or numbness.
The treatment notes reflect that swelling was
present on multiple occasions between 2003 and 2007, (Tr. 342, 240, 339, 387, 332,
323), and numbness was present in February 2008 (Tr. 323). The ALJ also stated that
Dr. Cannistraro never prescribed pain medications. (Tr. 21). The record shows that
plaintiff was prescribed Ultram and Flexeril in June 2005 (Tr. 318); Savella and
Salonpas in July 2009 (Tr. 294); and Gabapentin in May 2010 (Tr. 301). Starting in
2006, plaintiff was prescribed Cymbalta and Adderall to treat the symptoms of
fibromyalgia and chronic fatigue syndrome, including pain. (Tr. 387, 331).
The ALJ also noted that Dr. Cannistraro never directed plaintiff to restrict her
activities and, indeed, encouraged her to exercise.
recommendation of exercise to a patient with fibromyalgia is not necessarily
inconsistent with a finding of disability. See Brosnahan v. Barnhart, 336 F.3d 671, 678
(8th Cir. 2003) (distinguishing between exercise within the limits of a functional
capacity evaluation and capacity to engage in substantial gainful employment).
Similarly, the ALJ stated that Dr. Cannistraro’s opinion that plaintiff had been disabled
since 2005 was undermined by the brief periods of employment that plaintiff held
following that date. However, plaintiff held these positions for very short periods of
time and, in April 2006, she told Dr. Cannistraro that she was unable to sustain her
employment in daycare and at Wal-Mart due to her pain. (Tr. 333).
Based on the above, the Court finds that the ALJ did not “give good reasons” for
discrediting the opinion of Dr. Cannistraro. 20 C.F.R. § 404.1527(c)(2).
2. “Some” Medical Evidence
Plaintiff argues that the ALJ improperly failed to support the RFC determination
with citation to any medical evidence, relying on Lauer v. Apfel. 245 F.3d 700, 704 (8th
“[S]ome medical evidence,” must support the determination of the
claimant’s RFC, and the ALJ should obtain medical evidence that addresses the
claimant’s “ability to function in the workplace.” Lauer v. Apfel, 245 F.3d 700, 704 (8th
Cir. 2001) (citations omitted). This is not a case in which different treating doctors
have offered varied opinions. Tilley v. Astrue, 580 F.3d 675, 680 (8th Cir. 2009). The
only medical opinion evidence was provided by Dr. Cannistraro, who opined that
plaintiff was incapable of all work related activities.
Once the ALJ rejected that
assessment, there was no other medical evidence in the record from which the ALJ
could have ascertained that plaintiff has the RFC to perform medium work.
Defendant argues that the ALJ’s RFC determination is supported by evidence in
the record showing that plaintiff experienced temporary improvement on the date she
was last insured. On January 24, 2007, plaintiff reported that her chronic fatigue
syndrome and fibromyalgia had significantly improved once she began taking Cymbalta
and Adderal, and that she was feeling better than she had in years.
Similarly, on March 21, 2007, plaintiff reported that her fatigue had improved.
However, plaintiff’s subjective report does not satisfy the requirement of medical
evidence to support the RFC.
The RFC determination in this case is not support by substantial evidence in the
record and thus the matter must be remanded. On remand, the ALJ should consider
whether to obtain the opinion of a consultative examiner to determine whether plaintiff
was able to maintain substantial gainful employment on March 31, 2007. Plaintiff’s
challenge to the testimony of the vocational expert is moot.
For the reasons discussed above, the Court finds that the Commissioner’s
decision is not supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the decision of the Commissioner is reversed
and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g)
for further proceedings.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of September, 2014.
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